Greetings from Portland, Oregon, where Kacie, Rachel, and I have been working on the campaign to defeat Measure 43! Measure 43 would change Oregon law to require doctors to send a government-mandated certified notification letter to a parent at least 48 hours before a young woman aged 15-17 is able to obtain an abortion.

It makes NO exception for survivors of rape or incest. It would permit doctors to be sued or lose their license if the notification letter is not received for any reason. For a teen living in abusive or violent homes, her only alternative would be to plead her case to an administrative law judge at the Oregon Department of Human Services, a bureaucratic state agency that is already stretched too thin. These DHS services are not actual judges and would receive no special training in sensitive family matters.

The No on 43 campaign slogan says it best: Measure 43 is not simple, and it’s definitely not safe.

Fighting the measure has been a joint effort. We ACLUers are working with the No on 43 campaign in conjunction with a number of our fabulous coalition partners - NARAL Pro-Choice Oregon, Planned Parenthood, Basic Rights Oregon, and many more. We’ve also been endorsed by groups like the Oregon Medical Association, the Oregon Education Association, the Oregon Nurses Association, and too many more to name.

Between the campaign headquarters and the Planned Parenthood office and a series of misguided U-turns, we’ve seen it all from the comfort of our rental car, an outrageously blue PT Cruiser. Rachel immediately put her press skills to use by helping the staff here with press calls, blog outreach, and recording efforts. We’ve all been doing our part, working the phones every night, callng our Oregon membership to recruit volunteers and ask for donations. Dave Fidanque and Andrea Meyer from ACLU of Oregon have helped enormously in these efforts. We’ve also seen Portland’s thriving arts communities and colorful farmers’ markets in action - they’re great opportunities to educate voters. They’re also great opportunities to grab a delicious lunch, fresh local produce, and some of the best coffee we’ve ever had.

We’re working hard to defeat Measure 43, we’re enjoying the gorgeous autumn foliage, and we’re in the company of lots of friendly Oregonians and their dogs. So far, so good. We’ll keep you posted.

- Joanne Kang, Field Assistant

For more information:

Measure 43 puts barrier between pregnant teens and health care, The Oregonian

Law can’t force child-parent communications, Salem Stateman Journal

“Measure 43: No”, The Eugene Register-Guard

Even Dear Abby addressed the issue in a recent column …

With the midterm elections right around the corner, all of us on the ACLU Field Team hope November 7th is on people’s minds. The ACLU is a non-partisan organization, and takes no official position on candidates for elected office. But, we’re monitoring and organizing in a number of states on anti-civil liberties ballot initiatives.

In the next few days, we’ll be posting blog updates from ACLU activists in the fieldcolleagues and friends who are working hard to protect the civil liberties and privacy of all Americans.

Here’s just a handful of the initiatives our activists are involved in … In Michigan, we’re working to protect affirmative action; in South Dakota, Oregon and California, we’re fighting to preserve reproductive rights; in Virginia and Idaho we’re organizing against anti-gay ballot proposals; and in Wisconsin we’re helping organize against anti-gay proposals and a death penalty initiative.

Look for updates from across the country on these efforts and others. With the help of concerned activists and voters, we’re going to win on these issues!

A final note to keep in mind as you go to the polls next week: No matter how you vote, we care that your right to do so isn’t impeded. The ACLU Voting Rights Project have set up a special toll-free voter hotline, to respond to incidents of voter intimidation, vote suppression or election irregularities. If you want to report any voting problems, please call us on Election Day at 1-877-523-2792.

For more disptaches from the field, check back here often at www.aclu.org/dispatches.

See you on November 7!

Jeani Murray
National Field Director
ACLU

Both The Star-Ledger and the Courier Post have editorials supporting the decision by New Jersey to refuse federal money for abstinence-only-until-marriage programs. The Star-Ledger’s piece notes the important features of the federal programs — promoting sexual abstinence and teaching teens how to handle unwanted sexual advances — but says these lessons should also be accompanied by truthful messages about contraceptives:

The abstinence curriculum says there can be serious consequences to having unprotected sex. Yes, but that is precisely why it would be unconscionable for a publicly sponsored sex education program not to tell young people about contraceptives and ways to protect against pregnancy and disease if they do have sex — because kids are having sex.

