House of Janklow Tactics

December 18, 1996

Dear Governor Janklow

We are writing on behalf of the American Civil Liberties Union (ACLU), the ACLU of the Dakotas, and the ACLU of Michigan to inquire about reports that your office has instituted a block on all electronic mail (e-mail) messages coming from an Internet Service Provider, Technology Dimensions, Inc. (TDI), located in Michigan. Press reports suggest that you insituted the block to stop e-mail messages being generated from a World Wide Web site established by a Michigan resident named Linda LeMonde for the American Indian Movement (AIM). Ms. LeMonde's site, which is located on TDI's server, includes a form that allows any Internet user to sent e-mail messages directly to your office. She established the form as a means to petition the government to oppose restrictions on Native American land use. [A correction has been added so as to align the "form" with the First Nations petition site.]

Our information regarding this matter comes from various sources, including articles in The New York Times and C\NET, and from TDI. See Pamela Mendels, "Misinformed Petitioner Cries Censorship Over Blocked E-Mail" in The New York Times, at (December 6, 1996); Janet Kornblum, "Email Block Called Illegal" in C\NET, at (December 6, 1996). Before proceeding further, we thought it best to communicate with you directly and allow you an opportunity to clarify our understanding of the facts and to confirm whether the block is currently in place.

For many individuals, the Internet offers the most effective and efficient way to communicate with government officials. It is an extraordinary and powerful tool in the hands of a democracy's citizens. As one federal court has recognized, "the Internet. . .[is] the most participatory marketplace of mass speech that this country -- and indeed the world -- has yet seen. . .[where] individual citizens of limited means can speak to a worldwide audience on issues of concern to them." _American Civil Liberties Union v. Reno_, 929 F.Supp. 881 (E.D. Pa. 1996).

As you know, there are no rights more fundamental to American democracy than those in the First Amendment that protect the right of free speech and the right to petition the government for redress of grievances. The Supreme Court has held that "[a]t the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern." _Hustler Magazine v. Falwell_, 485 U.S. 46, 50 (1988)

Your actions, if accurately reported, implicate both the right to free speech and the right to petition the government. In its most recent examination of an individual's right to petition, the Supreme Court noted that "[t]he right to petition is cut from the same cloth as the other guarantees of [the First] Amendment, and is an assurance of a particular freedom of expression." _McDonald v. Smith_, 472 U.S. 482 (1985). The Court went on to find that "the values in the right to petition as an important aspect of self-government are beyond question." 472 U.S. at 483. In _Hoffman v. Mayor, Councilman & Citizens of Liberty_, 905 F.2d 229 (8th Cir. 1990), the court held that the Petition and Speech Clauses of the First Amendment provide equal guarantees of free expression and are subject to the same First Amendment analysis. 905 F.2d at 233.

If your office is in fact blocking e-mail messages addressed to the Governor, these actions may constitute two distinct violations of the First Amendment rights of Ms. LeMonde, users of her web site, and other TDI customers. First, to the extent that you have blocked e-mail from Ms. LeMonde's web site on the basis of its inaccuracy, you have engaged in the content-based discrimination that is at the core of what the First Amendment prohibits. As the Court has repeatedly held, the government may not censor speech solely because it believes the speech to be inaccurate. See _Pickering v. Board of Education_, 391 U.S. 563 (1968); _New York Times v. Sullivan_, 376 U.S. 254 (1964). In addition, the alleged inaccuracy of the information on Ms. LeMonde's web site would fail to justify the blocking of messatges on other subjects that originate form the site.

Second, to the extent that you have blocked messages from other TDI customers, whether they were part of Ms. LeMonde's petition drive or not, the block constitutes an impermissible restriction on speech which neither serves a compelling state interest nor is narrowly tailored. It would therefore also violate the free speech and petition rights guaranteed by the First Amendment.

We sympathize with the fact that you may have been deluged with e-mail. However, for obvious reasons, the government may not censor speech unless the speech is "shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." _Terminillo v. Chicago_, 337 U.S. 1, 4 (1949).

For these reasons, we strongly urge you to lift any block on messages from TDI, and to provide full access to all citizens who seek to communicate with your office by e-mail. We look forward to your early reply.


Ann Beeson, Staff Attorney
Stephen Pevar, Staff Attorney
American Civil Liberties Union
National Legal Department

Keith Elston, Executive Director
American Civil Liberties Union of the Dakotas

Paul Denenfeld, Legal Director
American Civil Liberties Union of Michigan

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