Free Speech & The Internet
Prepared For:
First Amendment Lawyers Association
Winter Meeting, 2009
By: Lawrence G. Walters, Esq.
Weston, Garrou, Walters & Mooney
www.FirstAmendment.com
Introduction
The adult
Internet
community
breathes a
collective sigh of
relief at the
recent
Inauguration of
President Barack
Obama.
Criminal Case Developments
Mukasey v. ACLU, Case No.: 08-565 (January 21, 2009)
COPA Ends its Epic Journey Through the Courts
The Supreme Court denies certiorari, affirming the
Third Circuit’s decision striking down COPA on First
Amendment grounds of:
Overbreadth; and
Failure to satisfy strict scrutiny.
COPA passed Congress in 1998, was enjoined by the
District Court but resulted in two separate Supreme
Court decisions, Ashcroft I and Ashcroft II.
Congress limited the scope of COPA to commercial,
adult-oriented websites, but the 3rd Circuit ruled that
user filters were less restrictive than criminal penalties
on website operators.
COPA, continued…
Who should bear the burden of filtering and blocking
content?
3rd Circuit found that end user filtering is the least
restrictive alternative.
Web servers and browsers can help to facilitate
parental choice.
Congress will likely attempt to pass another
CDA/COPA-styled law.
U.S. v. Whorley, 2008 WL 5265645 (4thCir. December 18, 2008)
Fourth Circuit Rejects First Amendment Challenge to
Obscenity Statutes
Whorley was a VA state employee who was indicted on 75
counts for using his work computer to access anime
cartoons, emails, etc., containing pornographic images.
The charges were based on his receipt of cartoons featuring
prepubescent children, depictions of actual children, and text
based emails discussing incest and molestation.
Whorley challenged the constitutionality of his conviction
with the following:
18 U.S.C. § 1462 is facially unconstitutional as applied to
“receipt” of obscene materials as incidental to their
possession; the term “receives” is unconstitutionally vague;
the statute is unconstitutional when applied to text-only
emails; and
18 U.S.C. § 1466(a)(1) violates the First Amendment as
applied to cartoons not involving actual human beings.
U.S. v. Whorley, continued…
The 4th Circuit held that Stanley v. Georgia is strictly
limited to ability of person to possess obscene materials
in the privacy of their home, but does not extend to
the ability to “receive” such materials.
Practice Pointer: If the gov’t possesses any evidence of
how the Def. came to possess obscene materials, Stanley
does not provide a constitutional defense to obscenity
charges.
U.S. v. Stevens, 533 F.3d 218 (3d Cir. July 18, 2008)
Third Circuit Overturns Animal Cruelty Depiction Law
18 U.S.C. § 48 outlaws the depiction of animal cruelty,
not the actual act of cruelty (which is outlawed in all 50
states).
Here, Congress attempted to create an entirely new
category of unprotected speech. Ferber analysis does not
apply to depictions of animals.
The District Court invalidated the law on strict
scrutiny grounds.
The 3d Cir. held that the videos sold by Defendant
depicting cruelty were protected by the First
Amendment and that the gov’t. did not establish a
compelling state interest justifying the ban of a new
category of speech.
Wisconsin v. Jahnke, Slip Copy: 2008 WL 5397241 (Wisc.
App. December 30, 2008)
Conviction for Recording Girlfriend Sex Affirmed
Jahnke was convicted of a felony for recording sex with
his girlfriend without her knowledge or consent.
Jahnke challenged his conviction, arguing that his
girlfriend did not have a “reasonable expectation of
privacy” by consenting to have sex with him and
exposing her nude body to him. In other words, she
reasonably expected to be seen nude.
The Appellate Court rejected this argument, focusing
on whether the nude person had a “reasonable
expectation of privacy” that she would not be recorded
in the nude.
Wisconsin v. Jahnke, continued…
The majority struggled to distinguish this case from the
precedent established in State v. Nelson, which established a
4 element test:
The defendant recorded a person in the nude;
The recording is without the nude person’s knowledge and
consent;
The depicted person was in a circumstance in which he/she
had a “reasonable expectation of privacy;” and,
The defendant knew or had reason to know that the nude
person did not know of and did not consent to the recording.
Nelson focused on whether the subject was secluded from
the presence or view of others.
The Jahnke Court limited Nelson to its specific facts.
Wisconsin v. Jahnke, continued…
The dissent argued that the Court was bound by Nelson
and that Jahnke could not be found guilty of the felony
charge, but that a lesser charge of misdemeanor was
more appropriate.
The misdemeanor charge prohibits the secretly
recording of nudity in locations such as a locker room,
“where nudity is common, consensual and understood.”
The dissent observes that the majority is actually
overruling Nelson, but using different words to achieve
that result.
