Ensuring Free Speech in Cyberspace: An Analysis

News Release: 
Friday, November 20, 2009

The ACLU-WA believes that policies related to the National Information Infrastructure (NII) should foster free speech, encourage the free marketplace of ideas, enrich user choice, and nurture electronic public forums. To ensure maintenance of these values, there should be at least one broadly available network that carries information without regard to content, provider, or medium.

First Amendment Protections
Existing and emerging communications technologies are capable of supporting a much wider range of communications[1] than traditionally has been available. Users have an increasing choice of what content they receive and when they wish to receive it[2] The ACLU-W believes that these communications enjoy the full protection of the first amendment.[3]

Every person should have access to a network that is free from censorship. Communications network operators should not be required to monitor content or in any way restrict access based on content of communications. There should be no time restrictions on the hours during which certain content may be made available.

Communications networks and access providers must not be civilly or criminally liable for obscenity, libel or other claims based on the content of material which they do not originate. Only content providers may be liable for illegal or wrongful content.[4]

The ACLU-WA endorses the principle that individuals, free from government control, have the right to choose what program content will be provided or received by themselves and their families. Existing and emerging technologies[5], provide the means for parents or other users to control information decisions. Such means should be encouraged instead of regulations restricting speech and free expression.

Desired Characteristics of the National Information Infrastructure (NII)

The ACLU-WA believes that fairness, equity and accessibility must be the hallmarks of the NII. Information access includes both the ability to receive content from providers and the ability of citizens to provide information. The NII must therefore include capacity for "many to many" communications in addition to the "one to many" models of traditional broadcast and print media.

No Discrimination

Networks should not discriminate among users and content providers. There should be uniform and reasonable rates charged for equivalent usage of network services regardless of program content or source.

Non-Exclusive Access

Contracts between carriers, networks and content providers should be non-exclusive. Every content provider should have equal opportunity and freedom to obtain access without regard to information content or provider affiliation, at reasonable and non-discriminatory rates and terms.

Adequate Capacity

Telecommunications policies should foster fair and equitable allocation of resources to assure space for independent content providers. Bandwidth must be available in segments small enough to make access by small and medium sized providers feasible, and in large enough segments to provide capacity for high-bandwidth demands. To increase access to the network, the resale of bandwidth should be permitted.

Auxiliary Support Services


Networks may provide support services[6] for content providers so long as such services are made available to all content providers at non-discriminatory rates and terms. Networks which provide such services for themselves or their affiliates must make them available on equal terms to independent content providers.


To enhance network access, interoperability of interface hardware and software is essential. Content providers and consumers must be enabled to interconnect additional or alternative equipment and software to a network connection in order to enhance use of the network provided that such equipment does not lessen the quality of service to others. Government should lead industry in the process of developing interoperability standards.

Achieving Fairness, Equity and Access

The ACLU-WA believes that all citizens should have equal opportunity to access the national information infrastructure. When avenues for information and speech are limited by past or current government regulation or monopolistic conditions, it is the responsibility of the government to remedy the situation. The ACLU-W supports common carriage regulation principles under those circumstances.[7]

If social, economic, demographic or geographic factors limit full citizen access to information networks, we will support government action to assure access to basic services.[8] It may be necessary to create public networks to serve as open platforms based upon standards that promote reciprocal interconnection, well defined interconnection points and interoperability with other networks, both public and private.

The ACLU-WA supports such additional safeguards as may be reasonably necessary to ensure that access to, production for and use of networks shall be fair, non-discriminatory, and shall maximize access to diverse information sources.


[1] Range of communications includes but is not limited to geographic, physical, technical or content. Back

[2] Communication networks allow a high degree of individual interactivity through the asynchronous delivery of content (content on demand) in addition to synchronous content delivery (traditional broadcast scheduling). Back

[3] See ACLU policies on free speech and censorship. Back

[4] The ACLU-W continues to believe that there should also be no criminal or civil penalties for production or distribution of "obscene" or "indecent" material, including material distributed on electronic networks to either adults or minors. See national ACLU policy #4 (Censorship of Obscenity, Pornography, and Indecency). Further, the ACLU continues to oppose criminal libel laws, as well as civil penalties for matters of public concern, including libelous material distributed via electronic network. See national ACLU policy #6 (Libel and Invasions of Privacy through Speech). Back

[5] Examples include on/off switches, channel controls, "lock boxes", content filters, and "surf watch" software. Back

[6] Such services may include billing services to consumers, directory listings, content storage and availability on demand, interactive services, and the distribution of marketing materials in billing notices. Back

[7] A common carrier, by reason of its public character and rights it derives from the State, must subject itself to all reasonable necessities of public service. All charges made for any service rendered or to be rendered by any common carrier shall be just, fair, reasonable and sufficient. No common carrier shall subject any particular person or corporation or governmental agency to any undue or unreasonable prejudice or disadvantage in any respect whatsoever. Common carriers may not use revenues from their regulated business to subsidize unregulated business services such as content development. Back

[8] Government could require carriers to share the cost of full access. Alternatively, or in addition, government could provide incentives such as rights of way, government grants and contracts, or favorable tax provisions. Basic services may consist of government information, emergency resources, access to public or community networks or other services essential to functioning as a full member of society. Back

Adopted December 2, 1995, ACLU-WA Board of Directors