Memorandum

DATE:   June 7, 1995
TO:     Interested Senators and Telecommunications Staff
FROM:   Jill Lesser, People For the American Way Action
Fund    Danny Weitzner, Center for Democracy & Technology
RE:     The Communications Decency Act is clearly unconstitutional
        under Alliance for Community Media v. FCC.
----------------------------------------------------------------------

        Yesterday, the United States Court of Appeals for the District 
of Columbia issued an en banc decision in the case of  Alliance for
Community Media v. FCC, (Docket #93-1169).  That decision clearly
established that, if enacted, the Communications Decency Act would
be held unconstitutional.  The court stated that a ban on
indecency would be unconstitutional and that any regulation of
indecent speech must be accomplished in the least restrictive
manner possible, as established by a legislative record.  While
the court upheld the FCC's regulations, the decision was narrowly
based on the fact that there was no state action in the statute. 
However, it is indisputable that the proposed ban in the
Communications Decency Act constitutes state action. We believe
that members of  the Senate should reject the Communications
Decency Act and refuse to engage in the futile charade of enacting
legislation that would undoubtedly be held unconstitutional. 

The Facts of the Alliance Case
==============================

        The Alliance case concerns a challenge to the FCC's 
implementing regulations of  Section 10 of the Cable Television 
Consumer Protection and Competition Act of 1992. That section 
permitted cable operators to refuse to carry PEG and leased access
programming that the operator "reasonably believes describes or
depicts sexual or excretory activities or organs in a patently
offensive manner as measured by contemporary community standards
for the cable medium." (sections 10(a) and 10(c)).  The
regulations authorized cable operators to refuse to carry
"indecent programming on leased access.  Section 10(b) and the
implementing regulations then required a cable operator that
determined to carry indecent programming, to segregate on a single
channel and block the programming and satisfy a subscriber's
request to received such a blocked channel within thirty days of a
written request.

Unlike the Communications Decency Act Sections 10(a) and (c) do
Not Constitute State Action
===========================

         Judge Randolph, writing for the majority, upheld the
constitutionality of Sections 10(a) and 10(c) and their
implementing regulations based upon the determination that the
permissive language in the statute did not constitute state
action, and therefore was not subject to any First Amendment
scrutiny.  The Court found that Congress, in giving cable
operators editorial discretion, was merely shifting the editorial
control over leased and PEG access programming to cable operators
from cable programmers.  While the Court therefore did not have to
pass on the constitutionality of an indecency ban, it nonetheless
took the opportunity to state the following quite specifically:
While the government may [ ] restrict the showing of indecent
programs, it may do so only in a manner consistent with the First
Amendment.  See Sable Communications of California, Inc. v. FCC,
492 U.S. 115, 126 (1989)[setting forth the least restrictive means
test and striking down legislation totally banning indecent
interstate commercial telephone messages].  If decisions of cable
operators not to carry indecent programs on leased or PEG access
channels, decisions section 10(a) and 10 (c) permit, were treated
as decisions of the government, the Commission and the United
States would be hard put to defend the constitutionality of these
provisions (emphasis added).

        This language confirms the long-standing constitutional 
principle
that a wholesale ban on indecency is unconstitutional.  As this
court emphasized, "[o]bscenity has no constitutional protection,"
but indecency is constitutionally protected.  Thus the
Communications Decency Act, which seeks to establish a government
mandated prohibition on indecent communications, would clearly be
held unconstitutional. 

The Constitutionality of Section 10(b) Upheld Based on Nature of
the Technology and Least Restrictive Means
==========================================

        The D.C. Circuit then went on to consider the constitutionality
of the requirements established in subsection 10(b) and its
implementing regulations.  The question here was not whether this
was considered government regulation of speech, but whether in
regulating non-obscene speech, the FCC's regulations withstood the
exacting level of scrutiny required.  The court first compared the
decision in Pacifica Foundation v. FCC, 438 U.S. 726 (1978) with
the Sable decision and made two important observations: 
"First, the constitutionality of indecency regulation in a given
medium turns, in part, on the medium's characteristics.  Second,
in fashioning such regulation, the government must strive to
accommodate at least two competing interests: the interest in
limiting children's exposure to indecency and the interest of
adults in having access to such material."