The editorial goes on to say that, “[h]airy-palm scare tactics won’t work on this generation of young people,” and that using these sorts of tactics will “convince kids that their teachers don’t know what they are talking about, which is the worst thing that any sex education program could teach.”

Meanwhile the Courier Post piece, “Sex ed aid not worth curriculum changes” (which I can’t seem to find a link for), boils down the debate into two questions: “Should we respond to what we know teenagers are doing” Or should we stick to teaching only what we might want them to do?” The editorial notes that there isn’t one right answer for everyone, and that New Jersey doesn’t “need the federal government effectively trying to dictate its own view on “proper” teaching by making hundreds of thousands of dollars in aid dependent upon it.”

A post for non-lawyers who’d like a more detailed understanding of the legal issues in COPA …

The Supreme Court has held that “the First Amendment generally prevents government from proscribing speech, or even expressive conduct because of disapproval of the ideas expressed. Content-based regulations are presumptively invalid.”

We argue that COPA, which regulates speech considered “harmful to minors,” is exactly this sort of content-based regulation.

The Supreme Court didn’t hold that content-based regulations are always invalid, just that they are presumptively invalid. The Supreme Court scrutinizes such laws closely, and strikes them down unless they meet several criteria.

WHAT THE GOVERNMENT MUST PROVE:

- the regulation was implemented for the purpose of advancing a compelling government interest.

- the law is “narrowly tailored.” In other words, it must suppress only the speech that needs to be suppressed to advance the government’s interest. If the law unnecessarily abridges a lot of protected speech, or fails to proscribe a lot of speech that it just as bad as the speech that is criminalized, then it is not “narrowly tailored.”

- the government must establish that there are no less speech-restrictive alternatives to COPA.

THE REALITIES:

- No one disputes that the government has a compelling interest in protecting kids.

- COPA is not narrowly tailored. It criminalizes a wide swath of valuable speech. Salon testified about its fear that were COPA in effect, it couldn’t publish photos of the Abu Ghraib prisoner abuse. Nerve testified that it feared that much of its award-winning photography and journalism would subject the publication to prosecution. Lesbian rapper God-Des testified that she would fear prosecution for distributing her music for free on the Web.

- COPA fails to address a vast amounts of speech. It applies only to United States web sites. COPA will do nothing to protect kids from pornography originating in Japan, the Netherlands, or anywhere else in the world. And COPA applies only to the Web. COPA does not address cover email, Instant Messaging, and peer-to-peer programs such as eDonkey, among others. There are large amounts of pornography easily available through all of these methods of communication.

- At the same time, COPA’s harsh criminal penalties are unnecessary. There are many alternatives to COPA. For example, the government could encourage parents to place Internet filtering technologies on their computers. The government could enforce the obscenity laws.

The Star-Ledger reports that yesterday New Jersey rejected federal abstinence-only-until-marriage funding because, “the strings attached to the [federal] money contradict [New Jersey's] own sex education and AIDS education programs.” Since 1997, New Jersey had received around $800,000 a year from the federal government to teach these programs. New Jersey now joins California, Maine, and Pennsylvania as one of only four states in the nation that have rejected abstinence-only-until-marriage funding.

A state official quoted in the article notes that in the past New Jersey had adhered to several, but not all, of the elements required to receive federal abstinence-only-until-marriage funding:

For instance, the state adhered to section C, which teaches that abstinence from sexual activity is the only certain way to avoid out-of-wedlock pregnancy and sexually transmitted diseases. It supported section G, which teaches young people how to reject sexual advances, and section H, which teaches the importance of attaining self-sufficiency before engaging in sexual activity.

But new guidelines would require the state to follow all sections, “including one that teaches that monogamous marriage is the only expected standard and that sex outside of marriage is likely to have harmful psychological and physical effects.” A state official had this to say:

Monogamy is not a bad idea, but having the government of New Jersey dictate these things for families is not something we wish to do. It isn’t the function of state government to create standards (for sexual activity).

According to the article, some health educators welcomed the move:

“I personally feel that withholding medically accurate information to young people only does damage in the long run,” said Janet Lamonico, a health teacher at JP Stevens High School in Edison.

Danene Sorace, director of Answer, a Rutgers-based office that promotes comprehensive sex education, agreed.

