Censorship and sensibility

Censorship and sensibility
By Margie Wylie
Staff Writer, CNET NEWS.COM

NEW YORK--It's bitter cold out, but in the bare Manhattan offices of the American Civil Liberties Union, Ann Beeson is still glowing with the success of her recent victory.

Just a few years out of law school, Beeson has helped fight, and is close to winning, the most significant civil liberties case in years: defeating the so-called Communications Decency Act. The young attorney has tracked the intersection of the Internet with human rights and civil liberties for several years, but it's her role in the CDA case that has set Beeson on the road to stardom. Though she's not the lead attorney in the ACLU's case against the federal statute, Beeson vetted the suits and has become the ACLU's premier spokeswoman for cyber civil liberties. Right now, she seems to be enjoying it.

Barely containing her glee and perhaps a touch of nerves, Beeson purses her lips and glances at a poster of scantily-clad porn star and free speech crusader Nina Hartley.

Holding an oversized fountain pen like a shepherd's staff, Hartley vamps amid stars, stripes, and the slogan "Free speech now."

The poster sums up Beeson's personal sentiments, not just an ACLU stand. In a Texan drawl delivered in New Yorker fast forward, Beeson tells how she met Hartley through another friend, Candida Royalle, the feminist porn filmmaker, fellow jazz singer and fellow board member of Feminists for Free Expression. People always find the poster a little disconcerting, she grins, but free speech isn't always comfortable. Beeson believes deeply that there should be no limits to free speech at any time, anywhere, especially on the Internet, and, so far, the courts have agreed.

In a landmark ruling, a Philadelphia circuit court struck down the CDA declaring that cyberspace was a media deserving of the highest first amendment protections. The Supreme Court will decide in the coming months if it agrees, but the outlook is good for the ACLU's case.

With the CDA all but dead, Beeson is turning her attention to state Internet censorship laws that popped up in the wake of the federal statute. According to Beeson, the ACLU hopes that by fighting for free speech online, it will win wider first amendment rights for TV and other media. She's also fighting university's attempts to control student and faculty use of the Internet, and just beginning to think about the implications of spam and copyright rules on free speech.

Other than that, her life has slowed down enough to plan her wedding this year, she said, and maybe go hiking. But she's not counting on it.

NEWS.COM talked with Beeson in the ACLU's headquarters just off Times Square about the CDA, state laws, and the Internet's pivotal role in civil liberties.

Three years ago, politicians didn't know what the Internet was. Today, laws are popping up on both the federal and local level like mushrooms after a rain. Why the sudden interest?
Beeson: When I first became interested in these issues, NOBODY knew what I was even talking about. Most lawyers didn't even know about the Internet. Most legislators didn't know about the Internet; they had certainly never been on it. I think that's probably still largely true today, unfortunately.

But this is not a new phenomenon. Early on, the radio was seen as this incredibly democratizing medium. Everybody early on could have their own radio station. There's nothing implicit about radio technology that makes it subject to all of this government regulation, but of course, the government immediately stepped in and said, "No, we've got to take control over this and issue licenses." And the rest is history, so to speak. Hopefully, because of the nature of the Internet being somewhat different than radio, we won't see that happen with the Internet. But it's unfortunately a historical cycle.

The ACLU has been around for over 75 years now, and if you look back through the files, it's happened whenever a new medium of communication has been introduced. Every single time you get this wave of censors who try to regulate it. It happened with radio, it happened with the telephone, and it happened with television. You still have it, to some extent, with all of those.

Every single time the censors among us come forward and say, "This is going to destroy the morals of our youth." And the civil libertarians sort of always have to come back and say, "No, no. Information is a good thing. Speech is a good thing."

The whole CDA debate has generated (and I think this is a fabulous thing because I work for the ACLU) a whole new generation of civil libertarians, people that didn't really think of themselves as being civil liberties advocates, but who realized that these kind of regulations on their baby of communication, the Internet, were going to keep them from saying what they wanted to say.

