An open letter to the U.S. Congress

Re: EARN IT ACT (S. 3398) Violates First Amendment

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I am writing to express concern that the EARN IT Act violates the First Amendment in several ways and to urge the Senate Judiciary Committee not to advance the bill. The core problem is this: Although the EARN IT Act attempts to protect children from online sexual exploitation—it does so by impermissibly regulating online speech. The Act forces online service providers to make an impossible choice: cave to government pressure regarding their editorial decisions or face significant new criminal and civil liability. The Act authorizes the creation of a commission that will draft “best practices” to “prevent, reduce, and respond” to such content. If the “best practices” are approved by the attorney general, representatives from the Department of Homeland Security and Federal Trade Commission, and Congress, online service providers must comply with them in order to preserve certain protections from criminal and civil liability. Additionally, the EARN IT Act’s “best practices” will likely create a censorship regime that pressures online platforms to employ before-the-fact content screening that will prohibit speech from being posted in the first place. The EARN IT Act Fails Strict Scrutiny Under the First Amendment and Infringes on Editorial Activity Protected by the First Amendment. The EARN IT Act is fundamentally flawed and inconsistent with well established First Amendment protections. The Senate Judiciary Committee should not advance the bill.

First sent on June 3, 2020 by Julia

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