Transcript Document
Free Speech: Obscenity and Regulation of
Indecent Speech
Chapter 7, Part 1 – CS 340
THINK ABOUT:
• How are current free speech laws interpreted
when we apply them to recent methods of
expression?
• In what ways are these free speech laws
insufficient for our new forms of expression?
• What types of speech are generally not protected
by previously established laws?
Ethics in a Computing Culture
1
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 means ease of doing harm
– And restricting publication can be synonymous
with restricting speech.
• US S. Ct. in Reno v. ACLU about the power of
the Internet:
– Anyone can become “a pamphleteer, … a town crier
with a voice that resonates farther than it could from
any soapbox.”
Three Important Questions:
• Is speech just spoken or written words?
• Are these rights and guarantees of the
First Amendment absolute?
• From whom does the First Amendment
give you protection?
• See Madison’s versions
• How does the 14th Amendment relate?
Fourteenth (14th) Amendment of
the US Constitution
Section 1.
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.
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
Defining Obscenity
• Standard is the 1973 Miller test, p. 257 in text
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 moved away from the previous std for
obscenity - “I know it when I see it.” Justice
Stewart’s test.
• Miller has a “community” standard
• 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
Regulating Indecent Speech:
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.”
•
The Carlin case showed the government
could restrict indecent material – that
the material did not have to rise to
obscenity.
Content Regulation in Broadcasts
• 1978-1987: In deciding whether content is
prohibited, look for whether it is a repetitive
occurrence or an isolated instance for whether it
was an actionable offense.
• In 2001, FCC issued a regulation with penalties on
nudity and profanity for broadcasts 6 am to 10
pm.
– 3 factor approach (pandering as one)
– Janet Jackson & Justin Timberlake wardrobe
malfunction, CBS $550 million fine.
• In 2004 , with the Golden Globes Order this regulation
was extended to “Fleeting expletives”
Content Reg. (cont’d)
• A 2010 ruling in the 2nd Circuit states 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…”
• Also its vagueness was found to violate 5th amendment
due process.
– Appealed, cert. granted, June 2012 decision
in FCC v. Fox
What is Chilling?
a) Cooling food or drink in the fridge.
b) Sitting around doing nothing.
c) A situation where speech or conduct
is suppressed by fear.
d) All of the above
FCC v. Fox Television Stations
U.S. Supreme Court (2012)
• Facts & lower court holdings:
– Fleeting Expletives cases: F bombs with Cher, Richie &
Bono at award shows; F word held as actionably indecent
no matter context/repetition. Golden Globes rule postdated these utterances.
– NYPD Blue nudity: patently offensive by contemporary
standards; compare to Schindler’s
• Issues: Did the FCC give sufficient prior notice or were
the FCC regulations unconstitutionally vague?
• Held: insufficient notice; Ct. does not address 1st
Amendment concerns.
Chilling of Speech:
Justice Bork and the V.P.P.A.
• Justice Robert Bork was
an unsuccessful Reagan
nominee for S. Ct.
– http://epic.org/privacy/vppa/
• Jan. 10, 2013 update to
VPPA to allow consumers
to share rental history on
social media
– http://www.metrocorpcounsel.com/arti
cles/22197/ftc-updates-online-privacyacts-coppa-and-vppa
– http://money.cnn.com/2013/01/10/tec
hnology/social/netflix-vppa-facebook/
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.