Masthead CMC Magazine August 1, 1995 / Page 8


Next Wave of Censorship from the States?

by Ann Beeson (

Any online user who hasn't heard of The Communications Decency Act of 1995 (CDA) -- that stellar example of congressional wisdom that would censor the Internet out of existence -- has had his or her head stuck in the virtual ground. But while online activists have been busy fighting the pending CDA, state legislatures have been carelessly crafting online censorship bills at home. And if you think Congress is full of luddites, just wait until you hear what your state legislators have come up with.

Seven states have passed legislation this year to regulate online content -- Connecticut, Georgia, Illinois, Maryland, Montana, Oklahoma, and Virginia. Another seven states -- Alabama, California, Florida, New York, Oregon, Pennsylvania, and Washington -- considered such bills, with several still pending.

These bills seek to criminalize a wide range of online speech and content, including:

At one point, the Georgia legislature even tried to outlaw online pictures of marijuana. The provision would have made it illegal to post a picture of a joint on the Net!

The state bills, like the federal Communications Decency Act, raise serious free speech and privacy concerns. But none of the bills indicate an understanding of the unique nature of the online medium. Some bills purposefully, and other bills inadvertently, fail to clarify that only the initiators of the illegal images may be held liable -- so service providers can be held liable for the pedophiles and pornographers that use their networks.

The laws would, at best, create an incentive for service providers to snoop in private email in order to avoid criminal liability. At worst, the laws would force providers to shut down their networks altogether.

The bills that attempt to keep adult materials from minors unwittingly and unconstitutionally reduce all online content to that suitable only for children. As Net users know, minors could potentially gain access to any of the public areas on the Net -- including the chat groups that have brought together so many people of common interests around the world. In addition, the definition of material that is "harmful to minors" under some of these bills could be interpreted to include online posting of sex education materials or abuse recovery discussion groups.

The draconian effect of these state bills doesn't stop at state borders. A message you post to the Internet today in New York City could travel the fifty states and the globe by tomorrow. You'd better be careful that the message isn't "obscene" according an Oklahoman, "annoying" to a Connecticutter, "solicitous" of a minor in Illinois, or related to "terrorism" as defined by a Georgian.

Some of the pending federal Internet legislation, if passed into law, would affect these state laws. Even the Communications Decency Act contains preemption language that would provide a limited defense for commercial providers from harsher state laws. But the defense doesn't apply to non-commercial providers, content providers, or online users -- not to mention the fact that the CDA itself creates an unconstitutional restriction on online speech.

Representatives Cox and Wyden have proposed the Internet Freedom and Family Empowerment Act as an alternative to the CDA in the House. Their bill encourages the development of technologies that allow parents to control online access, and could have a limited preemptive effect on state laws.

The wave of online censorship at the state level is far from over. The American Civil Liberties Union is considering constitutional challenges to the seven online censorship laws that passed this year. But given the continuing media hype over "cyber-porn," we are certain to see more censorship bills from the states next year.

Cyberspace is probably the richest source of creative, diverse, empowering, and democratizing communication ever to connect people statewide, nationwide, and globally. We must educate our state legislators about this remarkable medium before they squelch it in a frenzy of misguided censorship. [CMC TOC]

Ann Beeson is a policy analyst and William Brennan Fellow with the American Civil Liberties Union.

Copyright © 1995 by Ann Beeson. All Rights Reserved.

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