Transcript Document

Free Speech and Content
Controls in Cyberspace
Part 1
CS 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
 Time, place, manner restrictions
•
“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.”
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)
b)
c)
d)
Making someone cold.
Cooling food or drink in the fridge.
Sitting around doing nothing.
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 test
a) “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. ACLU
Supreme 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 Association
Supreme 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.