Step Away From the Censorship Button
CDT and the ACLU today filed a lawsuit challenging a recent Utah statute, House Bill 260 [pdf] (signed into law on March 21), that “imposes severe content-based restrictions on the availability, display and dissemination of constitutionally-protected speech on the Internet.”
The complaint [pdf] carefully explains just what the internet is, why ISP blocking of sites deemed “harmful to minors” by the Utah AG (who will make his determinations without the benefit of any judicial review) will lead inevitably to the blocking of wholly innocent speech, why forced labeling and distribution liability and prior restraints and all the rest — all the ugly and familiar machinery of censorship — is violative of the First Amendment, and finally, why this entire ball of twine enacted by the Utah legislature violates the Commerce Clause.
It's good that the lawsuit has been filed, and it's clear that HB 260 is blatantly unconstitutional. If the AG's office does its homework, they'll recommend to themselves and to their legislative client that this new law be taken out of service immediately. But I have a sense of foreboding.
We live in an age of litmus tests and anger. Facts don't mean as much as they should these days, particularly when it comes to facts about the internet. Huge industries and incumbents of all kinds seem easily able to ignore fine arguments and good lawyering, and sometimes courts are willing to go along when the issues are particularly salacious.
Here, Utah law enforcement authorities and politicians looking for re-election can say something like, “What do you mean, we can't protect our children? What do you mean, we can't make a local law about a communications medium that our citizens access? Of course we've got community values. We have community values that regulate the width of our sidewalks and the quietness of our neighborhoods. Are you telling us that we can't say anything about those values when it comes to the internet? What's so magical about the internet?” Think France and the Netherlands voting to hang on to their national identities. This could be Utah's moment.
The complaint filed today is a work of art, no less than a painting or a symphony. It echoes the ringing language of ACLU v. Reno. The glory of the internet, its revolutionary impact on mankind, the ease of speech online — every theme is heard, and it's uplifting (as well as right).
CDT won a great battle in Pennsylvania, and they should win this suit as well. But they and their co-counsel may need a great deal of support of all kinds, for a long time. I'm afraid that this will be a long and bloody fight.
I hope I'm wrong.