Federal Appeals Court Clears Way For ACLU Lawsuit Over FBI Censorship of Website

July 13, 2004

NEW YORK— The American Civil Liberties Union today said it will be moving forward in its First Amendment lawsuit over censorship of a controversial website by federal law enforcement officials, now that a federal appeals court has rejected the government’s attempt to dismiss the case.

The ACLU lawsuit, filed in December 1999, charged that officials at the U. S. Department of Justice and the Federal Bureau of Investigation intimidated an independent filmmaker and his website operator in an attempt to have a controversial film removed from the Internet.

“The government cannot bully controversial speakers into self-censorship,” said J.C. Salyer, a staff attorney at the ACLU of New Jersey who represents New Jersey artist Mike Zieper and his web host, Mark Wieger of Michigan. “Our clients believe they had the right to show the film without government intimidation, and they are now looking forward to having their day in court.”

Zieper’s film, a fictional six-minute video entitled “Military Takeover of Times Square,” portrayed a secret army plan to incite a race riot in Times Square at the millennial New Year's Eve celebration. The ACLU lawsuit charged that Zieper and Wieger were subjected to intimidating phone calls from an FBI agent and a federal prosecutor who wanted the film removed from the Internet. The FBI even went to Zieper’s home at night in their attempt to have his film censored. As a result of the government pressure, the film was removed from the website for a period of time prior to New Year’s Eve.

Up to this point, the ACLU lawsuit has primarily dealt with the government’s claims that law enforcement officials did not clearly violate the First Amendment and that they should be granted immunity for their actions, Salyer explained. In a ruling issued yesterday, the federal appeals court affirmed the trial court’s holding that the First Amendment allegations, if proved, would be a constitutional violation. The ruling also clears the way for the ACLU to have the merits of their clients’ case heard.

“As the Supreme Court has ruled, speech on the Internet is entitled to full First Amendment protection,” Salyer noted. “The government cannot directly order the censorship of a controversial website, nor can it use intimidation to suppress controversial speech on a website, as was done in this case.”

The case is Zieper et al. v. Ashcroft et al., Docket No. 02-618. The opinion by the Second Circuit Court of Appeals can be found online at http://www.ca2.uscourts.gov.

The attorneys in the case are Ann Beeson, Chris Hansen and Juan G. Villaseñor of the national ACLU and Salyer and Ed Barocas of the ACLU of New Jersey.

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