Free Speech & Cyberspace:
part 3
Inciteful speech, hate speech, threatening speech
Anonymous speech, Student & Employee Speech,
Video Games as Speech
Commercial Speech & Spam
Foundations of Free Speech
• Careful reading of pp. 244-249
• Look thru the list of the kinds of speech
people have wanted to control or suppress:
meanings, protection or no & reasoning. (Not
all of these are protected)
Speech that Incites
• Incite: to encourage, bring about, to move to
action
• Kinds:
– True Threats: http://www.firstamendmentcenter.org/n-y-judgeaggravated-harassment-law-%e2%80%98cries-out-to-bereworked%e2%80%99
– Fighting words: intentionally directed at a listener
with malice to cause listener to immediately
retaliate. Their utterance inflicts injury and an
immediate breach of peace
Old Standard:
• (1919) p. 247-9Clear and present danger rule
from Schenck v. US
– "The most stringent protection of free speech
would not protect a man in falsely shouting fire in
a theatre and causing a panic."
– “The question in every case is whether the words
used are used in such circumstances and are of
such a nature as to create a clear and present
danger that they will bring about the substantive
evils that Congress has a right to prevent.”
New Standard:
• Current test for speech that incites:
– (1969) imminent lawless action test from
Brandenburg v. Ohio
• Intent, imminence, likelihood
• “These later decisions have fashioned the principle that
the constitutional guarantees of free speech and free
press do not permit a State to forbid or proscribe
advocacy of the use of force or of law violation except
where such advocacy is directed to inciting or
producing imminent lawless action and is likely to incite
or produce such action.”
Discussion Examples
• Lady threatens cop
–
http://www.firstamendmentcenter.org/her-cop-cussing-ruled-fighting-words-not-free-speech
• Threatening presidential candidate Obama on yahoo message
board:
– http://www.time.com/time/nation/article/0,8599,2084921,00.html
• Terry Jones the Koran burning preacher
• F* the Draft jacket: Cohen v. California,
http://www.firstamendmentcenter.org/40-years-ago-a-ruling-that-still-rings-today
• Tweets that threaten as free speech: 8,000 “troublesome” tweets
at Alyce
– http://venturebeat.com/2011/12/16/tweets-online-stalking/
• Flash mobs:
– http://www.usatoday.com/news/nation/2011-08-18-flash-mobs-police_n.htm
Harassment & Bullying Issues
1. As Bullies Go Digital, Parents Play Catch-Up
http://nyti.ms/hSQbkF
2. There’s Only One Way to Stop a Bully
http://nyti.ms/9Yu0pY
Misc. Free Speech & Tech. Issues:
Wikileaks, pp. 241-243
• Class discussion / overview
• Julian Assange
– Self-described
hacker/journalist; editor in
chief of Wikileaks
– Currently fight extradition
from UK to Sweden for
prosecution of possible sex
crimes
• PFC Bradley Manning
– Held w/ during pre-trial
motions for trial in military
court
• UCMJ Sections 92 & 134
Assange on the Colbert Report
CURRENT:
http://www.reuters.com/
article/2012/11/10/ususa-wikileaks-manningidUSBRE8A901O2012111
0
Hate Speech
• Hate Speech: speech that disparages a group based
on a characteristic
• In the United States, hate speech may be protected under
the First Amendment.
– Only hate speech that meets the imminent lawless action
standard (likely to incite immediate violence, or a threat) is
unprotected speech.
– Planned Parenthood v. American Coalition of Life Activists (ACLA)
» Nuremberg Files, abortion providers website.
• In France and Germany, hate speech is illegal.
– The use of US servers to bypass regulations.
More on Threatening Speech:
The Jake Baker case
Class discussion: case study materials
Other resources for the Jake Baker case:
1. Timeline of US v. Baker at wikipedia
2. Entry for Jake Baker at wikipedia
• Archived resources:
– http://www.mit.edu/activities/safe/safe/cases/umichbaker-story/Baker/Jake_Baker.html
Resolution of the Baker case
• Charge against him for story about named
classmate dropped.
