Date: Thu, 3 Nov 1994 22:12:20 -0500 From: farber@central.cis.upenn.edu (David Farber) Subject: The University -- the Protector of the Bill of Rights ???? I am not suggesting that CMU violates law but rather that it does seem that blanket elimation of trees may violate constitutionally protected free speech and the University should defend that right rather than violate it. I wonder what books should and will be banned to under 18 students? Dave To quote one of the EFF Staff: This is odd, because the alt.sex hierarchy is, essentially, for the discussion of sexual matters, which is constitutionally protected.
>From comp.org.eff.talk, forwarded FYI Approved: BBoard.Maintainer@andrew.cmu.edu Return-path: rk39+@andrew.cmu.edu X-Andrew-Authenticated-as: 12605;andrew.cmu.edu;Robert Joseph Kuszewski Message-ID: 0iiFR=200iWG0Axds0@andrew.cmu.edu Date: Thu, 3 Nov 1994 12:00:59 -0500 (EST) From: Robert Joseph Kuszewski lizard+@CMU.EDU X-Andrew-Message-Size: 1574+0 Reply-To: advisor+@andrew.cmu.edu Subject: Sexually Explicit Bboards During the next few days, the university will be withdrawing some netnews bulletin board subscriptions from the public computer systems. This action is in response to a new university policy which is outlined below. The university's policy is to carry a very wide range of bulletin boards for the community, with no monitoring of the bulletin board contents. However, Pennsylvania laws prohibits us from carrying bulletin boards that are known to be used for the distribution of sexually explicit or obscene material. It is against the law for anybody to knowingly distribute sexually explicit materials to people under the age of 18, or obscene materials to people of any age. Issues of free speech are always important to a university. Therefore, the only criterion that will be used when considering the withdrawal of a bulletin board is that either the intended purpose for which it was established or its primary use (majority of the posts) makes it illegal for Computing Services to provide access to the bulletin board. Because the university does not monitor the contents of bulletin boards, there is always the chance that sexually explicit or obscene material may be posted and available. Any reported incidents of such materials will be handled on a case by case basis. Computing Services will implement this policy on Tuesday, November 8th by removing the following bulletin board trees: alt.binaries.pictures.erotica alt.binaries.pictures.erotica.* alt.binaries.pictures.tasteless alt.sex alt.sex.* rec.arts.erotica Bob Kuszewski Computing Services
From: Mike Godwin mnemonic@eff.org Subject: More on CMU To: farber@central.cis.upenn.edu (David Farber) Date: Thu, 3 Nov 1994 23:20:42 -0500 (EST) The First Amendment issue raised by the proposed ban is a subtle one. Obviously, since CMU is not a state institution, its actions don't directly implicate the First Amendment, which restricts only government action. But CMU's argument is, essentially, that they're afraid of legal liability if they carry these newsgroups. In response, it's appropriate to note a) that they can't be Constitutionally prosecuted for carrying protected speech, and b) there seem to be no cases on record of any university, public or private, facing legal liability based on carrying sex-discussion newsgroups. It should be noted that CMU seems to have taken no action to remove Henry Miller or D.H. Lawrence from the university's libraries. [BUT WILL THEY FROM THE ELECTRONIC LIBARIES SOMEDAY .. djf] --Mike
For more information, contact:
November 8, 1994 -- Carnegie Mellon University students have organized a Freedom in Cyberspace rally at noon on Wednesday, November 9 on the front steps of the Warner Hall administration building to show support for free access to Internet information. Speakers from the Electronic Frontier Foundation and ACLU will attend.
The rally is in response to the university's November 3 decision to censor Internet discussion groups with graphical and textual sex-related information, starting today. Yesterday the university responded to concerns from the campus community by deciding to retain some text groups pending legal review. As of this writing, the school's legal counsel recommended removing text groups and the university president has not made a decision.
"The rally will show the administration how much we care about the issue. We want to provide a forum for dialogue between the administration and students. We want to press for continued freedom in cyberspace," said Donna Riley, a graduate student in the Engineering and Public Policy department.
Student Body President Declan McCullagh said students are upset over the university's decision to censor discussion groups with sexual content, especially the text newsgroups. "There's no reason to remove the groups. They're protected by the university's statement ensuring academic freedom. Students use the text groups for legitimate educational discussions about topics like sexual abstinence, safe sex, and how to avoid sexually transmitted diseases. There's often no other place for students to get this information," he said.
"Carnegie Mellon always has been a leader in cyberspace. To remain a leader, we need to continue to respect academic freedom," said McCullagh.
Mike Godwin, staff counsel for the Washington, DC-based Electronic Frontier Foundation, will give the keynote address at the rally. Godwin writes for Wired and Internet World and writes about freedom of speech on the Internet.
