The Internet represents a unique medium for expression: text, pictures, video, email, news groups, chat rooms. Independent of geographical location. WWW search engines, links between documents. Easy to publish on the WWW. No central point of authority to block or control content.
Difficult to publish content to selective groups. Unlike radio or TV broadcast, receipt of information over the Internet requires more effort, independent of time.
Difficult to do age verification.
It is possible to limit objectionable content but not without also limiting acceptable speech.
1998 - Internet has 100 million users
Internet has extremely low entry barriers.
Freedom of speech is protected by the 1st Amendment to the 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 grievance.”
Key words: Congress, prohibiting, speech.
Constitutional free speech guarantee only applies to government (federal, state, universities, etc), not private entities. AOL can prohibit users from making references to the Catholic Religion if they want.
The issue under the First Amendment is not "can speech be abridged", but "who can abridge speech?"
The First Amendment only protects against government intervention.
There are different categories of speech. Some have no protection (obscenity or threats), some intermediate (commercial advertising), others full ( ideas about politics and government).
Central Hudson test for evaluating regulations on commercial speech:
The First Amendment imposes "a 'content discrimination' limitation upon a State's prohibition of proscribable speech." ie The State may impose restrictions on certain types of speech that is false or misleading but not confined to a specific topic. For example, it's OK to use the brand name "The Original Crazy Horse Malt Liquor". The Minnesota statute, which prohibits the registration of a malt liquor brand label that "states or implies a false connection with an actual living or dead American Indian leader," is unconstitutional.
Content-based speech restriction is only constitutional if it can be shown that the restriction is the least restrictive means for meeting the governmental interest (have to prove a government interest, protecting minors from indecent material qualifies as a government interest).
TV is regulated because of "scarcity" and "pervasiveness." ie limited number of channels (view points) and ease with which it can enter the home. Internet is pervasive also but there are technical solutions to making it less pervasive.
Can you post a bomb recipe on the Internet? Yes, "violent speech is only illegal if it occurs in a context which causes an immediate apprehension of harm"
Indecent speech cannot be banned from the media, but may be pushed to a time and place where it is unlikely that minors will get access. Can regulate, but not ban, indecent speech.
Obscenity is not considered to be "speech" and therefore not entitled to First Amendment protection.
Can you burn a flag? Yes. Can't make the act illegal because burning a flag is an acceptable way of disposing of one. A ban on burning a flag in anger is clearly a ban on free speech.
Is hate speech protected? Yes. Unless it is libel, obscene, or fighting words.
Government may not restrict fully protected speech unless it has a compelling interest for doing so, and limits placed on fully protected speech because of a compelling interest must be no more restrictive than are necessary to fulfill the interest being protected. You will see this is one of the reasons the CDA was judged unconstitutional.
The constitution doesn't say that it's impossible to judge
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
The interpretation of the First Amendment together with the 14th is what prohibits States from limiting free speech. This was confirmed by the Supreme Court in 1925.
The First Amendment guarantees freedom of speech to US citizens to the extent it doesn't infringe on the rights of others. You can say what you want as long as it doesn't "create a clear and present danger that they will bring about the substantive evils that Congress [or the state] has a right to prevent." Can't shout "Fire!" in a crowded theater when there is no fire.
Criminal punishment of speech can be justified if the speech would result in "clear and present danger". Inciting violence is permissible unless the speech is linked to "imminent lawless action" and is likely to incite it.
Can the government ban newsgroup posts that express bigoted viewpoints? (No, bigoted speech is fully protected and the ban is content-based.)
Can you burn a flag? (Yes, form of political speech.)
What if everyone agreed that some behavior or speech was morally repugnant. Could it be banned? For the sake of argument assume that no one was willing to defend it. (No, it can't be banned. The constitution is about protecting freedom expression regardless of the opinion of the majority.)
Kansas, SB 670 (introduced Feb. 13, 1998) withholds any appropriated funding for public libraries or schools, municipal university, community colleges that do not install software filters on their Internet access.
Senate Commerce Committee passed (on voice vote) the Internet School Filtering Act, a
bill that requires all public libraries and schools that receive federal funds for
Internet access to use blocking software. Urging against the policy, the ACLU said in a
letter
to the Committee that "the government may not condition federal funding on
unconstitutional requirements," emphasizing that "parents and teachers, not the
government, should provide minors with guidance about accessing the Internet."
Dec. 2000 - amendment attached to a sweeping appropriations bill requires that public schools to block material inappropriate for children if they want funding including images. As provisions for incorporating community standards which will make it hard to generalize in software that is sold around the US.