• The case against him (5 counts) for violating 18
USC 875 dismissed
– Exchange of emails with Gonda detailing fantasy/plans
for rape, torture murders
– Was found that it was not a credible or “ true threat”
– Was determined Baker was within 1st amendment
writes to compose his “story/fantasy emails” since the
stories were not a true threat
Misc. Free Speech Issue:
Students’ right to free speech
• “Faked” profiles
– Mix of rulings in school administrator cases
• Fake MySpace profile for a Texas principal Draker v. Schreibner
• Facebook parody profile of principal Trosch by high school student
Layshock v. Hermitage School District
• 14 y o middle school student created fake MySpace J.S. v. Blue
Mountain School
– Application of Tinker v. Des Moines (1969 US S. Ct.
case). Black armbands & school ban
• Opinion piece:
– Sophomoric free speech, http://usat.me?39347532
Misc. Free Speech Issue:
Employee’s right to free speech
Workplace rants on social media are headache for companies
The Teacher Cases:
• PA teacher suspended (with pay??!!) for calling her
students “lazy whiners” http://usat.me?43808478
• NJ 1st grade teacher says she “felt like a warden
overseeing future criminals”
Employee examples:
• Policies barring Eee from depicting companies “in any
way” on social media sites
http://tinyurl.com/3bngqhb
– EMT fired b/c crit. she posted on fb, “a 17”:
• Federal right to form/discuss unions & working conditions
http://nyti.ms/djca6U
Misc. Free Speech Issue:
Anonymous Speech
• Anonymous publishing as a First Amendment
right
– McIntyre v. Ohio Elections Commission US S. Ct 1995
– http://gilc.org/speech/anonymous/
• Online speech, accomplished using remailers
– A series of servers that strip our identifying info &
sub in anonymous code or random numbers.
(chained remailing)
Does the First Amendment give you the
right to speak anonymously online?
• Yes, but you do not have the right to speak
falsely & injuriously. Melvin v. Doe
• Defamation example below:
Can you sue Twitter & Facebook
over a member’s defamatory
comments?
See § 230 of the Federal
Communications Decency Act
http://www.eff.org/issues/bloggers/legal/liability/230
Private Censorship and First Amendment
(pp. 260-262)
• My ISP removed my post.
Have my First Amendment
rights been violated?
• The forum moderator
edited/removed my
comments. Have my First
Amendment rights been
violated?
• First Amendment
interpretations:
– Negative interpretation
– Affirmative interpretation
1.
2.
3.
4.
5.
Public forum doctrine
State Action Doctrine
Fairness Doctrine
Must carry doctrine
Common Carriage
Doctrine
Misc. Free Speech & Technology
Issues: Video Games
• See Case 7.6 pp. 249-50
• Does a state law that restricts the sale or rental of violent
video games to minors comport with the First Amendment?
– 2001 7th Circuit decision American Amusement Machine
Assn v. Kendrick
• Indianapolis ordinance limited access to minors of games depicting
violence by requiring owners of facilities w/ 5 or more game
machines to have a separate area w/ parent or guardian
accompaniment.
• Ordinance found to violate 1st Amendment.
– Brown v. Entertainment Merchants US S Ct 2011
• 2005 California law, section I of the opinion
• Note how the language tracks the Miller test for obscenity.
Brown v. Entertainment Merchants
US S Ct 2011
• “… video games qualify for First Amendment
protection.”
– Why? Games communicate ideas & social messages using
plot, characters, music
• “Esthetic and moral judgments … are for individuals …
not governments” US v. Playboy Entertainment US S Ct 2000
• “And whatever the challenges of applying the
Constitution to ever-advancing technology, ‘the basic
principles of freedom of speech and the press, like the
First Amendment’s command, do not vary’ when a new
and different medium for communication appears.”