“It is a small pot of money, but it is still significant as far as we’re concerned because that $800,000 is going to programs that are really ill-conceived,” she said.

Congratulations New Jersey!

I suppose it’s in the nature of a federal constitutional trial about sexual speech that there will be moments of amusing contrast: between the formality of the setting and procedures and the graphic nature of the testimony and evidence; between the serious expressions on the government lawyers’ faces and the words that come out of their mouths (”COPA applies to juicyboobs.com”); between the government’s desire to criminalize sexually explicit content on the internet and their eagerness to broadcast it in the courtroom.

The first two days of our trial challenging the so-called “Child Online Protection Act” (COPA) have produced some memorable moments. The government’s opening argument, which previewed their theory of the case, proceeded as a kind of syllogism: (1) we all know that COPA was intended to target only “commercial pornography”; (2) plaintiffs, who provide sexual but indisputably valuable material, are not commercial pornographers; (3) ergo, plaintiffs are crying wolf about their fear of prosecution under COPA. There’s a hole in this argument: COPA never uses the words “commercial pornography”; it broadly targets descriptions or depictions of sexual acts or nudity. In fact, the word “pornography” has no legal significance — it’s in the eye of the beholder. As one of our plaintiffs memorably explained in her deposition: ” Is pornography the intent of the creator or the experience of the reader? When I was 13, I masturbated to Jane Eyre. Was Charlotte Bronte a pornographer?”

Although a judge, and not a jury, will decide whether COPA violates the first amendment, you wouldn’t have guessed that if you listened to the government’s opening arguments. We were admonished that we should not “let this trial become purely an intellectual exercise,” but should “take a moment” to remember the children who were being harmed by pornography. We were told of the young girl who “typed [her] dog’s name” into a search engine, and “pictures of naked girls kept popping up.” I couldn’t help wondering what the poor girl had named her dog. (Are they sure it wasn’t a cat?. . . .)

When time permits, I’ll send some dispatches from the trial. In the meantime, one of our plaintiffs, Nerve.com, is providing its own blog coverage, which I commend to you. [LINK] I’ll sign off with a mystery. There is a stone-faced man with a large suitcase who has been observing proceedings form a perch in the corner of the courtroom. Today, one of my colleagues politely asked him who he was. He said that he was “part of a group” that is working on a “replacement law” in case “this one doesn’t work.” (By not working, I take it he means is struck down as unconstitutional.) When another colleague asked him his name, he exercised his constitutional right to anonymity (i.e., he refused to answer). But I did overhear snippets of a conversation he had with government lawyers. “There are some things I can’t say,” he was saying, “but I can tell you that the Family Research Council and the Concerned Women of America . . . .” That’s all I caught. Who is he? Keep checking the blog in case I learn more.

Though I’m Web editor here at the ACLU now, I was once an editor in the Kids and Teens area of About.com — and the COPA trial reminds me of the craziness we faced at About when COPPA (Children’s Online Privacy Protection Act of 1998), note the extra P, was first passed by Congress.

COPA with one P (Child Online Protection Act) is the latest in a long, long line of attempts to regulate and restrain the uniquely universalist space of the Internet. If you read Rufus Griscom’s entries about testifying in the current trial, you can get a sense of the surreal quality of the proceedings relative to the subject and of the history that Nerve.com has with COPA and Internet censorship.

For the folks at About, COPPA meant that if we didn’t retool the entire site, basically, we were looking at $30,000 dollars a day in fines and the CEO, someone who at the time I thought was a good guy, would be carted off to jail. All our good, healthy access to kids and all our useful, vital information about thousands of topics was put in jeopardy by a hysterical, ill-informed response to the infinite possibilities of the Internet.

Working at the ACLU I know now that there is even more confusion in the world of Internet censorship-related acronyms: There’s COPA, COPPA, CPPA, CIPA, and CDA, to name just a few.

Happily, the news from Philadelphia, the testimony and the commentary — like Nerve.com’s courthouse blog — show that we’re still keeping it straight, that we are still focused on the basic point: online speech must be free speech.

Ohio: Cleveland school officials have announced a plan to expand sex education curriculum to include age-appropriate lessons beginning as early as kindergarten in an effort to reach all 58,000 students in the city. (Currently many Cleveland schools only offer sex ed to middle and high school students). The announcement came in the wake of some startling statistics:

Cases of chlamydia, the most common STD, rose 30 percent over the past five years while HIV, rarely diagnosed in adolescents, turned up in 19 Cuyahoga County teens.