Pittsburgh ACLU executive director Vic Walczk, who will speak at the rally, said that Carnegie Mellon should not ban any electronic discussion groups. "For well-established reasons of free speech, this type of censorship is not only wrong, but very dangerous. The Internet is analogous to a library, and libraries are protected from obscenity prosecutions under Pennsylvania law."
University President Robert Mehrabian and Marvin Sirbu, chairman of Carnegie Mellon's Information Networking Institute, have been invited to speak at the rally.
My name is Mike Godwin, and I'm a lawyer with the Electronic Frontier Foundation. My organization, EFF, stands for the proposition that freedom of speech must be protected, not only in the traditional media of speech, print, and broadcasting, but also in the vital new medium of computer communications.
We are not here merely because we are angry, but also because we are grieving over the imminent death of academic freedom at CMU. This fight is not over yet--they still want to review the alt.sex newsgroups and kill the ones they find most embarrassing.
You see, this new medium is ultimately going to become the most important medium for citizens of the United States, and of the world. It is a medium far different from the telephone, which is only a one-to-one medium, ill-suited for reaching large numbers of people. It is a medium far different from the newspaper or TV station, which are one-to- many media, ill-suited for feedback from the audience. For the first time in history, we have a many-to-many medium, in which you don't have to be rich to have access, and in which you don't have to win the approval of an editor or publisher to speak your mind. Usenet and the Internet, as part of this new medium, hold the promise of guaranteeing, for the first time in history, that the First Amendment's protection of freedom of the press means as much to each individual as it does to Time Warner, or to Gannett, or to the New York Times.
Of course, the Supreme Court has long held that, at least in theory, freedom of the press applies as much to "the lonely pamphleteer" as it does to the editors of a major urban daily newspaper. But the Net puts this theory into practice. And it is because the Net holds the promise of being the most democratizing communications medium in the history of the planet that it is vital that we prevent the fearful and the ignorant from attempting to control your access to it.
That's precisely what is happening here at Carnegie-Mellon. There is a strong sense here that, merely because you are students, and because some of you are minors, CMU must protect you from yourselves. They claim that if they don't cut off all access to these newsgroups, for everyone on campus, they'll not only risk perverting you by exposing you to sexually oriented materials, but they'll also be legally liable.
Their claims are wrong. First of all, it's not true that the *only* way to prevent minors from having access to this material is to deny *everyone* access to it. It is clear to me that the administrators haven't explored any alternatives other than the most expensive and infeasible.
Secondly, there is little if any risk of legal liability for the University for carrying these newsgroups, since Usenet is so large that no one can be presumed to have knowledge of all the content of Net traffic, and without proof of that knowledge, says the Supreme Court, there can be no liability. And no university anywhere in the country has ever, at any time, been held liable to any degree for carrying the alt.sex newsgroups.
Third, the risk that the 17-year-olds who enter this University as freshmen are unfamiliar with the materials that are carried in these newsgroups is exceedingly low. Remember, we're talking about high-school graduates here! I submit that if any entering freshmen haven't encountered material that deals with human sexuality before now, CMU has an affirmative duty to expose them to it.
Some members of the University staff have been reluctant to hear these arguments. When I spoke yesterday with attorney Jackie Kastelnik of the University's legal office, she asked me how I got interested in this case. I told her that I had been contacted by several concerned CMU students. At that point she told me that she was not interested in debating me or being informed about the legal issues involved.
But she did say this much to me: "So what if the risk is low! We don't want to be a test case!" To which my response is this: CMU, your lawyers have forgotten the meaning of the Constitution they have sworn to uphold.
Indeed, it's ironic that an institution that focuses so much on memory--of our sciences, our knowledge, our traditions, our values--has displayed so much forgetfulness about the meaning of a University, and has been so inconsistent in deciding what they want you to remember. Remember, before you expressed your concerns, they were ready to kill any newsgroup that dealt with sexual material.
They wanted you to remember the meaning of the Periodic Table, but they wanted you to forget that the chemistry between lovers is one of the most beautiful things we know.
They wanted you to remember the Fundamental Theorem of Calculus, but they hoped you forget that the fundamental fact of human sexuality shapes our entire existence.
They wanted you to remember safety in the lab, but they wanted you to forget alt.sex.safe.
They wanted you to remember the poetry of Dante and Shakespeare and Shelley, but they wanted you to forget that human sexuality, which often inspired these poets, is equally the inspiration of those who write stories and poems for rec.arts.erotica.
It's very clear that this university is all-too- willing to seek a relationship with the Department of Defense, but all-too-unwilling to defend your online discussion of sexual relationships. This is ironic, since this university is ostensibly training you to function as adults in this society, yet it has insisted on treating you like children.
I've talked about what CMU wants you to forget--now let's talk about what they have forgotten.
They've forgotten that the Constitution presumptively protects speech and expression about sexual matters, even when that speech and expression may be offensive.
