Cyber-liberties attorney Ann Beeson fights for free speech on the Net

Wednesday, May 26, 1999

Ann Beeson...
Ann Beeson

Cyber-liberties attorney Ann Beeson sees no end in sight to government attempts to regulate speech on the Internet, a trend she battles daily as a national staff attorney for the American Civil Liberties Union.

Thus far, her struggle to keep legislation from strangling the growth of the new medium has been successful.

A 1993 graduate of Emory Law School, Beeson vaulted into prominence thanks to her role in challenging Congress' first law regulating speech on the Internet — the Communications Decency Act of 1996 — and her visibility as lead counsel in challenges to several state online-decency laws.

Beeson says her ascension to the upper ranks of cyber-liberties defenders was “serendipitous.”

She first became interested in the Internet and free speech while she was in law school. After graduation and a one-year clerkship with U.S. District Judge Barefoot Sanders in Texas, Beeson accepted a one-year fellowship to work on the Human Rights Watch free-expression project.

“I was very interested early on in how free-speech issues would play out on the Internet,” she said. “I became convinced that some of the major free-speech cases of our time would take place on this new medium.”

Beeson proved prescient as Congress began serious debate in 1995 on the merits of a law to restrict speech on the Internet. One year later, Congress passed the CDA.

Before she finished her fellowship at Human Rights Watch, Beeson began working with the ACLU, which also began to track cyberspace issues. When a one-year ACLU fellowship on cyberspace legal issues became available, Beeson was the logical choice.

She began work with the ACLU in February 1995 as a lobbyist, trying to prevent passage of the CDA.

Her first case: challenging the Communications Decency Act

“When it looked inevitable that Congress was going to pass the CDA, I began work with the legal department on the case against the CDA,” Beeson said. “It is kind of hard to believe, I guess, but the case against the CDA was my very first case.” She is quick to credit Chris Hansen, senior national staff counsel for the ACLU, for his mentoring during the case.

The ACLU, along with 19 other nonprofit groups, challenged provisions of the law, which criminalized “indecent” and “patently offensive” online communications. A panel of three federal judges in Philadelphia struck down those provisions. On appeal, the U.S. Supreme Court issued a landmark opinion in Reno v. ACLU in June 1997. The high court affirmed the lower court ruling that major portions of the CDA violated First Amendment free-speech rights.

Beeson describes the high court's opinion in Reno v. ACLU as “one of the most important free-speech cases in the last couple of decades.”

After the CDA was gutted in the federal courts, Congress passed a second version of the legislation, called the Child Online Protection Act or COPA. COPA is a somewhat narrower law that criminalizes online “commercial” speech that is “harmful to minors.”

Even though COPA employs a different legal standard and differs in other ways from the CDA, Beeson says it still suffers the same fatal flaw. “This is a criminal law that would put adults in jail for speech or expression that is protected by the First Amendment for adults,” she said.

Beeson now serves as lead attorney in the legal challenge to COPA. She obtained a favorable ruling at the federal trial court level, and the case is now on appeal to the 3rd U.S. Circuit Court of Appeals.

Filtering legislation

Beeson also believes that current proposed federal legislation mandating that public libraries and public schools install blocking computer software to protect children from online pornography violates the First Amendment.

“We at the ACLU still believe that the use of filtering software by parents is a less restrictive alternative than government censorship,” she said. “However, government- mandated filtering is a content-based regulation of speech.”

She says government-mandated filtering is simply a “censor with a hood.”

“While the alleged purpose of filtering software is to protect kids from hard-core sex materials, filters have major flaws: They block much more material they should and, also,
librarians don't know what material is being blocked because the companies that develop the software often consider the list of blocked materials as some sort of trade secret,” she said.

Other areas of concern in cyberspace

Beeson objects to other legal developments in the online world including punishment of students for speech on personal Web sites, lawsuits filed by corporations to punish anonymous online critics and regulation of unsolicited commercial e-mail, or spam.

“In many cases, especially since the Littleton tragedy, school officials are punishing students for their online speech,” she said.

If a student publishes material on his home computer, that is the parents' jurisdiction, not the school's,” she said. “It is an intrusion on the parent-child relationship.”

Another “disturbing trend” is that of corporations and businesses suing people who post online messages critical of the companies. “These companies often file lawsuits against a John Doe or John Does and then go to the Internet service provider with a subpoena demanding the disclosure of the identity of those who posted the messages,” she said.

Beeson calls these suits “troubling” because people have the “right to anonymous communication.”

“These lawsuits are really filed to silence critics; they are SLAPP suits [Strategic Lawsuits Against Public Participation],” she said.

She also expresses concern over various proposals and laws regulating unsolicited commercial e-mail, or spam. “Some of these state laws are unconstitutional because they infringe on the right to communicate anonymously and because they involve mandatory labeling,” she said.

A feminist for free speech

Beeson warns against efforts by some feminists to pass laws to protect women. As a board member of Feminists for Free Expression, she works to protect free-speech values while protecting women's rights.

“Some feminists call for the passage of censorship laws to protect women,” she said. For example, she questions the wisdom of laws that would censor pornography and laws that would provide a civil cause of action to anyone who had been harmed by pornography.

“At the Feminists for Free Expression, we believe that censorship is never the best way to protect the rights of women,” she said. “Censorship laws are always used against any marginal group, which still unfortunately includes women. Even censorship laws that aim to protect women have historically in fact been used to harm women.”

In her view, the importance of the First Amendment cannot be underestimated.

“Too often Americans think about free speech too much in the abstract,” Beeson said, her perspective broadened through her international work with Human Rights Watch.

“Unfortunately, the right to free speech and [other ] First Amendment freedoms don't attach themselves to something meaningful for a lot of Americans. But people in many other countries recognize how precious those rights are,” she said.

“Free speech forms the basis for all other rights. You cannot have a functioning democracy without the right to freedom of speech,” she said. “Free-speech rights are always the first to go.”