NEXT: Hush-hushing the Internet

Hush-hushing the Internet

Now that the CDA is all but dead, what's next?
When I came to the ACLU, I was to begin a project monitoring state regulations to censor online content. That was my first job. My other job, of course, was to work as a lobbyist against passage of the federal CDA, which I did for a year and was very intricately aware of all the details of the legislation by the time it passed. And that's why I was then brought onto the litigation team and ended up moving into litigation full-time. But as I say, the other job was to monitor state legislation and to assist our affiliates in all 50 states in fighting these bills as they were introduced in legislatures. Unfortunately, they were just being passed right and left. It's very common that states will copy what Congress does...and they did that.

We started to see a rash of these state bills introduced, and we were successful in fighting some of them as lobbyists. Then, of course, several of them passed. And the worst of those passed at the end of last year right as we were in the middle of our CDA battle. We have now filed two challenges. We filed the first challenge to a state Internet regulation in Georgia in September against a law that makes it a crime to communicate using a pseudonym on the Internet. It also has a provision that would make it illegal to link to any page on the Web if the link contains a trade name or logo. So most people out there on the Internet are committing a crime in Georgia as we speak. We filed that lawsuit, asking for an injunction against [it], and we actually have that hearing on January 30 of this month. So we're actually very busy the next couple of weeks, incredibly busy. We have that going on in Georgia, and we feel very confident about the outcome of that case.

We just this week filed our second state-level lawsuit. That was against a New York law which is very similar to the federal CDA: It makes it a crime to communicate indecency to minors over the Internet. We hope that one will be resolved fairly quickly, as the court here in New York sees that the statute is very similar to the CDA and it's also unconstitutional.

We will also be filing a challenge in the next month to a Virginia statute that forbids state employees from using state-owned computers to access sexually-oriented material. And that's one that at first glance [where] people say, "Well, it's a state-owned computer. Why is that such a big deal?" But what we sort of forget is that all professors at state universities are state employees, and many of them do very legitimate research and publish their academic articles and teach classes using the Internet now. In fact, there's already been one instance of censorship where a professor at George Mason, who writes about pornography in literature and is in the English department, had several articles up on his Web site, and the university had to ask him to take them off the site because they were afraid of being liable under this law. We're going to be challenging that law on behalf of several university professors at different institutions in Virginia.

With the CDA case and our New York case, those statutes at least use terms that have been recognized before, like "indecency." This Virginia statute just uses the hugely broad category of "sexually-oriented material." It's really fairly amazing the extent to which it would exclude all sorts of communication and also access to much information.

If I was in California, why should I care about laws in New York and Georgia?
Because given the nature of the Internet, you have committed a crime in those states simply by communicating on the Internet. In other words, as a speaker in California, you have no way of knowing whether somebody here in New York can ever access or download your speech. If you posted something to a newsgroup, you don't know if somebody in New York can read your message. If you have a Web site, you don't know if somebody in New York is downloading information from your Web site, and therefore you have to comply with this New York law or face the possibility of being prosecuted in New York.

There's a case that we're involved with in California...It's actually in Texas and California. There was a young student in California who posted a message criticizing a state senator in California. The senator construed it as a threat, and state officials in California arrived in Texas to extradite this kid to face felony charges for threatening a public official in California. The ACLU of Northern California and myself are cocounsel for the defense in that case. We have been successful so far in having the felony charges reduced to misdemeanor, but still we're seeing this happen already is what I'm saying, so it's a very real risk.

What sort of threats do copyright and trademark laws pose to freedom of speech on the Net?
Well, we actually have not come out with a very firm ACLU position on those issues. We're very interested in them. The reason that it's tough is you've got competing First Amendment interests [and] you've got the First Amendment rights of artists and other producers of information to get credit for their work. And then you've got the very important competing right to access information without having to pay for it if, for example, it's use under traditional copyright terms. So in general, we have been watching with interest that whole debate. Clearly, some of the regulations that have been suggested by Congress have been completely outrageous and weigh too much on the side of publishers and producers of content. And we have opposed those generally but have not been as intimately involved in that debate as we have in some of these other First Amendment debates.

