Free Speech and Content Controls in Cyberspace

Part 1CS 340

First Amendment of the US Constitution

• “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Free Expression & the Internet

• Tool for empowerment & democracy– But ease of publication = ease of doing harm

• S. Ct. in Reno v. ACLU– Anyone can become “a pamphleteer, … a town

crier with a voice that resonates farther than it could from any soapbox.” p. 57

• Question:– Are these rights and guarantees of the First

Amendment absolute?

Regulation of Speech

• As a general rule, government may not regulate speech ''because of its message, its ideas, its subject matter, or its content.'' – Police Dept. of Chicago v. Mosley US S. Ct 1972

• Ordinance about prohibiting picketing found unconstitutional as it had a provision allowing picketing for labor disputes.

• “In this case, the ordinance itself describes impermissible picketing not in terms of time, place, and manner, but in terms of subject matter. The regulation "thus slip[s] from the neutrality of time, place, and circumstance into a concern about content. This is never permitted. “

Forms of Unprotected Speech

• The First Amendment offers no protection or safe harbor for:

– Obscenity

– Defamation

– Speech that Incites

FCC v. Pacifica Foundation et al.• (1973 skit) George Carlin’s “Filthy Words”:

clean actual• 1978 US S Ct case• FCC power to regulate “indecent

broadcasting”• 18 U.S.C. 1464

• “Of all forms of communication, broadcasting has the most limited First Amendment protection. Broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children.”

Time, place, manner restrictions

Content Regulation in Broadcasts• Carlin example: time/place/medium

– FCC v. Pacific – (US S Ct) The Carlin case showed the government could restrict indecent material – that the material did not have to rise to obscenity.

• In 2001, FCC issued a regulation with penalties on nudity and profanity for broadcasts 6 am to 10 pm.– Janet Jackson & Justin Timberlake wardrobe malfunction, CBS $550 million fine.

• In 2004 ,this regulation was extended to “Fleeting expletives” • A 2010 ruling in the 2nd Circuit that F.C.C.’s states that the FCC regulations were

impermissibly vague on what words could be used. – that FCC policy “violates the First Amendment because it is unconstitutionally vague,

creating a chilling effect that goes far beyond the fleeting expletives at issue…”– (Easy to read)Opinion at http://tinyurl.com/Fox-v-FCC

• Supreme Court heard oral arguments on the appeal, Jan. 10, 2012– http://www.oyez.org/cases/2010-2019/2011/2011_10_1293

What is Chilling?

a) Making someone cold.b) Cooling food or drink in the fridge.c) Sitting around doing nothing.d) A situation where speech or conduct is

suppressed by fear.e) All of the above

Justice Bork and the V.P.P.A.

• Justice Robert Bork was an unsuccessful Reagan nominee for S. Ct.

• http://epic.org/privacy/vppa/

Defining Obscenity

• Standard is the 1973 Miller testa) “Whether the avg person, applying

contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;

b) Whether the work depicts or describes in a patently offensive way sexual conduct defined by state law;

c) Whether the work, taken as a whole, lacks literary, artistic, political or scientific value.”

Obscenity

• Miller’s “community” standard– Miller v. California, S. Ct. 1973– See 3 prong test, section 25 or p. 59-60 in text

• Internet blurs the traditional community/state/nation boundary.

» Community: “people living in same district…same laws”--Webster's

• Example : California porn in TN.

Pornography with Child Participants

• NB: child pornography can never be a form of protected speech. NY v. Ferber US S. Ct. 1982– http://en.wikipedia.org/wiki/Laws_regarding_chil

d_pornography

Regulating Pornography & Children

• Ginsberg v. New York, US S. Ct. 1968– NY statute found constitutional • Statute had made it illegal to willfully sell material

“harmful to minors” (depicting nudity, etc. p. 60’s 3 part test) to someone under 17.• Gives a constitutional precedent that pornography can

be regulated for minors

The Internet and Obscenity & Indecency

• P. 60-61: Widespread availability of porn on the Internet led to the Communications Decency Act of 1996 to protect children

• 2 provisions– “indecent transmission” & “patently offensive display”

• Prohibited the knowing transmission or display of obscene or indecent messages to recipients under 18

• Penalties: fines and/or 2 yr imprisonment• There was a good faith defense

• Subject of the case S. Ct. Reno v. ACLU (1997)

Reno v. ACLUSupreme Court Decision, June 1997

• Ruled these two provisions of the CDA unconstitutional on First Amendment grounds

• Ct noted “each medium of expression … may present its own problems … special justification of regulation (exist) for broadcast media that are not applicable to other speakers … These factors are not present in cyberspace.”

