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1634 Eye St., NW Suite 1100
Washington, DC 20006
March 11, 1998
Dear Senator:
We write to urge you to oppose S.1482, the Communications Decency Act II (CDA II), sponsored by Senator Coats in
the upcoming Senate Commerce Committee markup. This new well-intentioned but misguided effort to censor
constitutionally-protected speech on the Internet is unconstitutional and ineffective. It goes down the same
mistaken path as did the first Communications Decency Act approved unanimously by the committee only to be struck
down by a 9-0 vote of the United States Supreme Court.
CDA II (S.1482) appears to cover a more narrow range of speech than its predecessor, but still suffers from
fundamental constitutional infirmities which will surely lead to yet another round of litigation. Moreover, both CDA
I & II are ultimately ineffective at addressing a very real problem: the availability of inappropriate material
online to children. We urge you to oppose S. 1482 for the following reasons:
CDA II will be no more effective the CDA I: On the global Internet, national censorship laws, no matter what
their design or intent, will never be effective at protecting children from material their parents consider
inappropriate. Even if it were possible to eliminate all of the inappropriate material from US-based Web sites,
foreign sites that contain the same material today would remain available. CDA II will drive the activity off shore.
But, because the Web makes Denmark as close as Durham, nothing will be gained.
CDA II's federally-imposed "harmful to minors" standard is unconstitutional on the Internet: The core of CDA
II is to set a single national defining speech which may not be made available to minors over the Internet. The US
Supreme Court has never approved of a single, national obscenity standard, nor has it approved a "harmful to minors"
statute based on a national, as opposed to a local standard. In fact, the leading Supreme Court opinion which upheld
obscenity law (and which is the basis for harmful to minors jurisprudence) demands that a diversity of local
community standards, not a single national standard, be allowed to develop. (See Miller v. United States.)
CDA II would create a "least common denominator" standard, allowing the most conservative jurisdiction in the
country to set the standard for the entire nation: If enacted, the 'harmful to minors' standard would presumably
apply no matter where in the country the speaker is located, or where the recipient of the speech happens to be. The
proposed statute allows a prosecutor in a jurisdiction with the most stringent standards to bring into court a
speaker from a jurisdiction with the most lenient standards. Thus, in order to avoid prosecution, everyone on the
Internet would be forced to speak in a manner consistent with the standards of the most conservative jurisdiction in
the country, or risk federal prosecution.
Given the uncertainly about the standard to be applied, a wide range of speech considered appropriate for some
minors, but not others, could be criminalized by the statute.
Application to all "commercial" transactions on the Web would stifle emerging electronic commerce and reach a
far broader range of speech than intended: While the bill is described as targeting only purveyors of
sexually-explicit speech, it in fact reaches to any entity that publishes, for "commercial distribution," material
found to violate the statute. "Commercial distribution" is not defined, but could well include a newspapers online
Web site where access is available by subscription, where commercial advertising is associated with the offending
speech, or where a non-profit organization solicits financial contributions together with the speech.
International enforcement of Internet censorship laws would embroil the United States government in unholy
alliances with anti-democratic regimes contrary to international human rights law: Some may argue that we should
enact this law and then enforce it internationally, with the cooperation of foreign governments. Yet, it stands to
reason that we will only obtain foreign cooperation from governments if we, the United States, help them enforce
their own Internet censorship laws. This would inevitably entangle the United States in aiding and abetting the
violation of individual human right to freedom of expression through "assistance" to governments that do not share
our commitment to freedom of expression and democracy.
The infirmities of the proposed legislation ought not to lead to the conclusion that there is nothing to be done
about the very real problem of Internet speech that is inappropriate for children. Increased awareness to this issue
has encouraged parents around the country to become more involved in their children's use of the Net, and has spurred
the development of blocking, filtering and other content selection tools that assist parents in creating a positive
experience for their children, consistent with their own family values. Rather than continuing to propose
unconstitutional and ineffective censorship laws, we hope that Congress can lend its support to the effort to
encourage parents to take responsibility for their children's Internet usage, and to encourage the development of
tools which can help parents. These efforts not a continuing cycle of hasty legislation and time-consuming
litigation will ultimately make the Internet a safe place for children and realize our most cherished First Amendment
values.
We are anxious to work with you on this very important issue. Please contact Daniel Weitzner ,
CDT's Deputy Director, for more information at 202-637.9800.
Sincerely Yours,
Jerry Berman
Executive Director
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