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
, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

• 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.”

• 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 14 th Amendment relate?

Fourteenth (14 th ) 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.

• 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. “

• The First Amendment offers no protection or safe harbor for:
– Obscenity
– Defamation
– Speech that Incites

• 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.”

• 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

• 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

• (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”

• A 2010 ruling in the 2 nd 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 5 th amendment due process.
– Appealed, cert. granted, June 2012 decision in FCC v. Fox

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 1 st
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.”

• 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?

• 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.”

• 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.

• 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.

• 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 1 st amendment rights.

• 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.

• 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”

• 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

• 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?

• 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.