Electronic Speech - Carnegie Mellon University

Transcript Electronic Speech - Carnegie Mellon University

Lecture 3: Electronic Speech

Outline

• Regulatory powers • Exactly what is “freedom of speech”?

• What is Electronic Speech?

Freedom of Speech

• The First Amendment (1791): Congress shall make no law….abridging the freedom of speech, or of the press … • Applies to

federal government

regulation of speech • The “liberty of the press and of speech is within the liberty safeguarded by the due process clause of the 14th Amendment from invasion by state action.”

Near v. Minnesota

, 283 U.S. 697 , 707 (1931).

• Applies to

state government

regulation of speech • Neither applies to

private

rules or contracts, such as terms of use of a website, or employer restrictions.

Is All Speech Free? NO

• Speech that leads to actions – Causing panic: Falsely yelling “Fire!” in a crowded theatre – “Fighting words” – Test: “clear and present danger” [of illegal action or injury] • Defamatory matter: libel, slander • False advertising, advertising dangerous products – Gender designation in employment ads,

Pittsburgh Press

, 413 U.S. 376 (1973) • Fraud • Conspiracy, incitement to crime, solicitation • Trade secrets • Invasion of privacy • Obscenity 45 848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Supreme Court Tests for Speech Restraint

STANDARD STRICT SCRUTINY INTERMEDIATE SCRUTINY RATIONAL REVIEW

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WHEN APPLIED

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PUBLIC SPEECH

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VIEWPOINT

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CONTENT RESTRICTION *

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NON-CONTENT RESTRICTION

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COMMERCIAL SCHOOLS

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UNPROTECTED SPEECH, e.g.

OBSCENITY GOV’T INTEREST

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COMPELLING INTEREST

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LEGITIMATE INTEREST **

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TIME, PLACE MANNER

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SOME INTEREST

• •

STATUTE MUST BE

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NARROWLY TAILORED TO ACHIEVE ONLY THE INTEREST REASONABLE RESPONSE TO THE INTEREST *** RELATED TO THE INTEREST * DOES NOT APPLY TO ALL CONTENT-ORIENTED SUPPRESSION ** OTHER THAN SUPPRESSING FREE EXPRESSION *** INCIDENTAL 1st AMENDMENT EFFECT NO MORE THAN NECESSARY TO PROTECT INTEREST

Is All Speech Free?

• Atomic Energy Act: “Whoever, $10,000 or 10 years, or both. lawfully or unlawfully, having possession of … any document … plan, … or information … incorporating [data concerning design, manufacture, or utilization of atomic weapons] - communicates, transmits, or discloses the same to any individual or person … with reason to believe such data will be utilized to injure the United States” 42 U.S.C. §2274 • Computer Fraud and Abuse Act prohibits, with intent to defraud, trafficking “in any password or similar information through which a computer may be accessed without authorization.” 18 U.S.C. §1030 • Where the danger outweighs the impact on free speech, the speech can be prohibited 45 848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Traditional Categories of Speech

• Protected speech (which may include expressive conduct) that is protected by the first amendment: – Political speech, expression of ideas alone (HIGHEST LEVEL OF PROTECTION) – Commercial speech: advertising (LOWER LEVEL OF PROTECTION – must tell the truth) • Unprotected speech – obscenity, defamation, fighting words, speech calculated to provoke illegal action; speech that presents a clear and present danger 45 848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

What is Electronic Speech?

• Anything expressive communicated electronically • Display of text, images, video, digitized music on a computer • Internet domain names • Computer programs 45 848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Defining Obscene Speech

1. Would the average person, applying community standards, find that the speech appeals to prurient interests?

2. Does the speech depict sexual conduct in a clearly offensive way?

3. Does the work lack serious artistic, political or scientific value?

Miller v. California,

413 U.S. 15 (1973) Indecent speech is protected; obscene speech is not Government may regulate indecent speech in broadcast media (radio, TV) 45 848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Communications Decency Act (CDA) of 1996

• Congress attempted to prevent obscene and indecent materials from reaching minors on the Internet: • “Whoever … in interstate or foreign communications … by means of a telecommunications device knowingly … makes, creates, or solicits, and initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication; shall be fined … or imprisoned not more than two years, or both.” • Also forbids “patently offensive” display of “sexual or excretory activities or organs” • Responsibility of web hosts to insure such materials were not accessible to minors 45 848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Reno v. ACLU

• First U.S. Supreme Court case to address freedom of speech and the Internet • ACLU (American Civil Liberties Union) and others sued Janet Reno, Attorney General, to prevent indictments under the CDA • Would violate free speech because it punished posting protected indecent speech as well as unprotected, obscene speech.