Content-based restrictions on protected speech are not constitutional unless unless it can be shown "the restriction is the least onerous means of protecting a compelling government interest"
(February 8, 1996) The Communications Decency Act (CDA) was enacted as part of a massive overhaul of telecommunications legislation. It makes displaying "indecent" or "patently offensive" words or images on the Internet -- accessible to minors -- punishable by a $250,000 fine and a two-year prison sentence.
Indecent but not obscene speech is protected by the First Amendment.
Definition of obscene that will hold up in a court of law:
"(a) whether the average 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 specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."
Definition of indecent (for the purposes of radio broadcast) is material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities. Indecent programming contains sexual or excretory references that do not rise to the level of obscenity.
There is no protection for obscene speech, indecent speech can be restricted to times when children are unlikely to be exposed to it.
(June 26, 1997) U.S. Supreme Court struck down the CDA
American Civil Liberties Union (ACLU), "nonprofit litigation and lobbying organization founded in 1920. Originally established to defend conscientious objectors during World War I (1914-1918), the organization later expanded its activities to include defending "freedom of expression, privacy, due process, and equal protection—in a nonpartisan fashion on behalf of anyone, irrespective of how unpopular the cause." -- Encarta
275,000-member public interest organization
"In every era of American history, the government has tried to expand its authority at the expense of individual rights. The American Civil Liberties Union exists to make sure that doesn't happen, and to fight back when it does." - www.aclu.org
Majority opinion: unconstitutional on First Amendment grounds.
Court is now making laws that will operate in the on-line world.
Is Cyberspace amendable to zoning laws? (Users can be anonymous. There is geography. Can construct barriers, require passwords, proof of ID and age. User-based screening programs. Tags to rate sites.)
The Internet is "the most participatory form of mass speech yet developed and is entitled to highest protection from governmental intrusion."
Justice Stevens wrote: "The breadth of the CDA's coverage is wholly unprecedented. ... the scope of the CDA is not limited to commercial speech or commercial entities. Its open-ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors. The general, undefined terms `indecent' and `patently offensive' cover large amounts of nonpornographic material with serious educational or other value."
"The CDA ... does not allow parents to consent to their children's use of restricted materials" The law "is not limited to commercial transactions; fails to provide any definition of 'indecent' and omits any requirement that 'patently offensive' material lack socially redeeming value; neither limits its broad categorical prohibitions to particular times nor bases them on an evaluation by an agency familiar with the medium's unique characteristics; is punitive; applies to a medium that, unlike radio, receives full First Amendment protection; and cannot be properly analyzed as a form of time, place, and manner regulation because it is a content-based blanket restriction on speech."
The CDA's "use of the undefined terms 'indecent' and 'patently offensive' raise special First Amendment concerns because of its obvious chilling effect on free speech," the law's "breadth is wholly unprecedented. The CDA's burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the Act's legitimate purposes.... The Government has not proved otherwise."
Why doesn't radio receive full First Amendment protection?
Concurring/Dissenting Opinion (Chief Justice William Rehnquist and Justice Sandra Day O'Connor): the CDA can be applied constitutionally in some situations. The creation of "adult zones" can be constitutionally sound. A "zoning" law is valid only if adults can still obtain the regulated speech.
Is a law that bans anonymous e-mail unconstitutional? (Yes, anonymous speech generally gets the same protection as non-anonymous speech. Makes it possible to express unpopular views without fear of reprisal. Anonymity also makes it easier for people to seek help/information they need.)
Supreme court case McINTYRE v. OHIO ELECTIONS. Supreme Court struck down a state law banning distribution of anonymous campaign literature.
Should the Internet be regulated like radio and TV or like print media? Why? There are limits on the number of broadcast stations. Can be controlled. More easily accessible to children.
Child Online Protection Act (COPA) - Signed by President Clinton October 21, 1998. This act states,
Is it constitutional?
In the case of a prior restraint on pure speech, the hurdle is substantially higher [than for an ordinary preliminary injunction]: publication must threaten an interest more fundamental than the First Amendment itself. Indeed, the Supreme Court has never upheld a prior restraint, even faced with the competing interest of national security or the Sixth Amendment right to a fair trial.
DeCSS was reversed engineered. Does it violate trade secrets? Is it a legal use of reverse engineering? Does it violate the DMCA? Does the DMCA include fair use provisions? The ruling today is only that software is speech and it can't be blocked via prior restraint.
The movie industry's "statutory right to protect its economically valuable trade secret is not an interest that is 'more fundamental' than the First Amendment right to freedom of speech," the judges wrote. Nor is it "on equal footing with the national security interests and other vital governmental interests that have previously been found insufficient to justify a prior restraint."
References
http://www.cdt.org/speech/ACLUvsRENOdecision.shtml
http://www.ssrn.com/update/lsn/cyberspace/csl_lessons.html
http://personal.law.miami.edu/~froomkin/articles/RENO.htm - good reference for CDA