MEMORANDUM TO: Interested Parties FROM: The American Civil Liberties Union DATE: May 24, 1995 RE: Circulating Draft of Revisions to the Exon Amendment ---------------------------------------------------------------- The American Civil Liberties Union has previously expressed its opposition to the "Communications Decency Act", proposed by Senator Exon as an amendment to the Telecommunications Competition and Deregulation Act of 1995 and approved on March 23rd by the Senate Commerce Committee. Yesterday, we obtained a draft of a revised version of the Exon Amendment ("the revised draft"), which was apparently written by members of Senator Exon's staff in consultation with representatives of the telecommunications industry, the Department of Justice, and conservative lobbying groups. In the following memorandum, we assert our opposition to the revised draft and clarify our continuing concern that the Exon amendment, in its existing or revised form, violates free speech and privacy rights. Despite its attempt to fix overbreadth problems in the Exon Amendment, subsection (e)'s regulation of online indecency still unconstitutionally reduces all online content to that which is suitable for children. Indecent speech is protected by the First Amendment. Sable Communications of Cal. v. FCC, 492 U.S. 115 (1989). The Government may only regulate indecent speech if it establishes a compelling governmental interest in the regulation and narrowly tailors the restriction to achieve that interest. Id. at 125. See also Pacifica Foundation v. FCC, 438 U.S. 726 (1978); Carlin Communications v. FCC, 749 F.2d 113 (2d Cir. 1984) (Carlin I); Carlin Communications v. FCC, 787 F.2d 846 (2d Cir. 1986) (Carlin II); Dial Information Services v. Thornburg, 938 F.2d 1535 (2d Cir. 1991). The revised draft, like the original Exon amendment, is unconstitutional because requiring users and content providers to reduce their content to what is suitable for children is not the least restrictive means for protecting minors from indecent material. The justifications for regulation of indecency in broadcasting and telephone audiotext services do not apply to interactive communications, in which users - including parents - have much more control over the content of the messages they receive. While subsection (f) provides some defenses from liability for online providers, the defenses are not available for online users and content providers who have a constitutional right to engage in " indecent" speech with other adults. Subsection (e) represents a substantial threat to First Amendment rights that will have a severe chilling effect on constitutionally protected speech. We have the following additional concerns about the revised draft: *Subsection (d) outlaws the online transmission of obscene materials without defining "obscenity." Using the test for obscenity articulated in Miller v. California, 413 U.S. 1 (1973), the federal government has chosen to prosecute online obscenity cases in conservative jurisdictions in order to take advantage of more restrictive "community standards." See Thomas v. United States, U.S. Court of Appeals for the Sixth Circuit, No. 94-6648 and No. 94-6649. This trend poses a severe threat that online users and providers will be forced to reduce content to that which would be acceptable under the "community standards" of the most conservative jurisdiction. *Subsection (d) subjects online transmission of "obscenity" to the same restrictions applied to the print medium, even though the justifications for regulation in the print world are not present in an interactive environment. *Subsections (d) and (e) extend liability for transmission of obscene or indecent communications to non-commercial in addition to commercial providers. This change would render the revised draft more restrictive of free speech than the original Exon amendment. *While subsection (f) provides some defenses for online providers, these defenses place smaller system operators at risk because they cannot afford to assert the defenses in court. *Subsection (f)(2) fails to protect providers who cede editorial control to an entity "which the defendant knows or had reason to know intends to engage in conduct that is likely to violate this section." This could pose serious problems for Internet providers that may have "reason to know" that certain newsgroups, web sites etc. are likely to contain material that some may find "obscene" or "indecent". *Subsection (f)(3) gives the Federal Communications Commission the power to issue regulations regarding methods in which providers may restrict access in order to avoid liability. Giving federal regulators the authority to determine the rules for distributing online content will have a severe chilling effect on online speech. The revised draft continues to subject an industry that has blossomed without government control to an unprecedented aount of interference and intrusion. It seriously threatens the free flow of information and the diversity of content transmitted over online networks. To achieve the liberating potential of the information superhighway, Congress must ensure that interactive technologies enhance rather than stifle democratic values. The American Civil Liberties Union therefore urges you to oppose the Exon amendment as it currently stands and to oppose the revised language under consideration.