        While the court found that under the record established by
Congress and the FCC the cable medium had much more in common with
the broadcast medium than the telephone medium, it made no such
determination for other media.  In fact, in the context of the
on-line computer networks that the Communications Decency Act
seeks to reach, no such congressional finding has been made and
there has been no examination of the unique nature of  the medium
at all.  The lack of such a record would make it impossible for a
court to do anything but strike down any regulation on non-obscene
computer based communications.  

        In the second observation above, the court emphasized the
importance of the rights of adults to have access to indecent
material, and it therefore applied the least restrictive means
test to the FCC's regulations pursuant to subsection 10(b).  While
some might disagree with the court's determination that the
segregation, blocking and waiting period established by the FCC
was the most effective and therefore "least restrictive means" for
protecting children from access to indecency on cable television,
it is indisputable that the Communications Decency Act indicates
no attempt to establish a least restrictive system that would
preserve the rights of adults to have access to certain material.

Exon Bill Fails Least Restrictive Means Test Because Congress has
not Explored Alternatives
=========================

        The Communications Decency Act attempts to amend existing rules
relating only to telephone and audiotext services, while adopting
the same goal of protecting minors.  However, interactive media is
materially different than analog telephone and audiotext
technology in that is offers users the ability to exercise control
over precisely what information one accesses.  Given the dramatic
difference between telephone technology and interactive services
such as the Internet and other online services, blocking by the
carrier as demanded by § 223 and the Communications Decency Act
would not meet the "least restrictive means" test.  Just as the
Sable court found broadcast indecency regulations inapplicable to
the telephone system because of differences in the medium,
regulations designed for audiotext services in the telephone
system are constitutionally inapplicable to new interactive media.

        Technologies already exist that enable users to access certain
information based on a variety of characteristics, or, to exclude
certain types of information from access.  With such filtering
technology, users, instead of the government or network operators,
can exercise control over the information content that they
receive in an interactive network environment.  User control could
be exercised in two ways.  First, one could screen out all
messages or programs based on information in the header.  If a
parent wanted to prevent a child from seeing a particular movie or
from participating in a particular online discussion group, then
the computer or other information appliance used by the child
could be set by the parent to screen out the objectionable
content.  Such features can often be protected with passwords
which would be assigned, for example, by the responsible adults in
the house.  Second, the same systems can be used to enable
blocking of content based on third-party rating systems.  For
example, those parents who accept TV Guide's judgment about the
presence of nudity and/or violence in particular programs, could
program their interactive TV sets to screen out all programs that
TV Guide has classified as violent.  The Senate has made no
attempt to review the existence or sufficiency of these technical
capabilities or their empowering characteristics for parents.
  
Conclusion 
==========

        The Alliance for Community Media decision has already been
reported widely in the press as a defeat for the civil liberties
community and a broadening of the government's ability to restrict
indecency in the media.  This, unfortunately, is true. However,
the decision also clearly establishes the unconstitutionality of
the Communications Decency Act and makes a good case for the study
proposed by Senator Patrick Leahy -- S. 714 The Child Protection,
User Empowerment, and Free Expression in Interactive Media Study
Bill.  That provision would permit a study of the means available
to protect children while maintaining a commitment to the First
Amendment rights of adults. 

        The two attached letters include lists of organizations that 
have
taken a position against the Communications Decency Act and in
support of the Leahy alternative.