Tecklenburg v. Superior Court, Case No.: CO55368
(Cal.App.3d January 9, 2009)
Appeals Court Upholds “Cache” Child Porn Conviction
Defendant was arrested in 2004 upon the discovery of
files containing child pornography on his work
computer.
Defendant was convicted on 6 counts of knowing
possession or control of child porn, but he contended
on appeal that there was not sufficient evidence to
prove he knowingly possessed the materials.
Cached files deleted from a computer are not actually
erased from the hard drive but remain in unallocated
space until they are overwritten.
Tecklenburg v. Superior Court, continued…
The Court looked to a 9th Circuit case, U.S. v.
Kuchinski, to determine whether a defendant could be
convicted absent evidence of knowledge of files in a
computer cache.
In Kuchinski, the federal appellate court held that a
conviction was improper without evidence the
defendant had knowledge of the cache files.
The Tecklenburg court ultimately held that the CA
statute differed from the federal law and relied on a farreaching interpretation of legislative intent – that the
statute includes an image of child pornography that
can be displayed on a computer screen as an object that
may be knowingly possessed or controlled. Knowing
possession not required under the CA stat.
Jaynes v. Commonwealth, 666 S.E. 2d 303 (Va. September 12, 2008)
Virginia Supreme Court Reverses First SPAM conviction
Jaynes was the first person in the country to be convicted
of a felony for SPAM. Jaynes was sentenced to 9 years in
prison for sending up to 10 million unsolicited emails per
day.
The VA Supreme Court affirmed Jaynes’ conviction in
Feb 2008, but later agreed to reconsider the case on First
Amendment grounds.
The court unanimously agreed with Jaynes’ argument
that the law violates free speech protections because it
does not just restrict commercial emails – it prohibits the
transmission of all emails containing false routing
information. That’s the only way to stay anonymous
when sending emails, however.
Jaynes v. Commonwealth,
continued…
The Court unanimously agreed that the law is
unconstitutionally overbroad on its face because it prohibits
the anonymous transmission of all unsolicited bulk emails,
including those containing political, religious and other
protected speech.
The statute at issue is substantially overbroad, consistent with
the U.S. Supreme Court’s recent holding in U.S. v. Williams,
128 S.Ct. 1830 (2008).
Further, the Court rejected the State’s request to impose a
narrowing construction, limiting the scope of the
prohibitions to emails which involve criminal activity, are
obscene or defamatory.
Ohio v. Ellison, 2008 WL 4531860 (Ohio App. 1 Dist. October 10, 2008)
Ohio Appellate Court Reverses Harassment Conviction
The defendant, a high school student, posted a picture of a
former friend to her myspace page, including a comment
stating: “Molested a little boy.” After the subject
complained, the student was confronted by the school
resource office and deleted the content in question.
The defendant was later charged and convicted with
telecommunications harassment, a violation under R.C.
2917.21(B).
The defendant claimed she believed the allegations of
molestation and that “other people have a right to know.”
Ohio v. Ellison, continued…
On appeal, the Def. argued that her conviction was not
supported by sufficient evidence and violated her free speech
rights.
The appellate court found that the state failed to introduce
insufficient evidence of intent to harass, and avoided the First
Amendment issues.
Also, posting a message on a social networking page is not the
same as ‘sending’ the message to a specific recipient.
Concurring Opinion briefly addressed First Amendment issue:
posting a non-threatening comment on a website is not a crime
under the statute. Quote: “It is a scary thought that someone
could go to jail for posting a comment on the Internet. If so,
we could not build jails fast enough.”
U.S. v. Schales, 546 F.3d 965 (9th Cir. October 20, 2008
Ninth Circuit Upholds Child Obscenity Conviction
Defendant was charged with possession and receipt of
morphed images depicting children, prohibited by the
PROTECT Act.
The material in question featured images that were
created by cutting and pasting faces of local minors on
sexually explicit content.
The Court embraced the Supreme Court’s language in
U.S. v. Williams and Virginia v. Hicks, and ruled that
overbreadth challenges will be upheld only when laws
prohibit a substantial amount of protected expression.
Obscenity is not protected, thus no overbreadth.
The Ninth Circuit rejected Def’s ‘parade of horribles’
including paper-dolls, stick figures and wooden toys.
U.S. v. Schales, continued…
Def’s vagueness challenge was also rejected; the court held
that the statute was limited entirely to prohibition on
obscene materials, and obscenity statutes have repeated
withstood vagueness challenges.
The court interpreted the statute to mean that actual child
pornography was not necessary – depictions are enough.
It makes no difference if the images of minors are real,
so long as the gov’t proves the visual depictions were
obscene. (I.e., no Free Speech Coalition problem).
The court did agree with the Def’s double jeopardy
challenge, holding that “possession” is a lesser-included
offense of “receipt,” and remanded to reverse one of the
convictions. Note: No discussion of Stanley on the
possession conviction.
