Message #428:
From: AzTeC SW Archaeology SIG
To:   "'Matthias Giessler'" 
Subject: One Person's Sacred Native American Site Is Another Person's Spam
Date: Thu, 26 Dec 1996 21:41:32 -0700
Encoding: MIME-Version: 1.0

[ Of interest to all government employees, here is an discussion (or
lack thereof) on the Internet/via E-mail regaring Native American sacred
sites -- SASIG Ed. ],4,5988,00.html
Email block called illegal -- By Janet Kornblum December 6, 1996, 1:45
p.m. PT The American Civil Liberties Union is considering taking action
against the state of South Dakota, charging that it violated the U.S.
Constitution when it blocked email from an Internet service provider
whose customer was sending mass mailings. Online services such as
CompuServe (CSRV) and America Online (AOL) have a right to block email
from individuals because they're private and customers can simply choose
to go elsewhere if they don't like their policies, said Ann Beeson, a
spokeswoman with the ACLU. CompuServe is asking a federal judge to allow
it to ban email from a notorious spammer. But when South Dakota blocked
all email coming from Technology Dimensions because a customer of the
ISP was forwarding mass email petitions to government employees about a
controversy over sacred Native American sites, it violated the 
Constitution, Beeson said. "We believe that South
Dakota's efforts to restrict email access to government officials is a
violation of the First Amendment and citizens' rights to petition their
government," she said. Mike Godwin, staff attorney for the Electronic
Frontier Foundation, agreed. While private companies like CompuServe can
pretty much ban any email they wish, a government body has to answer to
the Constitution, Godwin said. "If I walked down the street and said
CompuServe must listen to me, you might think, 'That guy's a little
inflated,'" Godwin said. On the other hand, he added, "if you said I
have a complaint against the government of South Dakota and they are not
even opening my mail, you have a different issue." Jim Soyer, spokesman
for Governor William Janklow, defended the state's move, saying
government employees were being flooded with petitions filled with
inaccuracies. "It's just like junk mail," Soyer said. He added that he
tried contacting the woman leading the petition drive through email and
by phone but was unable to reach her all of Tuesday. When officials
couldn't contact her to correct what Soyer said were factual errors in
the email, they blocked TDI from sending email to the site. Had the
petition been accurate, Soyer said, they would have allowed the spams,
regardless of how many were sent. "She refused to listen to us, and why
should we listen to her?" he asked. But Beeson and Godwin said it's not
that simple.

The government has a constitutional obligation to listen, they say,
regardless of the message's content.

 "It's not that you only get to petition to government when the
goverment judges you to be correct," Godwin said. Beeson added that
because South Dakota blocked everyone, they couldn't have known the
content of other email. "Their block had the effect of blocking
legitimate messages," she said.,4,6334,00.html
Short Take: ACLU challenges South Dakota Net law -- By Janet Kornblum
December 18, 1996, 3:30 p.m. PT 
The American Civil Liberties Union is investigating to see if South
Dakota violated the First Amendment when it blocked all email sent from
a specific Internet service provider. Earlier this month, the state
government blocked email sent from ISP Technology Dimensions. A 
customer of the service was spamming government employees about a
controversy involving sacred Native American sites; the governor's
office said the petitions were inaccurate. But blocking email access to
state employees may violate the Constitution, according to the ACLU. 

See also:
Bear Butte - Black Hills (South Dakota, USA)
South Dakota prohibition against Native ceremonies
ACLU RESPONDS TO 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 messages on
other subjects that originate from 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


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