I can count only one hot potato that the ACLU hasn't touched yet: spam.
That's another one where we actually aren't sure what our policy is yet, and we're still thinking it through. It's a very complex issue. Our gut reaction would be our reaction to any rule against unsolicited mail. And we have always said it's ridiculous to have a law against unsolicited mail...In fact, there are many court cases which say you can't prohibit unsolicited mail, that it's just too easy to throw it away. It's not a burden on the recipient at all. And so we would start from that point, that that is our basic policy. It could be that there is something about the Internet that changes the story a little bit. For example, if it's true that I can't get the mail I want because of the amount of spam that comes over the system, [then] maybe it's a more complicated issue. But I think it's a question that shouldn't be quickly answered by civil liberties advocates, in any case. We've been following the cases very closely that are going forward. It seems to me as if technology should be able to be the solution again, instead of government regulation.

NEXT: All about Ann

All about Ann

How does it feel to become a sort of online icon?
I was at the right place at the right time, and every day I count my lucky stars that I have such an exciting, fabulous job even though I am so underpaid!

There is something about this medium which seems to launch young people into high places very quickly. There was an article in the L.A. Times Magazine about a year ago that profiled six "stars of the Internet." I was the oldest one of the group. There were all these people who had made $2 million by the time they were 26 on the Internet.

When we run articles about the CDA, we're swamped with email. Are you surprised at how concerned people are about this?
I am. One thing that's fabulous is the extent to which everyday folks can contact you. Some people would find that really annoying and, to be honest, there are even people here that get too many emails every day and are sort of annoyed by it. But every once in a while--and this is my favorite thing of all--I'll get an email from a high school student that says, "Thank you so much for what you're doing. I'm a 10th grader at such-and-such high school." And they'll explain how important it is to them that we're defending their rights.That's even more rewarding than having some sort of big-name plaintiff be thankful. It's great to hear from just your average person out there on the Internet.

What else do you do when you're not here, if you're ever not here?
I am a proud board member of an organization called Feminists for Free Expression, which is based here in New York and has members nationally. We were formed to counter this movement among some feminists and academics to be in favor of certain censorship laws, particularly against sexual images in pornography. We think that censoring is never the right approach. Historically, even censorship laws that were enacted for the purpose of protecting women and children have almost always used against the marginalized people in society, namely women and children.

Canada actually passed a victim's compensation law that says if you can show that you've been harmed by pornography you can sue for civil damages. This is one of the brainchildren of people like [feminist antiporn activist] Catherine MacKinnon. Even though she was out to protect women and children, which of course is a lofty goal, the first target under the law was a lesbian bookstore.

What else?
Hiking. In fact, there's a famous story around that. When the ruling came out of Philadelphia in the CDA case, I had planned a vacation to Cumberland Island off the coast of Georgia. The whole island is a nature preserve. There's no phone or electricity anywhere on the island. I went there for a week to backpack, knowing in advance that it was possible that the CDA decision would come down that week. Sure enough, it did come down that week. So even though I literally devoted a year and a half of my life to fighting this bill and filing the lawsuit, I was gone when the decision came down. The other ACLU lawyers were all ready to go hire an airplane with a banner to fly across the island: "We won!"

What can we look forward to celebrating and protesting in the coming year?
I hope that we will be able to celebrate the Supreme Court's affirmance of the fabulous opinion that we got out of Philadelphia which enjoined enforcement of the CDA. I hope that we'll be able to see successes in these other lawsuits in our Georgia, New York, and Virginia cases. And hopefully again, if we get a favorable outcome from the Supreme Court, hopefully we'll see state legislatures begin to understand that they can't start passing these laws to regulate the Internet without thinking about the implications on the medium and the implications on people who are communicating from other states.

We'll continue to see state regulation and probably not just of sexually-oriented content, but of anonymous communication or of harassing or annoying communication. There's been a lot of talk about hate-speech regulations that we've been opposing because again, we think that censorship is just not the right answer to that problem.

A very important issue that we've also been involved in is university regulation of student use of the Internet. Universities around the country are now passing what are called "acceptable-use policies" for computer use, and many of them have real civil-rights flaws in them.

They somehow think that they need to have some new set of rules that they didn't need for analogous situations. Nobody would think to make a rule that in the student union you couldn't say something offensive. The whole nature of a college campus is that it's full of lively debate, and yet we're seeing rules like that applied to university use of the Internet. A lot of schools are also saying that students don't have a privacy right in their email, and we just think that's wrong. The ACLU [is ] trying to develop a model policy that will be distributed to encourage universities to change any provisions of their policies that are violations of student rights.