Reno cont’d

• Ct notes that the Internet is “not as invasive as radio or television.” Seldom is content “encountered by accident.”

• Ct notes the importance of having to take “affirmative steps” to encounter the material

• Ct says provisions are vague (did not follow Miller test), penalties are severe, and could operate to “chill” legitimate speech.– Review question: What is chilling?

Reno cont’d (2)

• Ct says – “the burden on adult speech is unacceptable if

less restrictive alternatives would be at least as effective in achieving the legitimate purpose the statute was enacted to serve”• This statute could not be construed to be narrowly

tailored.

– “Free Expression on the Internet is entitled to the highest level of First Amendment protection.”

Ashcroft v. ACLU

• A case that went to the US Supreme Court twice, 2002 & 2004 over the Child Online Protection Act (COPA, a.k.a. CDA II)

• Law stated that operators of commercial sexually explicit websites must collect ID in the form of a credit card number before visitors could access the material.– Found unconstitutional.

Ashcroft v. Free Speech Coalition

• US S Ct 2002– Struck down Child Pornography Prevention Act of

1996 as substantially overbroad• Prohibited any visual depiction including film, photo or

computer generated image that is of or appears to be of or suggests a minor engaging in sexually explicit conduct.

The Multnomah case – US v. American Library AssociationSupreme Court decision, June 2003

• Children’s Internet Protection Act– Provides funding for schools and libraries• For computer equipment: LSTA• For discounted Internet connection subsidies:

e-rate

– To get and retain, must show your computer systems have filters in place to reduce exposure to obscene materials.

Multnomah’s procedural history

• A.L.A sued US gov’t in a federal district court claiming that CIPA requirement violated the First Amendment

• The district court held for the A.L.A. saying that the CIPA’s filter requirement operated as an unconstitutional prior restraint on 1st amendment rights.

What is a Prior Restraint?

• Term referring to a government’s proscription to prevent materials or speech from being disseminated.

• Typically, if a law or policy is a form of a prior restraint, it would be subject to strict scrutiny.

What is Strict Scrutiny?

• A standard of judicial review• 3 prong test– Compelling Government Interest– Law/policy is narrowly tailored– Uses the least restrictive means for achieving that

interest.• When is strict scrutiny used?– When a fundamental constitutional right is in question– When a government law uses a “suspect classification”

Back to Multnomah…

• S.C. granted cert and heard oral arguments.• Opinion: a plurality opinion (4 justices)– Concurrences- two– Dissents: two, Stevens; Souter (Ginsberg joined)

• Issue: whether libraries using the CIPA filters violate the First Amendment

• Holding: No– this reverses the district court’s decision

Reasoning

• Libraries: role in our society– Never the aim for “universal coverage”, just material

“of greatest direct benefit” & “appropriate quality”– Librarians have always made content judgments.

• Evaluated with a rational standard of review.

• Rejection of the idea of the Internet access as a “public forum”

• Facts: Importance of ability to disable filter– What about embarrassment?

Statement of Rule, Policy

• Gov’t has broad latitude in creating legislation to further public policy & set limits that public funds spent for the purposes authorized– Rust std.– http://en.wikipedia.org/wiki/Rust_v._Sullivan

• Filtering software was a reasonable way of helping to guard against porn & does not violate the First Amendment.

Automating content controls

• Discussion, pp. 65- 73

• P. 69: What constitutes responsible or ethical use of automated controls?– Voluntary– Transparency– Low-level implementation

First Amendment rights of patrons

• Library patrons’ First Amendment challenge– P. 70 Mainstream Loudon v. Loudon Co. Library

– P. 71 quote

– Problem: application of filter to both children and adults. In Multnomah a patron could ask to have the filter unblock.