For more information contact:
People For the American Way: (202) 467-4999
Jill Lesser -- jlessern@counsel.com
Leslie Harris -- laharris@tmn.com
Center for Democracy & Technology: (202) 637-9800
Daniel Weitzner -- djw@cdt.org
Jerry Berman -- berman@cdt.org

====================================================================

                                        April 27, 1995

Dear Senator:

        We write on behalf of a diverse coalition of civil liberties,
education, library,  other civic organizations, as well as
commercial producers and distributors of entertainment, 
information and works of art and journalists to express our strong
belief that the Communications Decency Act of 1995 (the "Act")
(currently sections 401 through 408 of S. 652) violates the First
Amendment rights of all Americans.  In the name of protecting
children, the Act which was added as an amendment to
telecommunications reform legislation, criminalizes the exchange
of First Amendment-protected material between adults and restricts
the broad range of material available by computer to only that
which is deemed appropriate for children.

        We agree with the sponsors of  the legislation that there are
many  problems inherent in allowing access by our nation's
children to material that may be physiologically or emotionally
harmful.  And we recognize that the computer age has brought with
it many new questions about the ways in which parents can protect
their own children.  However, the Communications Decency Act will
not accomplish the goals of  protecting children, will stifle the
development of new technology empowering users, including parents
to define their limits in cyberspace and, instead, will virtually
destroy the exploding world of on line communications.  

        Grafted onto a twenty-five year old provision of the
Communications Act of 1934 which was designed for the specific
purpose of preventing children's access to dial-a-porn services
and protecting people from harassing phone calls, the
Communications Decency Act  fails to accomplish the goals being
advanced by its sponsors, and it is unconstitutional on its face. 
The Act makes it a crime to produce or distribute by
telecommunications device any "indecent" communications that may
be accessible by a minor.  It also bans the dissemination of  "any
comment, request, suggestion, proposal, image or other
communications which is obscene, lewd, lascivious, filthy or
indecent."  These crimes are punishable by up to two years in jail
and a fine of up to $100,000.

        Contrary to the implications of much of the media coverage, the
Act is not merely about sex and pornography.  It covers virtually
all areas of speech.  It is also not just about cyberspace -- it
covers every "telecommunications device" and every organization,
large or small, with e-mail.  It would affect much more than
children by restricting private e-mail communications between
consenting adults. The Communications Decency Act also violates
the First Amendment rights of adults to see, hear and read
material -- as they choose -- that is not legally obscene.  There
is a broad range of material with sexual content that is
inappropriate for minors but important for adults, including
novels, sex education material, movies, videos and recordings. 
Adults do not lose their First Amendment rights because these
works are being transmitted in a new medium. 
          
        We recognize that the rapid spread of computer technology has
made it more difficult for parents to stop their children from
gaining access to inappropriate material, but computer experts are
already developing tools to help them.  This technology will put
the power to censor in the only place that it belongs -- in the
hands of parents. In addition,  legislation already exists in all
50 states, as well as on the federal level, to ensure that
material that is harmful to minors does not get into the hands of
minors.  To the extent that any additional legislative tools are
needed to help enforce existing laws in the information age, they
must be the result of careful analysis and public debate.

        The fast-paced development of the Internet and the immense
opportunities it holds for economic development, education and
civic participation have captured the nation's imagination.  The
freedom with which ideas flow on the Internet is unprecedented in
human history.  The Communications Decency Act attacks this
freedom.  Like the United States, the Internet cannot survive
without free speech.

        We urge you to oppose the Communications Decency Act and to
demand careful  consideration of the important issues it tries to
address.