CDA Section 230 Immunity Case(s)
Doe v. SexSearch.com, 2008 WL 5396830 (6th. Cir. December 30, 2008)
Sixth Circuit Holds SexSearch.com Not Liable for Underage Sex
Remember the guy who had consensual sex with a minor he met
online who had falsely represented herself online?
He sued SexSearch.com for failing to verify the ages of its
members, and claiming that all members were adults.
SexSearch.com claimed Section 230 immunity: “[n]o provider or
user of an interactive computer service shall be treated as the
publisher or speaker of any information content provider.”
The District Court had previously held that SexSearch.com met
all of the requirements necessary to obtain immunity.
On appeal, the Sixth Circuit limited its affirmation of the lower
court decision not because of the CDA immunity, but on the
grounds of failure to state any viable cause of action.
Note: Good Section 230 decision diluted by this affirmance
Civil Litigation Impacting Adult
Entertainment
Flava Works, Inc. v. City of Miami, Case No.: 1:07-cv-22370-MGC (S.D. FL 2009)
Florida District Court Sides with Adult Website in Zoning Law
Challenge – Applies Voyeur Dorm Analysis
Plaintiff’s operate a webcam site, CocoDorm.com out of a Miami
residence. The City of Miami posted a notice of violation, alleging
operation of an adult business in a residential zone.
Plaintiffs sued the City of Miami seeking cert from the zoning
determination and asserting the following federal claims:
The permitting procedures for an adult entertainment establishment are
violative of the First & Fourteenth Amendments;
The City’s ordinance does not advance a legitimate gov’t interest, as the
City has failed to sufficiently assert secondary effects;
The City’s ordinance constitutes a regulatory taking;
The City’s ordinance is violative of Plaintiff’s Equal Protection rights;
The City’s ordinance is unconstitutionally overbroad; and,
The City’s ordinance violates the Dormant Commerce Clause.
Flava Works v. Miami,
continued…
Plaintiff’s argued that the case could be resolved by
interpreting the ordinance under state law and avoiding
constitutional claims, given the Voyeur Dorm case out of
Tampa, which reversed the district court decision that the
residence was, in fact, operating a business and violating
zoning ordinances.
Miami argued that Voyeur Dorm does not apply given the
difference in the two ordinances:
Tampa: “…on which is offered…”
Miami: “…which offers…”
Court: Both connote a brick and mortar business. They are
the functional equivalents of each other.
Flava Works v. Miami, continued…
The Court found that the “public offering” by the
Plaintiff “occurs…via cyberspace, and not in a
geographic location.” Thus, the adult ordinance
cannot be applied to the residential location.
Furthermore, the servers and accounting and financial
activities occurred at a different location, where the
corporation was licensed.
Good case for any attempt to apply an adult ordinance
to a web-based business.
Doe v. Mukasey, 2008 WL 5205951 (2d Cir. December 15, 2008)
Second Circuit Affirms Challenge to National Security Letters
Panel of the Second Circuit affirmed the district court’s findings
of First Amendment violations in 18 U.S.C. §§ 2709, 3511, the
National Security Letters (“NSL”) statutes.
However, the panel overruled the district court’s holdings that
the NSL statutes were per se unconstitutional as a prior
restraint. Instead they held the provisions were
unconstitutional as applied, and proceeded to reconstruct the
statutes to eliminate their unconstitutional scope.
The First & Fourth Amendment challenge to § 2709 concerned
the non disclosure provisions applying to recipients of NSL’s.
Court was required to accept the DOJ’s assertion of need for non
disclosure (absent bad faith).
Doe v. Mukasey, continued…
The court held that Congress violates the separation of powers
when it imposes a rule of decision upon the judiciary.
§ 3511 required the judiciary to defer to the judgments of the
Executive Branch officials, and imposed a standard of judicial
review.
The Second Circuit found that non disclosure provisions violate
the First Amendment’s strict scrutiny analysis, and impose a prior
restraint prohibited by Freedman, et seq.
The court restructured the statute to avoid future unconstitutional
impact:
A nondisclosure requirement is only necessary when officials
certify that the NSL relates to “an authorized investigation to
protect against international terrorism or clandestine intelligence
activities.”
IMEGA v. Wingate, Case No.: 2008-CA-002000-OA (Ky.App. January 20, 2009)
Court Blocks State’s Attempt to Seize 141 Online-Gaming Domains
The KY Court of Appeals (2-1 decision) imposed an order prohibiting
the Franklin Circuit Court from seizing 141 domains owned by
foreign Internet gambling businesses.
No sites were registered in Kentucky, and no registrants were
located in the state.
ACLU and EFF raised serious constitutional questions including
Free Speech and Commerce Clause concerns.
