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ACLU Trial Update 5/10/96



Friday, May 10, 1996

PHILADELPHIA -- A three-judge panel heard closing arguments today
regarding a law that would criminalize free speech in cyberspace. 
Plaintiffs and defendants each had approximately two hours to make
their case and answer questions from the judges.  

Much of the government's argument today hinged on a proposal
requiring Internet users to identify so-called indecent or patently
offensive words or images with an electronic "tag."  But by the end
of the day, government lawyers conceded -- under pointed questioning
from the judges -- that it would be impossible to implement this
scheme given the technology currently available.

That concession alone, the ACLU said, could justify granting
plaintiff's motion for a preliminary injunction against the
censorship provisions of the Communications Decency Act, which
criminalizes making available to minors "indecent" or "patently
offensive" speech online.  

"It's about time that the government conceded what the cyberspace
community has known all along -- that this is an unworkable law,"
said Christopher Hansen, who presented oral arguments for the ACLU. 
"And even if it were feasible, it is constitutionally unthinkable to
give the government the power to restrict valuable speech, or to
compel people to pejoratively label their speech." 

Government lawyers also acknowledged today that the law criminalizes
speech of value -- e.g.,  artistic, literary or medical information
-- not just "pornography" or other prurient words or images that
aren't covered under existing obscenity laws.  In fact, as Hansen
pointed out to the Court, Congress made sure that the Communications
Decency Act applied specifically to libraries and educational
institutions, and rejected several opportunities to make any
exceptions for valuable speech.

Such an omission might have been a "legislative craftsmanship
problem," suggested Anthony Coppolino, one of the lawyers appearing
for the Department of Justice.  But that argument was met with
skepticism from the judges.

"The government is basically saying 'trust me' when it comes to
determining what kind of online words and images will be considered
'indecent' or 'patently offensive,'" said Marjorie Heins, a lawyer 
on the ACLU v. Reno team.  "But they were not able to offer a
coherent explanation as to what those terms mean." 

The risk involved to individuals in making such a determination is
especially grave when criminal penalties are involved, the ACLU
emphasized.  The CDA provides for penalties of up to two years in
jail and $250,000 in fines.   

Addressing this issue, Judge Stewart Dalzell asked the government
how it would view an individual such as ACLU plaintiff Kiyoshi
Kuromiya, who has vowed to maintain his website no matter what. 
Kuromiya has testified that his website, the Critical Path AIDS
Project, provides "lifesaving" information on safer sex practices --
some of it necessary sexually explicit --  aimed at reaching teens
around the world.  Justice Department lawyer Jason Baron responded
that if Mr. Kuromiya didn't want to comply, "he can take the

Overall, the ACLU said, plaintiffs succeeded in making three
essential points to the court:

--  The Communications Decency Act is a criminal statute with criminal

--  The law is aimed specifically at speech that is constitutionally

--  The government's tagging scheme would force every American to
censor him/herself to avoid risk of criminal prosecution. 

Plaintiffs also reminded the Court that the censorship law applies not
only to websites, but to newsgroups, chat rooms, mail exploders, and
other fora that constitute a vital part of the Internet.  The ACLU has
asserted in its brief -- and the government largely conceded today --
that various schemes for self-censorship would be unworkable in these
environments as well.

At the conclusion of today's proceedings, Chief Judge Dolores K.
Sloviter said that the Court would issue a ruling "in due course." 
Under expedited provisions, any appeal on rulings regarding the new
censorship law will be made directly to the U.S. Supreme Court.

ACLU v. Reno, which was filed the day the Communications Decency Act
was signed into law, was consolidated on February 26 with a second
case brought by the American Library Association and 26 co-plaintiffs,
known as the Citizens Internet Empowerment Coalition.  

Lawyers for the ACLU appearing before the judges are Christopher
Hansen, Marjorie Heins, Ann Beeson, and Stefan Presser, legal director
of the ACLU of Pennsylvania.  Attorney Bruce J. Ennis presented oral
arguments today on behalf of the ALA/CIEC coalition. 


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