• District Court and 3 rd Circuit held for ACLU • Reno appealed to the Supreme Court • Held, the CDA's "indecent transmission" and "patently offensive display" provisions abridge freedom of speech • Internet is the “most participatory form of mass speech yet developed” • Not feasible to perform age verification

Reno v. ACLU

Rest of CDA Still Valid

• Reno v. ACLU did not strike down all of the CDA • Prohibition against transmission of obscene and indecent materials with the intent to harass; • Immunity provision for ISPs for material posted on websites 45 848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Rest of CDA Still Valid

• “Good Samaritan” blocking and screening protection: • “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” • “No provider or user of an interactive computer service shall be held liable on account of – – (a) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or – (b) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1). 47 U.S.C. 230 45 848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

ACLU v. Ashcroft

• After Reno v. ACLU, Congress tried to fix the CDA. It passed the Child Online Protection Act (COPA), 47 U.S.C. 231 • COPA makes it a crime for anyone who “knowingly and with knowledge of the character of the material, in interstate or foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any material that is harmful to minors.” • ACLU and others sued John Ashcroft, Attorney General, to prevent indictments under COPA • Would violate free speech because it applies children’s standard to adults, reducing all web content to a child’s level • Applied strict scrutiny (since based on content) and found that the remedy was not “narrowly tailored” to prevent the harm

ACLU v. Ashcroft

Zeran v. America Online, Inc.

• Anonymous user posted Zeran’s name and home phone number on AOL associated with offensive products relating to the 1995 Oklahoma City bombing • AOL refused to take down the postings; Zeran sued for defamation • AOL’s acts occurred in 1995 • CDA became effective February 8, 1996 • Zeran sued on April 23, 1996 • Held, AOL is immune under the ISP provision of the CDA, even though it knew of Zeran’s claim of defamation • “Congress' desire to promote unfettered speech on the Internet must supersede conflicting [state] causes of action.”

Zeran v. America Online, Inc.

Defamation

• A false statement made by the defendant about a person (plaintiff) • Communicated to at least one other person • Made intentionally, or with reckless disregard for the truth • That causes damage to the plaintiff’s reputation • (Libel is defamation in a permanent or widespread medium; slander is spoken defamation) • Publishers (creators of material) are liable; generally distributors are not liable 45 848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Defamation on the Internet

• Statements made in chat rooms • Information posted on a web site • Email messages and listservs • Defamatory information in an accessible database • Bulletin Board postings 45 848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

In the Matter of Moshe D.

• Court of Cassation, Rome, Italy (Dec. 27. 2000) • Moshe D. was libeled by a statement on a website outside Italy • Magistrate forbade prosecution: (1) offense not committed in Italy; (2) sequestration of the server would affect other sites • Reversed on appeal. Prosecution may proceed.

• Court must “assess the nature of the offense of libel as perpetrated through that new medium of … the Internet” • “The offense is … perpetrated not upon publication of the injurious statement, but when the same is perceived by subjects one may consider “third parties” in relation to both the sender and the injured party” • Conclusion: libel is an offense anywhere the statement is perceived 45 848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Domain Names

• Defamatory use of another’s domain name may result in liability.

– Limited by first amendment protection for criticism and commentary – In commercial context about a company’s products may be “product disparagement” similar to defamation 45 848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Bally Total Fitness Holding Corp. v. Faber

29 F.Supp. 1161 (C.D. Cal. 1998) • Bally operates a chain of health clubs • Faber created a website called “Bally Sucks”: www.compupix.com/ballysucks that included the Bally trademark and the words “Sucks” across it together with depictions of gay men • Bally sued for trademark infringement, trademark dilution and unfair competition • Held, function of trademarks is not to prevent criticism, but is protected speech • Note: saying “Bally Sucks” is not defamation since it is opinion, not a factual statement • “ sucks ” sites are very popular 45 848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Computer Programs as Speech

• Are computer programs speech?

