Chapter 5
Freedom of Speech in Cyberspace
First Amendment Rights
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.
5.1 Changing Communication Paradigms
We examine how the protection of the first Amendment to the U.S. Constitution
affects, and is affected by, computer systems and World Wide Web.
Regulatory Paradigms
- We can “publish” whatever we wish and be read by anyone who chooses
- Don’t need approval from anyone to speak your mind
- might guarantee freedom but guarantee is not certain
First Amendment should be applied to each new communications technology according to its spirit
and intention: to protect our freedom to say what we wish
Communication technologies were divided into three categories with respect to the degree of First
Amendment protection and government regulation:
1. Print media (Newspapers, books, magazines pamphlets
2. Broadcast (television and radio)
3. Common carriers (telephone, telegraph and the postal system).
Broadcasting licensees are select by the government and must meet government standards of merit,
a requirement that would not be tolerated for publishers because of the obvious threat to freedom of
expression.
- sexually oriented talk shows or to sensor them
- the government has more control over television and radio content before the Bill of Right
was written.
The first Amendment is a restriction on the power of government, not individual or private
businesses.
- Publishers are not required to publish material they consider offensive, poorly written etc..
- Rejection or editing by a publisher is not violation of a writer’s First Amendment rights.
5.2 Offensive Speech and Censorship in Cyberspace
What is there? What is illegal?
What is offensive speech? What should be prohibited or restricted by law in cyberspace?
- State of Georgia tried to ban pictures of marijuana from the internet
- Doctor argued for medical discussion on the Net so that people would not get bad advice
- Pornography, Playboy, read about sex or how to make bombs, make photo copies and send
them by mail without return address.
Obscene Speech
Miller vs. California
Case that established if material is obscene
1. Would the average person find that the work appeals to the prurient interest?
2. Does the work depict or describe in an offensive way, sexual conduct specifically defined by the
applicable state law?
3. Does the work lack serious literary, artistic, political, or scientific value?
P. 198 - Straining old Legal Standards
Communities have no physical locations
What was really illegal?
Obscene material is not protected by the First Amendment. The criteria are that:
(1) it depicts sexual (or excretory) acts whose depiction is specifically prohibited by state law,
(2) it depicts these acts in a patently offensive manner, appealing to prurient interest as judged
by a reasonable person using community standards and
(3) it has no serious literary, artistic, social political, or scientific value.
- The second point – the application of community standards – was compromise
intended to avoid the problem…
In 1996, Congress passed Child Pornography Prevention Act to extend ... to include “virtual”
Children,
5.2.2
Material Inappropriate for Children
How The Technology Changes The Context
Protecting the children
5.2.3 Censorship Laws
The community Decency Act
The Child on line protection Act
The children’s Internet Protection Act
5.2.4 Internet Access in Libraries and Schools
Problem with filters
Problem in the Libraries
The Loudoun, Virginia Library case and the Children’s on the Internet protection Act
5.2.5 Talking about Bombs – or Farming
5.2.6 Challenging Old Regulatory Paradigms and Special Interests
5.2.7 Censorship on The Global Net
The global Impact Censorship
Censorship In Other Nations
5.3 Anonymity
5.4 Spam
5.5 Ensuring Valuable and Diverse Content
Exercises