Transcript Document

Free Speech Issues in
Technology
Part 3 Threats, Hate Speech, Violence in Video Games, & Defamation
Spring 2015
The Miller test for obscenity uses a _____
standard.
Worldwide
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Which of the following cases featured a law that was
upheld as a constitutional regulation of speech?
FCC v. Pacifica (Carlin)
FCC v. Fox
Reno v. ACLU
A and B only
A, B and C
None of the above
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Which of the following cases featured a law that was
upheld as a constitutional regulation of speech?
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A. Ashcroft v. ACLU
B. Ashcroft v. Free Speech
Coalition
C. US v. American Library
Association
D. A and B only
E. A, B and C
F. None of the above
Foundations of Free Speech, pp. 244-9
John Stuart Mill’s utilitarian arguments about limited government
restrictions on free speech and other First Amendment issues.
TWO IDEAS
1. Idea of a balancing of interests is very close to a weighing of pros
and cons.
• Examples:
• Amish and schooling (Wisconsin v. Yoder, US S Ct 1972)
• Amish and orange triangle on buggy (Gingerich v. Kentucky, KY 2012)
Foundations of Free Speech cont’d
SECOND IDEA:
2. Free exchange of ideas promotes truth seeking, suppression of ideas
of the minority view reduces the perception of truth for all.
• “Laws governing free speech in the US today are generally consistent
with Mill’s view.”
• Pp. 245-7, lists of kinds of speech people desired to suppress
Unprotected speech
• No right to engage in these forms of speech:
1. Obscenity (Jan 27)
• Merely indecent speech may be allowable* (video lecture, Jan 29)
2. Speech that Incites (today)
3. Defamation (today)
Speech that incites
• Incite: to encourage, bring about, to move to action
• Current test for speech that incites:
• imminent lawless action test from Brandenburg v. Ohio(1969)
• Intent, imminence, likelihood
• “These later decisions have fashioned the principle that the constitutional guarantees of
free speech and free press do not permit a State to forbid or proscribe advocacy of the
use of force or of law violation except where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite or produce such action.”
Kinds of speech that incites
1. True threat
2. Fighting words
• Defined as words intentionally directed at a listener with malice to
cause listener to immediately retaliate. Their utterance inflicts injury
and an immediate breach of peace. (Chaplinsky v. NH, US S Ct 1942)
• F ace to face abusive language likely to provoke violence (Gooding v.
Wilson, US S Ct 1972)
• Examine the actions or words to see if the imminent lawless action test is
met.
_____ must be delivered in a face to face
conversation.
True threats
Fighting words
Both of these
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Recent examples of threats
• Jeremiah Perez (Dec 2014 arrest) for YouTube comments
• http://www.usatoday.com/story/news/2014/12/23/man-threatens-copsyoutube-colorado/20827997/
• Pending US Supreme Court case Elonis v. US
• What is a threat and what is self-expression?
• Is the standard an objective or subjective intent to threaten?
• http://www.oyez.org/cases/2010-2019/2014/2014_13_983
• http://www.cnn.com/2014/12/01/politics/supreme-court-elonis-vs-u-s-freespeech/index.html
Examples for you to look through:
• Fighting words case: Lady threatens cop
• http://www.firstamendmentcenter.org/her-cop-cussing-ruled-fighting-words-not-free-speech
• Compare:
1.
Threatening presidential candidate Obama on yahoo message board:
• http://www.time.com/time/nation/article/0,8599,2084921,00.html
2.
Jarvis Britton’s F.E.A.R Twitter comments:
•
http://www.huffingtonpost.com/2013/06/20/obama-threat_n_3473452.html
• Tweets that threaten as free speech: 8,000 “troublesome” tweets at Alyce
• http://venturebeat.com/2011/12/16/tweets-online-stalking/
• Jailed for sarcasm?
• http://www.huffingtonpost.com/2013/06/27/teenager-justin-carter-facebook-comment-jail_n_3512025.html
• Jake Baker
• http://en.wikipedia.org/wiki/United_States_v._Baker
• Planned Parenthood v. American Coalition of Life Activists (ACLA)
• Abortion providers website; were the strike-through of names threats?
Hate Speech
• Hate Speech: speech that disparages a group based on a
characteristic
• In the United States, hate speech may be protected under the
First Amendment.
• Only hate speech that meets the imminent lawless action standard is
unprotected speech (likely to incite immediate violence as fighting
words or as threat)
• In France and Germany, hate speech is illegal.
• Note the use of US servers to bypass regulations.
When is hate speech unprotected speech?
Always
If it constitutes a true threat
If it constitutes fighting words
Either B or C is correct
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Misc. Free Speech & Technology Issues: Video
Games
• Does a state law that restricts the sale or rental of violent video
games to minors comport with the First Amendment?
• 2001 7th Circuit decision American Amusement Machine Assn v. Kendrick
• Indianapolis ordinance limited access to minors of games depicting violence by requiring
owners of facilities w/ 5 or more game machines to have a separate area w/ parent or
guardian accompaniment.
• Ordinance found to violate 1st Amendment.
• Brown v. Entertainment Merchants US S Ct 2011
• 2005 California law, section I of the opinion
• Note how the language tracks the Miller test for obscenity.
