National Law Center for Children and Families Office Addresses: National Office 3075 University Drive, Suite 320 Fairfax, Virginia 22030 (703) 691-4626 -- (703) 691-4669 FAX West Coast Office 1221 E. Dyer Road, Suite 220 Santa Ana, California 92705 (714) 435-9090 -- (714) 435-0523 FAX [Stamped: Received November 9 - 1994] [This is the date of the CMU anti-censorship rally.] November 8, 1994 Dr. Robert Mehrabian President, Carnegie Mellon University Warner Hall 500 Forbes Avenue Pittsburgh, Pennsylvania 15213 Via Facsimile (412) 268-2330 Re: Carnegie Mellon University's Decision Not to Facilitate Access to Obscene and Child Pornography Dear Dr. Mehrabian: Through recent press reports, and through the Internet, it has come to our attention that Carnegie Mellon University will no longer provide access to hard-core pornographic materials through Carnegie Mellon University's computer facilities. We applaud this decision. The National Law Center for Children and Families is a legal resource center focused on reducing the availability of illegal pornography. As experts on pornography and the First Amendment, we would offer the following analysis as to the validity of Carnegie Mellon's recent action. Your decision to discontinue facilitating access to hard-core and child pornography is both appropriate and fully consistent with the First Amendment. Because Carnegie Mellon University is privately funded, you are entirely free to cease providing access to obscene materials or child pornography through Carnegie Mellon's computer facilities. Any assertion to the contrary is plainly false. In fact the United States Supreme Court has never invalidated a private institutionUs decision to refrain from transmitting pornographic material. In important respects, your decision mirrors the decision of some privately-owned phone companies to carrying so-called "dial-a-pornography." In several well-regarded decisions, federal courts of appeal have validated refusals to carry "dial-a-porn" services because no governmental action was involved. See Dial Information Services Corp. v. Thornburgh, 938 F.2d 1535, 1543 (2d Cir. 1991), cert denied, 112 S. Ct. 966 (1992); Information ProvidersU Coalition v. FCC, 928 F.2d 866, 877 (9th Cir. 1991); Carlin Communication, Inc. v. Southern Bell Tel. & Tel. Co., 802 F.2d 1352, 1357-61 (11th Cir. 1986). As with your decision to discontinue access to the "alt.sex" hierarchies, in each of these cases, voluntary decisions to discontinue access to pornography were upheld. In view of relevant case law, no one can credibly contend that your decision is constitutionally invalid. [Carnegie Mellon University November 8, 1994 Page 2] Another factor which weighs heavily in your favor is the non-coercive nature of the decision to discontinue access to the "alt.sex" hierarchies. No student, faculty member, or other person associated with Carnegie Mellon has been ordered not to view or possess or purchase pornography of any sort. Carnegie Mellon Internet users who desire to view or possess the extreme sort of pornography available in the "alt.sex" hierarchies, and thereby individually risk criminal prosecution, need only access the Internet through a non-Carnegie Mellon computer. In sum, your decision is imminently reasonable and does not, as the American Civil Liberties Union correctly conceded in their letter to you, limit the ability of Carnegie Mellon's pornography consumers to obtain pornography from a myriad of other sources. Viewed in this light, the contention of the American Civil Liberties Union that Carnegie Mellon has acted improperly can only be grounded on the view that Carnegie Mellon somehow has an obligation to provide access to potentially illegal hard-core and child pornography. Nothing could be further from the truth. The truth of the matter is that obscenity and child pornography are illegal under Pennsylvania and federal law. Moreover, to continue to facilitate access to such illegal material would certainly be a breach of Carnegie Mellon University's fiduciary obligation to the parents of Carnegie Mellon students to provide an environment conducive to academic growth. Regardless of one's views on pornography, no one could reasonably dispute a parent's conclusion that viewing sexual torture and child rape in the "alt.sex" hierarchies does not contribute to academic development. In addition, if Carnegie Mellon had knowingly permitted access to pornography through the Internet to children, Carnegie Mellon would have been in violation of the criminal code of the Commonwealth of Pennsylvania (Pa. C.S.A.$ 5903(c)). In our view, once you and other Carnegie Mellon officials became aware of the horrific nature of images available on the "alt.sex" hierarchies, Carnegie Mellon had a legal obligation to refuse to provide access to those hierarchies. Despite misleading assertion to the contrary, Pennsylvania's so-called library exemption is simply not applicable to the Internet. LIbraries are not commercial enterprises. The "alt.sex" hierarchies, by contrast, serve as a low-cost mechanism for the operators of pornographic bulletin board systems to compete for new customers. If a chaotic, commercial enterprise like the "alt.sex" hierarchies constitutes a library, then every newsstand or bookstore is also a library. If that were so, the exception would swallow the rule and eliminate all obscenity prosecutions in Pennsylvania. [Carnegie Mellon University November 8 1994 Page 3] In conclusion, it is our view that Carnegie Mellon University has acted appropriately and eliminated its potential criminal liability. Rather than Banning the use or ownership of pornography by Carnegie Mellon students or faculty members, you have narrowly focused your efforts and simply decided to cease facilitating student access to hard-core and child pornography via university-owned computer systems. If you have any questions, or would like assistance in this matter please contact us at your convenience. Sincerely, [signed] Cathleen A. Cleaver Director [signed] John McMickle Litigation Coordinator