They've forgotten that the Constitution does not allow governments to ban sexual expression for adults merely because there is some risk that children may see it.
They've forgotten that, when it comes to the Bill of Rights, what you don't use, you lose. The First Amendment is a terrible thing to waste.
As we can see from yesterday's election results, we're living in a conservative era. But the issue at stake here is not one that should divide liberals and conservatives, who have always shared a belief in the importance of individual liberty. In particular, conservatives should insist that CMU not alter its principles in the face of pressure from what may well be a paternalistic government.
But of course it's worth remembering that there has been no such pressure yet. The University has been misleading you as to the risks of carrying this material. And it may be misleading you as to its motives. I strongly suspect that the real reason the Administration tried to yank these newsgroups is that it is embarrassed by them. I spoke with a member of the Administration this morning, and he told me that the University doesn't want to have to defend carrying sexually explicit materials--it's ironic that such a highly educated group is afraid that it won't find the words necessary to defend discourse about a central aspect of the human condition.
If they lack courage, it's up to you to supply it. Tell the CMU Administration that you came here with the expectation that CMU would live up to the highest principles of academic freedom. Tell them that you expect them to fight as strongly for your freedom of speech and freedom of inquiry as the administrations of Harvard or MIT would.
As Arsenio says, "It's time." Time to remind CMU about the meaning of freedom. And time to tell them once and for all: "No more censorship!"
I urge you not to accept it when the authorities tell you that CMU, as a private institution, is not bound by the First Amendment, and therefore can do anything it likes. This is, of course, quite true, but the issue has never been what CMU is permitted to do--instead, it's been what CMU *should* do if they are to sustain a commitment to academic freedom.
This morning I spoke with a member of the Administration who told me at least twice during our talk that he is a teacher and admirer of James Joyce's ULYSSES--also one of my very favorite books--so he understands the issues raised one someone tries to ban works based on their purported obscenity. When I heard this from him, I felt sad-- how could he possibly have missed the lessons we learned in this society when books like ULYSSES, TROPIC OF CANCER, and LOLITA were litigated in the courts?
It's very easy, I think, to proclaim that you understand the issue of obscenity because you're willing to defend a book that was vindicated half a century ago.
What he doesn't seem to realize is that *this* fight--the one about online freedom of speech--is the one that matters now.
In a chilling assault on free expression and intellectual freedom, Carnegie-Mellon University on November 8 barred access to several internet news groups. News groups are components of a system called usenet and each news group is an open forum devoted to some area of common interest. There are thousands of these groups, and each has a hierarchical name indicating discussion topic, subtopic, etc. For example, the journalism newsgroup is called alt.journalism. One of the gay/lesbian groups is called soc.motss. (Members of the same sex) Anyone who has access to a newsgroup may not only read all postings, but respond to messages and contribute messages on new topics. A newsgroup, in short, is an international free market of ideas where everyone has equal access and no one may censor anyone else.
When people are permitted free speech, it's not surprising that a favorite topic is sex. First of all, the sex drive is universal and so sex is something that we're all interested in. Secondly, our society is so sexphobic that few public forums exist in which it is permissible to discuss sexuality. But whenever such a forum comes into being, those who are uncomfortable with sex do their damnedest to shut it down. Sexphobic censorship takes many forms, but the most active current censors are the theocratic right and feminists who subscribe to the doctrines of Andrea Dworkin and Catharine MacKinnon. These groups sometimes work independently and sometimes cooperatively. (Many religious people and many feminists, of course, vigorously defend freedom of expression.) Other censors act because they don't want "trouble" Carnegie Mellon, from the fundamentalists or from the Dworkinites, because both groups love controversy. I suspect that this is what is happening at Carnegie Mellon.
On November 3, William Arms (Vice President for Computing Services), issued a memo stating that the following newsgroups would be removed: alt.binaries.pictures.erotica.*, alt.binaries.pictures.tasteless, alt.sex.*, and rec.arts.erotica. (The * means both the group itself and all of its associated subgroups.)
The Carnegie Mellon administration's decision to ban these news groups from university computer systems was based on a study of sexually explicit materials available on the internet. However, according to the study's principal investigator, Martin Rimm, the administration had not even _read_ the study at the time the decision was made. What Mr. Rimm _had_ done was to inform a member of the administration that Rimm had found usenet images that had been declared obscene or were similar to images under indictment in very conservative parts of the country, such as Utah and Tennessee. According to Marvin Sirbu, the advisor on the project, these included images found obscene by a Memphis jury in July in the case of the Amateur Action bulletin board service, located in Milpitas, California.