The classes will address self-esteem and peer pressure as well as biology. According to the article,

Children in grades K-3 will learn about how viruses work and appropriate and inappropriate touching. Grades 4-6 will start learning about menstruation and other aspects of reproductive health. In grades 7-12, the discussion shifts to interpersonal relationships, HIV/AIDS and other sexually transmitted diseases, teen pregnancy and respect for sexual orientation.

Participation in the classes will be voluntary.

A second article noted that the program will be funded by an $800,000 grant from Cuyahoga County, and an editorial in the Cleveland Plain Dealer says the effort is a smart move but calls for the classes to be mandatory, noting that “Teen sex isn’t a private matter, not when it devastates society.”

Virginia: A couple of articles follow-up on the abstinence-only-until-marriage assembly at Loudoun County High School last week. The Washington Post reports that the ACLU was originally alerted to the event by a local parent who was, “alarmed that the school system would invite a sex-ed presentation from someone who was not a health-care professional and who has ‘a clear religious agenda.’” Interestingly, the article touches on the trend of inviting religious speakers to speak at school assemblies on everything from drugs to bullying to suicide and of course, abstinence.

The Leesburg Today reports that a local watchdog group called Mainstream Loudoun sent an open letter to the school superintendent questioning whether Keith Deltano, the Christian comedian who led the assembly, was “qualified to conduct a curriculum-related program on sex.” A parent who attended the assembly and is involved with Mainstream Loudoun had this to say:

Deltano cherry-picked facts, gave children inaccurate and incomplete information and misrepresented the effectiveness of condoms. On a personal level, I’m a parent. We will encourage our children to wait. But at the same time we want them to get [complete and unbiased information].

Meanwhile the Free Lance-Star out of Fredericksburg has a letter-to-the-editor in response to an article about local schools requiring sex education. The letter writer says she believes

taxpayers would rather foot the bill for contraceptive education than prenatal care, childbirth, WIC, and possibly welfare due to a teenage pregnancy because of lack of knowledge about contraceptive choices!

It is a big day at the ACLU. After bouncing around the court system for eight years, our challenge to the federal government’s Internet censorship law is finally going to trial.

The law we’re challenging is called the Child Online Protection Act (COPA). COPA makes it a federal crime to put material that is “harmful to minors” on the Web. COPA would force massive quantities of constitutionally protected speech off the Internet. We’re asking the court to invalidate COPA because it violates the right to free speech guaranteed by the First Amendment.

The quantity of speech that would be criminalized by COPA is astonishing. Think about the topics of conversation that parents view as appropriate for their 5 year-olds. Then think about the topics that are appropriate for adults. The difference is huge.

In that gap falls a great range of speech on topics. It includes speech about whether it is okay to be gay. It includes fine art that happens to involve nudes. It involves sex ed advice geared toward teenagers who may be to embarrassed to ask anyone else.

The creators of all three sites above will be testifying at our trial. The information they provide is important. Our right to access it deserves to be protected.

Yesterday the Government Accountability Office (GAO) sent a letter to the Department of Health and Human Services (HHS) advising HHS to reexamine its position on the Public Health Service Act. The Act requires educational materials to contain medically accurate information about condom effectiveness.

HHS is the government agency that administers federal grants to support abstinence-only-until-marriage programs. This summer the agency announced that the Act’s medical accuracy requirements don’t apply to federal grantees because: the primary purpose of federally funded abstinence-only-until-marriage programs is not to address STDs, and materials prepared by grantees are for various target populations and not for the general population.

The GAO didn’t find either of these reasons to be legitimate reasons for noncompliance, but more importantly isn’t it just absurd that the government’s “principal agency for protecting the health of all Americans” goes to such great lengths to ensure that abstinence-only grantees are not bound by federal law requiring medically accurate information regarding condom effectiveness!

I guess we will have to wait and see how HHS will respond and whether or not it will start complying with federal law.

(In case you’re curious, the GAO is a federal nonpartisan agency that investigates the expenditure of taxpayer dollars for Congress. You can learn more about the GAO here.)