The Appellate Court ruled that the trial court lacked subject matter
jurisdiction, since the domain names were not classified as “gambling
devices.” Query whether this is an issue of subject matter jurisdiction?
Issues regarding the First Amendment and the Commerce Clause
were not addressed, but the trial court exempted advertising sites from
the purview of the seizure Order on commercial speech grounds.
The Commonwealth has filed an appeal with the KY Supreme Court.
State lawyers have threatened in personam actions to follow.
J.S. v. Blue Mountain School District, Slip Copy: 2008 WL 4279517 (M.D.
Pa. September 11, 2008)
PA Student’s Free Speech Lawsuit Dismissed on Summary Judgment
A middle school student was suspended for creating a fake MySpace
account featuring lewd comments about her principal, including that he
was a pedophile.
The student was suspended for making false statements to school
officials (denying creating the account) and using copyrighted
materials (the principal’s photo) without permission.
The student sued the School Dist. Claiming that the student was
improperly punished for off-campus, protected speech, arguing the
students rights under Tinker.
The Court found that Tinker was inapplicable and that the speech did not
make an political statement, but was an attack on the principal, likening it
to the lewd speech in Fraser instead.
The District Court also rejected J.S.’s argument that the school has no
power to punish her for material created off-campus.
Continuing weakening of students rights since Bong Hits 4 Jesus
Baude v. Heath, 538 F.3d 608 (7th Cir. August 7, 2008)
Seventh Circuit Upholds Face-to-Face Wine Regulations
Wine connoisseurs sued the IN Alcohol & Tobacco
Commissioner, challenging legislation limiting the manner of
direct sale to out of state consumers on Commerce Clause
grounds.
The law imposes additional licensing and tax requirements,
requires a face-to-face meeting for age verification, and prohibits
vintners from selling wholesale to instate retailers.
The Seventh Circuit held that the wholesale clause imposed a
needless and disproportionate burden upon interstate commerce.
The court upheld the face-to-face requirement in that it would
reduce the fraction of all wine shipments going to minors.
NOTE: Could this holding be imputed to adult entertainment
websites and their efforts to verify a user’s age. The lack of brick
and mortar locations could serve as a proper basis for distinction.
Quick Payday, Inc. v. Stork, 2008 WL 5192219 (10th Cir.
December 12, 2008)
Tenth Circuit Rejects Commerce Clause Challenge
The Tenth Circuit upheld a state regulation of online,
short-term payday loans over the Internet because the
regulation did not constitute a violation of the
Dormant Commerce Clause.
The law imposed a limit on fees charged, a bond requirement,
and mandated a free background check.
Specifically, the court did not find the existence of an
unreasonable burden on interstate commerce, as opposed to
state’s interest in protecting consumers from providing felons
with access to their financial data.
The inconsistencies in state laws regulating internet
businesses can be problematic as more statutes are passed.
Roe v. McClellan, Case No.: B203651 (Cal.App. 2 Dist. January 15, 2009)
CA Affirms R.O. on Self-Proclaimed Pedophile
McClellan is a self-proclaimed pedophile and runs 2
websites in which he posts photos of young girls, and advice
on finding them in public places. The Plaintiffs, 2 girls aged
13 and 12, filed a “Doe” injunction petition against
McClellan claiming they feared being surreptitiously
photographed by him in public.
The injunction sought to prevent McClellan’s websites from
posting images of them or other minors and prevent him
from frequenting places where young children are known to
congregate.
The trial court determined there was a credible threat of
imminent harm and issued the restraining order and a
broad permanent injunction.
Roe v. McClellan, continued…
On appeal, the court affirmed the lower court’s
decision, rejecting Def’s argument that the constraints
of the Order violated his rights of free speech.
The scope of the injunction is troublesome, in that it
applies to all minors, and dramatically prohibits the
Def’s ability to travel in public.
Citation to the speech ‘balancing test’ is also scary, but
the ultimate basis for the ruling (i.e., imminent harm)
limits the concern, from a First Amendment
standpoint.
Pilchesky v. Gatelli, et al., Civil Action 07-CV-1838
(Court of Common Please, Lackawanna County, PA October 1, 2008)
Court Renders Split Decision in Anonymous Speech Case
Gatelli filed a joinder complaint against Pilchesky and 98
John Does who were anonymous political message board
posters on the website Dohertydeceit.com.
Gatelli filed a Motion to Compel Disclosure of the John
Does.
The court, citing to Roth and Chaplinsky v. New Hampshire
(“fighting words”), determined that 6 of the anonymous
posters fell outside of First Amendment protection and
thus, were subject to having their identities disclosed.
These six had attributed “serious sexual misconduct” to
Gatelli.
The right to speak anonymously is not absolute.
The End.
“The Internet interprets censorship as damage and
routes around it.” - John Gilmore
“I believe in censorship. After all, I made a fortune
out of it.” - Mae West