The Amateur Action (AA) case has been discussed in previous editions of this newsletter. AA is an adults-only board that charges a membership fee. It's run by a married couple, Robert and Carleen Thomas. AA was busted by a federal undercover agent who joined in Tennessee under an assumed name and who did things such as attempt to entrap the Thomases by mailing them unsolicited child pornography. What the government hopes to accomplish in this case is to subject all of international cyberspace to the "community standards" of the most conservative and sexphobic parts of the US. The AA conviction was a shameful miscarriage of justice, but not a surprising one. Fortunately, it is under appeal and we can hope that justice will still prevail. I find it incredible that Carnegie Mellon would use this particular case to justify limiting what members of the Carnegie Mellon community may read.
Arms' memo stated that the new policy would go into effect on November 8. Opposition was swift and vocal, both on and off campus. The news was quickly spread through cyberspace, largely thanks to the efforts of free-speech activist Carl Kadie, a good friend of the National Writers Union. Letters of protest were sent to Carnegie Mellon President, Robert Mehrabian, by myself on behalf of the NWU, by the ACLU, by Feminists for Free Expression (FFE), and others. (The FFE letter was written by NWU activist Rachel Hickerson, who is now the FFE Executive Director.) On campus, the decision was criticized by student-body president Declan McCullagh, who wrote Mehrabian and was given an appointment to discuss the matter. This meeting took place on November 7. A strongly worded editorial appeared in the campus newspaper, _The Tartan_, that same day and concluded with the words: "The University's censorship is wrong and should not be tolerated. Every group and every person on this campus who believes in the principles of academic freedom should speak out against the University. Those who don't may regret it later when the University decides that something they are doing or saying is obscene."
At a special meeting of the student senate that evening, VP William Arms defended the censorship policy by falsely claiming that Pennsylvania state law prohibits providing people under 18 with access to erotic materials. Pennsylvania law limits access to "obscene" materials, and for minors obscenity is more broadly defined than for adults. But most sexually explicit material is not considered legally "harmful" to minors. The ACLU letter demolished Arms' argument that the censorship was made necessary by Pennsylvania law. The administration hadn't even bothered to seek a legal opinion before announcing the new policy. According to Erwin Steinberg, university vice provost for education, "...it didn't take a lawyer to read those pornography and obscenity laws to know we were really vulnerable." Sorry Mr. Steinberg, but you're dead wrong. Had Carnegie Mellon obtained sound legal advice it could've saved itself a lot of embarrassment.
Also, according to the minutes, Arms made the incredible assertion that "while the First Amendment to the Constitution guarantees free speech, the state laws of Pennsylvania take precedence." Dr. Arms is a native of Great Britain who emigrated here as an adult. Thus his error may be understandable. But if state law superseded the US Constitution, then the US Constitution would be utterly without force or meaning.
The student senate passed a resolution condemning the administration's actions and calling for a committee of students, faculty, and staff to review the matter. A Freedom in Cyberspace rally was held on November 9, and the speakers included Mike Godwin of the Electronic Frontier Foundation and Carnegie Mellon Alumnus Peter Berger, a lawyer for Telerama Internet. As of this writing, Carnegie Mellon is in the process of forming the University President's Online Policy Standing Committee, which will be chaired by ViceProvost Steinberg and which will include members of the Faculty Senate, the chair of the Staff Council, student-body president McCullagh, the head of the Graduates Students Organization and others. Carnegie Mellon is also permitting continued access to groups that are primarily textual and is banning erotic groups that contain graphics. This, of course, is still censorship. The First Amendment protects images as well as words. On November 10, the Carnegie Mellon Faculty Senate passed a resolution calling for a reinstatement of the prior no-censorship policy while the Standing Committee is doing its work.
We must follow the situation at Carnegie Mellon very closely and hope that this committee decides that only a strict no-censorship policy is acceptable. If they do not and the ban on newsgroups remains in force, then we must be prepared to support forcefully a legal challenge to their policy. Banning pictorial but not textual groups is _not_ an acceptable compromise. (If you were to object to my breaking both your legs, would you consider it an acceptable compromise if I agreed to breaking only one?) As Peter Berger said at the rally: "There are some simple truths in this world. You can't be just a little bit dead. You can't be just a little bit pregnant. And you can't just throw away a little bit of your academic integrity and expect the world to respect you for it."
Much is at stake here. Cyberspace offers the promise of the first universally accessible free market of ideas in world history. Such a free intellectual marketplace could enable democracy truly to flourish, both here in America and throughout the world. As Mike Godwin said in his rally speech, : "...this new medium is ultimately going to become the most important medium for citizens of the United States, and of the world. It is a medium far different from the telephone, which is only a one-to-one medium, ill-suited for reaching large numbers of people. It is a medium far different from the newspaper or TV station, which are one-tomany media, ill-suited for feedback from the audience. For the first time in history, we have a many-to-many medium, in which you don't have to be rich to have access, and in which you don't have to win the approval of an editor or publisher to speak your mind. Usenet and the Internet, as part of this new medium, hold the promise of guaranteeing, for the first time in history, that the First Amendment's protection of freedom of the press means as much to each individual as it does to Time Warner, or to Gannett, or to the _New York Times_."