Sincerely,

ACLU
Alliance for Community Media
American Arts Alliance
American Association of Law Libraries
American Association of University Professors
American Booksellers Foundation for Free Expression
American Library Association
American Society of Journalists and Authors
Association of American Publishers Inc.
Association of Performing Arts Presenters
Association of Research Libraries
Author's Guild
Center for Democracy and Technology
Competitive Enterprise Institute
Council of American Literary Magazines and Presses
Dance-USA
Electronic Frontier Foundation
Feminists for Free Expression
Freedom to Read Foundation
Human Rights Watch
Index on Censorship
Institute for Justice 
Literary Network
Magazine Publishers of America
Media Access Project
Media Alliance
National Alliance of Media Arts and Culture
National Association of Artist Organizations
National Campaign for Freedom of Expression
National Coalition Against Censorship
National Federation of Community Broadcasters
National Writer's Union
OMNI Magazine
OPERA America
PEN American Center
People for the American Way Action Fund
Periodical and Book Association of America Inc.
Recording Industry of America
Software Publishers Association
Theater Communications Group
The Society of Professional Journalists

==================================================================

Delivered to the U.S. Senate:

                                                        May 22, 1995

Dear Senator______:

We write to urge you to support S. 714, the "Child Protection, 
User Empowerment, and Free Expression in Interactive Media Study 
Bill" (S. 714) introduced by Senator Patrick Leahy (D-VT).  The 
legislation would require the Department of Justice and Commerce 
Departments to conduct a study of how to limit childrens' access 
to "violent, sexually-explicit, harassing, offensive, or 
otherwise unwanted material" consistent with the First Amendment 
and the free exchange of ideas.

As communications and computer firms, content providers, 
advertisers, trade associations and public interest organizations 
who have been working on various aspects of this issue, we 
believe that new interactive media raise many difficult, 
challenging issues regarding the protection of free speech, 
privacy, and access to controversial material.  Thus, we stand 
ready to work with the Administration and the Congress to explore 
all aspects of this issue as outlined in S. 714.

Legislation affecting the Internet and other new media is 
difficult to craft because of the need to reconcile a panoply of 
competing interests.  Among the interests that we believe must be 
satisfied are:

1.      Free speech and free press in interactive media  The 
First Amendment rights of both private individuals and commercial 
information providers must be fully protected;

2.      Child protection technology means should be available to 
enable parents to control children's access to material which 
parents find inappropriate;

3.      Service provider liability to assure the free flow of 
information and remove incentives to invade user's privacy, law 
must not force service providers into the position of being 
private censors.

4.      Privacy Individuals have both a free speech and privacy 
right to conduct private communications that may be considered 
offensive to others.

S. 714 identifies a number of critical questions that we believe 
deserve thorough study and  discussion.  First, is current law 
adequate to enable prosecution of child pornography and 
distribution of obscenity in online environments?  As has 
recently come to light, the Justice Department claims that it is 
vigorously prosecuting child pornographers and those who violate 
obscenity law.  Is more needed? Second, does law enforcement need 
more resources to investigate and prosecute under current law?

Finally, how can interactive technology itself help to resolve 
the issue.  As you may know,  there are technological means and 
user controls to enable parents to block access to objectionable 
materials, including material that is "violent, 
sexually-explicit, harassing, offensive, or otherwise unwanted."  
 Are such technologies and user controls available widely enough? 
 Are they easy enough for parents to use?  What steps can be taken
 to encourage the development of easy-to-use blocking technology. 
 We believe that interactive technology, in combination with 
voluntary industry standards, public education, and law, can 
resolve these access issues. 

For the above reasons, we urge you and others in the Senate to 
support S. 714. We believe the study will help both to develop 
broad understanding of the social, policy and technology 
challenges of new media as well as help policy makers formulate 
alternatives which best serve the public interest.  We are 
anxious to work with you to achieve these goals.


Sincerely,

American Advertising Federation
American Association of Advertising   
    Agencies
American Library Association
American Society of Newspaper Editors
Association of National Advertisers, Inc.
Association of Research Libraries 
Business Software Alliance
Center for Democracy and Technology
Computer and Communications Industry 
   Association
Direct Marketing Association
Electronic Frontier Foundation
Feminists For Free Expression
Magazine Publishers of America
Media Access Project
National Public Telecomputing Network
Newspaper Association of America
People For the American Way Action Fund
Recreational Software Advisory Counsel
Software Publishers Association
Times Mirror