• Are they expressive?

• What about a program whose only function is to display an illegally obscene image?

• Computer programs are also functional (do things) • Computer software – restrictions on encryption exports – restrictions on using software to circumvent copyright protection devices.

Junger v. Daley

• • • • • • • • Peter Junger was a professor of law at Case Western. Wanted to post encryption code on his website Posting is considered an export since anyone outside the U.S. can access it License was required from the Customs Service to export encryption, part of the Commerce Department. William Daley was the Secretary of Commerce Junger sued Daley claiming the export regulations were unconstitutional District Court upheld the regulations. Daley appealed.

Supreme Court said: “all ideas having even the slightest redeeming social importance,” including those concerning “the advancement of truth, science, morality, and arts” have the full protection of the First Amendment. This includes computer programs.

This includes “symbolic conduct, such as draft-card burning, that has both functional and expressive features.” Appeals court instructed the District Court to reconsider the case.

Junger v. Daley

Circumvention Devices

• The Digital Millennium Copyright Act (DMCA) makes it illegal to “manufacture, import, offer to the public, provide, or otherwise traffic in any technology, product, service, device, component, or part thereof, that - is primarily designed or produced for the purpose of circumventing a technological measure that effectively controls access to a [copyrighted] work.” 17 U.S.C. 1201 • Exceptions for reverse engineering, encryption research, security testing, etc.

The DeCSS Case

Universal City Studios v. Reimerdes

, 111 F.Supp.2d 294 (S.D.N.Y 2000) • CSS is a technology that encrypts DVDs • Jon Johansen, a Norwegian teenager, cracked CSS, producing DeCSS, a short program for decrypting DVDs • Corley, a NY journalist who writes for 2600.com, “The Hacker Quarterly,” posted DeCSS on his site • Numerous movie studio plaintiffs sued Corley in Federal court in NY under the DMCA to force him to remove DeCSS. A preliminary injunction issued.

• He removed DeCSS but added links to other sites offering DeCSS • After trial, he was permanently enjoined from posting DeCSS or linking to sites that offered it.

Major Ideas

• Governmental bodies have regulatory (rulemaking) authority • Speech isn’t really free, but is subject to numerous exceptions • ISPs have distributor immunity for defamatory material (unless they are the publisher) • Trademark law cannot be used to prevent comment or criticism • Computer programs have both expressive (speech) and functional elements • Whether programs can be regulated depends on what they do, not what they say 45 848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Regulation of Employee Speech

• Distinguish between private and public employers; • Private employer policies to protect employees from harassment, to insure company property is used for company business; • Anti-company web sites by disgruntled employees. 45 848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Public Employees

• Have greater speech rights because they are protected by the First Amendment • Employer still has right to reasonably limit employee use of computers and Internet to job-related activities.

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Urosky v. Gilmore

International Content Regulation

• Other countries are not limited by the First Amendment in regulating the Internet • Content regulation in Australia, China, Saudi Arabia; • European countries outlaw hate speech; 45 848 ECOMMERCE LEGAL ENVIRONMENT SPRING 2004 COPYRIGHT © 2004 MICHAEL I. SHAMOS

Electronic Speech - Carnegie Mellon University

Transcript Electronic Speech - Carnegie Mellon University

Lecture 3: Electronic Speech

Outline

Freedom of Speech

Is All Speech Free? NO

Supreme Court Tests for Speech Restraint

Is All Speech Free?

Traditional Categories of Speech

What is Electronic Speech?

Defining Obscene Speech

Communications Decency Act (CDA) of 1996

Reno v. ACLU

Rest of CDA Still Valid

Rest of CDA Still Valid

ACLU v. Ashcroft

Zeran v. America Online, Inc.

Defamation

Defamation on the Internet

In the Matter of Moshe D.

Domain Names

Bally Total Fitness Holding Corp. v. Faber

Computer Programs as Speech

Junger v. Daley

Circumvention Devices

The DeCSS Case

Major Ideas

Regulation of Employee Speech

Public Employees

International Content Regulation

Directory