On the other hand, those who currently possess an unfair share of wealth and who wield the accompanying unfair share of political power--such as Time-Warner, Gannett, and the _New York Times_--are threatened by any free market of ideas. Media owners wish to bring cyberspace under tight state-corporate control so that they may further profit. To do so, they must convince the public that free speech in cyberspace is dangerous. Thus the major media and lawenforcement officials are cooperating in a campaign to demonize cyberspace in order to justify its eventual corporate colonization. Now, I fear, our universities will join them in this anti-democratic campaign.
If Carnegie Mellon pursues its ill-considered plan of cyber-censorship, other colleges and universities will follow suit, using the Carnegie Mellon precedent as justification. This will help assure that the evolving National Information Infrastructure will be much less free than the internet. Rather than a free marketplace of ideas, it will resemble the commercial broadcast media, where the many are encouraged to buy products they don't need and are fed carefully censored "information" by the privileged few. Carnegie Mellon may win its place in history as the institution that midwifed this transition by striking the critical blow that killed free speech in cyberspace.
According to our constitution, "the National Writers Union is committed to freedom of expression in all media, including print, film, and electronic media of any sort." We take this commitment very seriously. In January of this year, our National Executive Board unanimously adopted a resolution that included the following sentence: "We urge our members to join us in opposing _all_ anti-pornography and other pro-censorship legislation at the Federal, state, and local levels." What is happening at Carnegie Mellon, as well as the prosecution of the Pink Pyramid Bookstore in Cincinnati [see related article] illustrates that laws against obscenity and pornography are very dangerous. These laws do no good whatsoever and they endow both the state and private institutions with powers incompatible with a free and democratic society.
--Bob Chatelle, Boston Local
(c) 1994 National Writers Union. Posted with permission from the November 1994 issue of the PIC Newsletter, the journal of the Political Issues Committee of the National Writers Union (UAW Local 1981 AFL/CIO). All opinions expressed are those of the authors and do not necessarily reflect the views of the National Writers Union. All rights reserved to the authors. Reproduction without permission is expressly prohibited, but requests to repost articles on electronic systems serving writers, artists, and other creators and cultural workers are encouraged. All repostings most retain this notice. Send permission requests to Newsletter editor Bob Chatelle, kip@world.std.com.
For information about the National Writers Union, which represents 4,000 freelance writers nationwide, contact us at 873 Broadway, Suite 203, New York NY 212/254-0279. Our email address is 72400.1712@compuserve.com.
(From interesting-people mailing list, 94/11/11)
MEMORANDUM
TO: FACULTY SENATE, CARNEGIE MELLON UNIVERSITY
STUDENT COUNCIL, CARNEGIE MELLON UNIVERSITY
FROM: VIC WALCZAK, EXECUTIVE DIRECTOR, GREATER PITTSBURGH CHAPTER
MARJORIE HEINS, DIRECTOR, ARTS CENSORSHIP PROJECT
RE: LEGAL ANALYSIS OF CMU'S POTENTIAL LIABILITY FOR MAINTAINING
SEXUALLY EXPLICIT BULLETIN BOARDS THAT CONTAIN OBSCENE
MATERIAL.
DATE: NOVEMBER 10, 1994
The Americal Civil Liberties Union ("ACLU") [1] has prepared
this legal memorandum at the request of numerous CMU faculty and
student.
Carnegie Mellon University administrators have attempted to
justify their decision to censor sexually explicit news groups on the
Internet by claiming that a failure to do so leaves them susceptible
to criminal prosecution for violationg Pennsylvania's obscenity
law. [2] The ACLU's review of relevant constitutional and statutory
law leads us to conclude that the University's fears are unfounded.
In sum, the assertion that CMU is legally constrained to censor
sexually explicit news groups that may contain obscene material is a
red herring.
The vast majority of expression is protected by the First
Amendment to the United States Constitution, and its corollary under
the Pennsylvania Constitution, Article I, 7. Art, entertainment,
literature and information (graphics and text in contemporary
discussion) enjoy constitutional protection. [3] An exception to
constitutionally protected speech is obscenity. [4] The requisite
analysis is known as the _Miller_ test. [5]
Most sexually explicit imagery is constitutionally protected.
The United States Supreme Court has recognized that sex is "a great
and mysterious motive force in human life, and has indisputably been a
subject of absorbing interest to mankind through the ages." [6]
Obscenity legally cannot be equated with sexually explicit imagery,
nudity or eroticism. Only sexually explicit material satisfying the
narrow three-part _Miller_ test can be censored or criminalized.
Given the narrow definition of obscenity, it is important to
recognize what material is not, and legally cannot be, deemed obscene.