Brown v. Entertainment Merchants
US S Ct 2011
• “… video games qualify for First Amendment protection.”
• Why? Games communicate ideas & social messages using plot, characters,
music
• “Esthetic and moral judgments … are for individuals … not
governments” US v. Playboy Entertainment US S Ct 2000
• “And whatever the challenges of applying the Constitution to everadvancing technology, ‘the basic principles of freedom of speech and
the press, like the First Amendment’s command, do not vary’ when a
new and different medium for communication appears.” Burstyn v. Wilson US S
Ct 1952
Brown cont’d
• “The most basic of those principles is this: ‘[A]s a general matter, . . .
government has no power to restrict expression because of its
message, its ideas, its subject matter, or its content.’” Ashcroft v. American Civil
Liberties Union US S Ct 2002
• Scalia lists the only acceptable areas for gov’t to restrict content of
speech: obscenity, incitement, & fighting words.
• Scalia says last term’s holding in Stevens precludes adding other
categories that legislatures deem to harmful.
• US v. Stevens: http://en.wikipedia.org/wiki/United_States_v._Stevens
• No new categories by virtue of a “simple balancing test”
Brown cont’d
• CA law is trying to shoehorn in by looking like it’s a permissible
obscenity statute.
• “Violence is not a part of the obscenity that the Constitution permits to be
regulated.”
• Obscenity is only concerned about depictions of sexual conduct.
• Distinguishing Ginsberg
A New Category for Governmental Regulation
of Speech?
• No, there will be no new category of content-based restrictions
directed at children.
• Court notes that there has been no historic (successful) prohibition of
violence in stories directed at children.
• Fairy tales, high school reading lists
• Comic books
• Interactive argument?
• Choose Your Own Adventure
• Judge Posner (all literature as interactive)
Content Regulations holding
• Content regulations subjected to strict scrutiny
• Compelling gov’t interest
• Narrowly tailored
• Ct says California does not meet its burden show direct causal link
between violent games and harm to minors.
• Lasting measurable effects? no
• About the same as tv viewing of violence, other violence
Do you agree with the Supreme Court in
Brown?
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A. Yes, video games are speech
and regulations prohibiting
games should pass strict
scrutiny.
B. No, while video games may be
speech, violent games need to
be kept from children any way
that it can be.
C. I disagree with all the
statements above.
Violence in Video Games –
Recent Updates
• In February 2014, the House Ways and Means Committee began
considering removing a tax credit. In the past, companies who make
violent video games could be eligible for a tax credit related to
research and development of technology to encourage businesses to
operate in the US
• This could case a rise in video game prices
• http://www.gamespot.com/articles/violent-game-makers-would-be-deniedtax-credit-under-new-reform-blueprint/1100-6417989/
Defamation: no First Amendment right to
defame
• Defamation required elements to prove:
1. False statement of fact about plaintiff by defendant
2. Publication - communicated to a third party
3. Damages the reputation of the plaintiff
•
Defamation forms
•
•
•
Oral: slander
Written: libel
Negligence standard, Gertz (1974)
Can you defame someone with a true,
dark secret?
A. Yes
B. No
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A defamatory tweet would be an
example of
A. Slander
B. Libel
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Defamation per se:
• If it’s defamation per se, proving harm to reputation is not required
• Per se categories:
•
•
•
•
disease;
criminal actions;
misconduct related to profession or business;
sexual misconduct.
• False statements involving these items are always actionable
If you are bring a lawsuit claiming the statement was
defamation per se, you will not have to prove
A. That the statement was
communicated to a
third party
B. That the statement was
false
C. That the statement
harmed your
reputation
D. All of the above
E. None of the above
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Defenses, Exceptions to Defamation
•
Is it a statement of fact?
•
•
Facts: capable of being objectively verified.
Is it an opinion?
•
•
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Generally, opinions are protected speech.
Stating false information ≠ opinion
Other exceptions:
•
“merely” offensive statements
•
The “Dumb Ass” example in Vogel v. Felice
•
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Hyperbole
•
•
“… if the meaning conveyed cannot by its nature be proved false”
Hustler v. Falwell
Libel proof plaintiff
Which of the following is NOT a per se
category for defamation?
Disease
Hyperbole
Criminal conduct
Business misconduct
Sexual misconduct
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Defamation and public figures
• Public figure: celebrity, politician, public official
• Examples:
http://www.citmedialaw.org/legal-guide/examples-public-and-private-figures
• In addition to the three requirements, public figure plaintiffs
must prove that the defendant acted with actual malice (NY
Times v. Sullivan)
• Knowing that it was false or with active disregard to statements
truth.
• Regular defamation tests merely for negligence
• Reasonably prudent person, reasonable care
• Ex. David Beckham’s $25 M suit against In Touch
• http://www.guardian.co.uk/football/2011/feb/15/david-beckham-magazinelibel-judge
Public figures who sue for defamation have an
additional element to prove about the statement. What
is it?
A. the statement was
communicated to a third
party
B. the statement was false
C. the statement was made
with actual malice
D. the statement harmed
his/her reputation.
E. the statement was made
with negligence.
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