Material that provokes "normal, healthy sexual desires" is not obscene
and, therefore, is constitutionally protected. [7] Prurience, within
the meaning of _miller_, excludes material that "taken as a whole, dos
no more than arouse `good, old fashioned, healthy' interest in sex."
[8] Material that may be indecent [9] or offensive [10] is also not
obscene. As the Court has noted, "[d]issemination of ideas -- no
matter how offensive to good taste -- on a ... university campus may
not be shut off in the name alone of `conventions of decency.'" [11]
Finally, any material with serious literary, artistic, scientific or
political value cannot be obscene.
Recognizing that only a very small proportion of all
expression is unprotected by the Constitution, the University
nevertheless seems to believe that it could be prosecuted for
violating the obscenity statute by permitting some access to a
bulletin board that might later be adjudged to have disseminated
obscene material. The University is wrong as a matter of both
constitutional and statutory law.
Pennsylvania's obscenity law expressly exempts "any library of
any school, college or university..." from its reach. [12] The
Legislature recognized that universities and libraries have special
protections as providers of access to knowledge and that academic
freedom and free expression should not be chilled by the specter of
criminal or civil prosecution under the obscenity law.
While some of the University's connections to the Internet may
not be housed in the library building, it is fully entitled to
protection offered by the exemption. By providing wide access to the
Internet, the University is, in effect, functioning as an electronic
librarian. As technology changes the ways in which we store and
access information, the digital library of the next century will bear
far greater resemblance to the Internet than to today's brick and
mortar constructs.
Moreover, successful prosecution of any obscenity case
requires the government to prove specific intent, i.e., "scienter,"
(knowledge of what a particular work contained). [13] Pennsylvania
obscenity law expressly limits liability to material which is
"reasonably susceptible of examination by the defendant." [14] Given
the millions of continual postings on the Internet, each and every one
of them is not "reasonably susceptible of examination," and CMU could
not be adjudged to have the necessary scienter as to any material that
might later be found obscene. Certainly, information on safe sex, no
matter how graphic, would fit within the protection.
What if, however, this analysis is wrong and it is determined
ultimately that the statutory exemption for libraries is inapplicable
to the Internet and that CMU is otherwise subject to prosecution for
not removing the sexually explicit groupings?
The University is nevertheless shielded from successful
prosecution by principles of constitutional due process. [15] When it
is unclear whether a criminal statute applies in a given situation,
due process requires that court's construe the law "in favor of life
and libery." [16] Application of a penal statute is unconstitutional
unless the law is "sufficiently explicit to inform those who are
subject to it, what conduct on their part will render them liable to
its penalties." [17] The Pennsylvania Legislature has codified,
through rules of statutory interpretation, this due process
requirement of fair notice. [18]
No academy of higher education in Pennsylvania has ever been
prosecuted for failing to censor material that might potentially be
adjudged obscene on the Internet. To the ACLU's knowledge, no such
prosecution has occurred anywhere in the country. When the
Pennsylvania Legislature adopted the current obscenity law in 1977, it
did not, and could not, have contemplated its application to the
Internet. The Internet did not exist. Absent clear legislative
intent and prior prosecutions, the due process principle of fair
notice affords the Univerisity a large and virtually impregnable
shield against any obscenity conviction. [19]
Even when the relevant law catches up with contemporary
problems posed by new technology, First Amendment jurisprudence
suggests that broad immunity will be given to Bboard conduits or
distributors, such as CMU. Bboards are akin to a public forum. They
may well be the first truly democratic free speech form whereby anyone
with a terminal can be heard. Plainly, a public forum proprietor's
duties to facilitate censorship-free speech cannot easily coexist with
potential liability for the content of that speech. Even without an
explicit grant of statutory immunity, proprietors of a public forum,
like other distributors of or conduits for speech, cannot be held
liable for program content. The University can no more be liable for
the content of every Internet communication than it could for the
content of every book in its libraries.
The Supreme Court has consistently affirmed this fundamental
principle. [20] The ACLU has been able to identify only one analogous
published decision involving computer bulletin boards. [21] In that
case, the federal district court held that a computerized data library
that acted as a conduit could not be held liable for including
defamatory material. [22] The court's application of First Amendment
principles is instructive:
CompuServe's CIS product is in essence an electronic,
for-profit library that carries a vast number of publications and
collects usage and membership fees from its subscribers in return for
access to the publications. * * * While CompuServe may decline to
carry a given publication altogether, in reality, once it does decide
to carry a publication, it will have little or no editorial control
over the publication's contents. This is especially so when
CompuServe carries the publication as part of a forum that is managed
by a company unrelated to CompuServe. * * * CompuServe has no more
editorial control over such a publication than does a public library,
book store, or newsstand, and it would be no more feasible for
CompuServe to examine every publication it carries for potentially
defamatory statements than it would be for any other distributor to do
so. "First Amendment guarantees have long been recognized as
protecting distributors of publications .... Obviously, the national
distributor of hundreds of periodicals has no duty to monitor each
issue of every periodical it distributes. Such a rule would be an
impermissible burden on the First Amendment." [23]
The court's characterization of CompuServe as a library not only
heightens First Amendment protection for CMU, but also lends further
credence to the applicability of Pennsylvania's statutory exemption to
obscenity for libraries.
The University's attempt to justify the censorship similarly
cannot be countenanced on the theory that minors must be protected.
First of all, minors need not be shielded from all sexually explicit
material. Rather, the courts have applied a modified _Miller_ test to
determine what is "obscene" as to minors: the material must appeal
predominantly to minors' "shameful or morbid" (not healthy) interest
in sex, and must lack any serious literary or other value. [24]
Although some material on the Internet might meet this standard, the
University would not be criminally liable if a seventeen-year-old
freshman happened to access it, for the reasons set forth above, i.e.,
lack of scienter, the statutory library exemption, and the rule that
the distributor in the University's position could not be expected to
monitor content.
Given that most of the people accessing CMU's database are
adults, the University should not "reduce the adult population ... to
reading only what is fit for children." [25] Just as Pennsylvania law
does not obliigate the University library and bookstore, or for that
matter literature classes, to purge all sexuallty explicit material
because there may be minors on campus or minors may access the
imagery, CMU should not do so with the Internet. [26]
In conclusion, CMU cannot credibly argue that it is liable to
criminal prosecution for maintaining sexually explicit material on
computers. The Administration's groundless legal argument should not
influence the discussion of CMU's proposed action. The discussion
should, properly, focus on whether CMU ought, as a matter of policy,
to censor its students' access to ideas and information.
Of all places, universities should neither tolerate nor engage
in censorship of any views, no matter how offensive or distasteful.
As the Supreme Court has stated, universities are "peculiarly the
marketplace of ideas," where the values of academic and artistic
freedom are paramount. [27] "The essentiality of freedom in the
community of American universities is almost
self-evident. ... Teachers and students must always remain free to
inquire, to study and to evaluate, to gain new maturity and
understanding, otherwise our civilization will stagnate and die." [28]
The ACLU hpoes that this legal analysis is helpful to your
discussion. If you have any questions, we would welcome the
opportunity to answer them.
ENDNOTES
1. The ACLU is a national, non-partisan, non-profit organization
dedicated exclusively to the preservation and promotion of civil
liberties. The organization nubers 300,000 members, approximately
10,000 of whom reside in Pennsylvania. Many ACLU members serve on
CMU's faculty. The ACLU has appeared in hundreds of cases before the
United States Supreme Court in both representational and amicus curiae
capacities. The ACLU is presently involved in countless civil
liberties cases throughout the United States.
2. 18 PA.C.S.A %5903.
3. _Erznoznick v. City of Jacksonville_, 422 U.S. 205 (1975);
_Jenkins v. Georgia_, 418 U.S. 153 (1974); _Kingsley Corp. v. Regents
of Univ. of N.Y._, 360 U.S. 684 (1959); _Joseph Burstyn,
Inc. v. Wilson_, 343 U.S. 495 (1952).
4. _Miller v. California_, 413 U.S. 15 (1973).
5. In order for a work to be judged "obscene," there must be proof of
all three of the following factors:
1. The average person, applying contemporary community
standards, would find that the work, taken as a whole, appeals to the
prurient interest;
2. Measured by contemporary community standards, the work
depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and
3. The work, taken as a whole, lacks serious literary,
artistic, political, or scientific value.
_Miller v. California_, 413 U.S. 15, 25 (1973). Pennsylvania's
obscenity statue tracks, as it must, the _Miller_ test. 18 Pa.C.S.A
%5903.
6. _Roth v. United States_, 354 U.S. 476, 487 (1957).
7. _Brockett v. Spokane_, 472 U.S. 491, 496-98 (1985).
8. _Ibid_.
9. _Sable Communications v. FCC_, 492 U.S. 115, 125 (1989).
"Indecency" is a term develped in the context of FCC regulation of
broadcast radio and television, and has no legal application to
computer communications. Indeed, in _Sable_, the Supreme Court held
that an attempt by Congress to ban "indecency" from telephone
communications violated the First Amendment.
10. "[T]he fact that society may find speech offensive is not a
sufficient reason for suppressing it. Indeed, if it is the speaker's
opinion that gives offense, that consequence is a reason for according
it constitutional protection. * * * If There is a bedrock principle
underlying the First Amendment, it is that the Government may not
prohibit the expression of an idea simply because society find the
idea itself offensive or disagreeable."
_Simon & Schuster v. New York Crime Victims Bd._, ___ U.S. at ___, 112
S. Ct. 501, 508 (1991) (citations omitted):
11. _Papish v. Board of Curators of the Univ. of Missouri_, 410
U.S. 667, 670 (1973).
12. The exemption, in its entirety, reads as follows:
Nothing in this section shall apply to any recognized historical
society or museum accorded charitable status by the Federal
Government, any county, city borough, township or town library, any
public library, any library of any school, college or university or
any archive or library under the supervision and control of the
Commonwealth or a political subdivision. 18 Pa.C.S.A. %5903 (j).
13. _Smith v. California_, 361 U.S. 147 (1959).
14. 18 Pa.C.S.A %5903 (b) (definition of "Knowing").
15. U.S. Const. Amend. XIV, %1, Pa. Const. Art. I, %9.
16. _Commonwealth v. Glover_, 156 A.2d 114, 116 (1959) (citation
omitted). _See also_, _Rose v. Locke_, 423 U.S. 48, 49 (1975) ("It is
settled that the fair warning requirement embodied in the Due Process
Clause prohibits the States from holding an individual criminally
responsible for conduct which he could not reasonably understand to be
proscribed.").
17. _Commonwealth v. Heinbaugh_, 354 A.2d 244, 246 (Pa. 1976),
_citing Connally v. General Construction Co._, 269 U.S. 385 (1926).
18. The rule of strict construction is codified at 18 Pa.C.S.A %105
(statutes "shall be construed according to the fair import of their
terms."). One of the purposes of this rule is to protect the accused
from dubious prosecutions. _See e.g._, _Commonwealth v. Hill_, 391
A.2d 1303 (1978). In addition, the rule of lenity establishes that
even "when the language is susceptible of differing constructions it
shall be interpreted to further the general purposes stated in this
title and the special purposes of the particular provision involved."
18 Pa.C.S.A %105. Among those "general purposes" is "to safeguard
conduct that is without fault from condemnation as criminal." 18
Pa.C.S.A. %104 (2).
19. The ACLU has used this due process principle successfully to
defend pregnant mothers, alleged to have pre-natally transmitted drugs
to their fetuses through the umbilical cord, from prosecutions under
long-standing controlled substance delivery and child endangerment
laws. The highest court in every state to consider the matter has
dismissed such prosecutions precisely because application of the
statutes was unclear and unprecedented and, therefore, the proposed
application violated due process. In February, 1994, the Pennsylvania
Superior Court dismissed such a prosecution, concluding that "it is
not reasonable nor appropriate for us to read the three statutes here
involved in a way which would, for the first time in this
jurisdiction, give recognition to theories of criminal liability not
heretofore judicially or statutorily acknowledged." _Commonwealth
v. Kemp_, No. 114 Pittsburgh 1993, slip op. at 6 (Pa. Super. February
22, 1994).
20. _Farmers Educational & Cooperative Union v. WDAY, Inc._, 360
U.S. 525, 533-35 (1959) (Broadcasters required to carry candidate
statements cannot be liable for the content of those statements);
_Smith v. California_, 361 U.S. 147, 152-54 (1959) (book retailers and
distributors cannot be held liable for content of books absent
scienter; otherwise, self-censorship would impede "distribution of all
books, both obscene and not obscene.") _See also_, _Auvil v. CBS 60
Minutes_, 800 F. Supp. 928, 931-32 (E.D. Wash. 1991) (no broadcaster
"conduit" liability in abscence of fault); and _Lewis v. Time_, 83
F.R.D 455, 463-464 (E.D. Cal. 1979) (distributor not liable for merely
disseminating article).
21. _Cubby, Inc. v. CompuServe, Inc._, 776 F. Supp. 135 (S.D.N.Y
1991).
22. _Ibid_.
23. _Ibid_. at 140.
24. _Erznoznick_, 422 U.S. at 212 n. 10; _Ginsburg v. New York_, 391
U.S. 971 (1968); _American Booksellers Association v. Webb_, 919 F.2d
1493, 1503 (11th Cir. 1990); _American booksellers Association
v. Virginia_, 822 F.2d 125, 127 n. 2 (4th Cir. 1989); 18
Pa.C.S.A. %5903 (c)-(e).
25. _Butler v. Michigan_, 352 U.S. 380, 383 (1956). In _Butler_, the
Court rejected the State's claim that it may "quarantin[e] the general
reading public against books not too rugged fror gown men and women in
order to shield juvenile innocence." The Court characterized the
State's argument as follows: "Surely, this is to burn the house to
roast the pig." _Id._
26. The ACLU does not address what, if any restrictions the
University might arrange for access by high school or younger age
students.
27. _Keyishian v. Board of Regents_, 385 U.S. 589, 603 (1967)
28. _Sweezy v. New Hampshire_, 354 U.S. 234, 250 (1957).
Last updated 94/11/21