Burstyn v. Wilson US S Ct 1952
Brown cont’d
• “The most basic of those principles is this: ‘[A]s a
general matter, . . . government has no power to
restrict expression because of its message, its ideas, its
subject matter, or its content.’” Ashcroft v. American Civil Liberties Union
US S Ct 2002
• Scalia lists the only acceptable areas for gov’t to
restrict content of speech: obscenity, incitement, &
fighting words.
• Scalia says last term’s holding in Stevens precludes
adding other categories that legislatures deem to
harmful.
– US v. Stevens: http://en.wikipedia.org/wiki/United_States_v._Stevens
• No new categories by virtue of a “simple balancing test”
Brown cont’d
• CA law is trying to shoehorn in by looking like
it’s a permissible obscenity statute.
– “Violence is not a part of the obscenity that the
Constitution permits to be regulated.”
• Obscenity is only concerned about depictions of sexual
conduct.
• Distinguishing Ginsberg
A New Category for Governmental
Regulation of Speech?
• No, there will be no new category of contentbased restrictions directed at children.
– Court notes that there has been no historic
(successful) prohibition of violence in stories
directed at children.
• Fairy tales, high school reading lists
• Comic books
• Interactive argument?
– Choose Your Own Adventure
– Judge Posner (all literature as interactive)
Content Regulations holding
• Content regulations subjected to strict scrutiny
– Compelling gov’t interest
– Narrowly tailored
• Ct says California does not meet its burden show
direct causal link between violent games and
harm to minors.
– Lasting measurable effects? no
– About the same as tv viewing of violence, other
violence
Misc. Free Speech & Technology Issues:
Commercial Speech
• Central Hudson v. Public Service Commn.
(1997)
– Government regulation does not violate 1st
Amendment if:
•
•
•
the speech concerns an illegal activity
The speech is misleading OR
The government’s interest is substantial, the
regulation advances the interest and is narrowly
tailored.
Pre-spam Law
• Traditional mailings:
– Rowan v. US Post Office “vendor has no
constitutional right to send unwanted material to
someone’s home” (1970)
• Faxes:
– Telephone Consumer Protection Act: deals with
unsolicited faxes (1991)
Email & Spam
• Spam statistics:
– https://www.trustwave.com/support/labs/spam_s
tatistics.asp
– http://royal.pingdom.com/2011/01/19/emailspam-statistics/
• Spam: unwanted/unsolicited email
– YouTube - Monty Python - Spam
– Hormel’s position
– The first spam message (1994)
Why so much spam?
• Effective $ per $ form of advertising
– Ex. For $500-2k reach a million people compared to
$230k for bulk mail costs
– NY Times article says est. to break even is a 1 in 100k
response
• WSJ July 2009 article cites 800 person survey:
– One out of Six Responded to Spam
• July 2009 MAAWG study:
– 12% of e-mail users have actually tried to buy stuff
from spam
Early Spam Case:
Cyber Promotions v. AOL (1996)
• Facts: AOL’s servers swamped by spam; installed
blockers. Cyber sued AOL. AOL countersued
Cyber to recover costs of dealing with the spam.
• Issue: whether Cyber has a 1st Amendment right
to send the email.
• Holding: AOL is not a state entity and as such is
not subject to First Amendment challenges. Cyber
has no 1st Amendment right to send unsolicited
email to AOL members. $ to AOL.
CAN SPAM Act of 2003
• Controlling the Assault of Non-Solicited
Pornography And Marketing Act of 2003
• Went into effect in 2004
• Impacts emails sent by businesses
– 3 categories: transactional & relationship,
commercial with mailing list consent, unsolicited
– ↑ requirements for those not between people
with a transactional relationship.
CAN SPAM cont’d
• Penalties: $250/mg up to $2m; criminal
penalties for hackers & those who falsify
headers
• Weakness:
– opt out problems
– Makes sending spam legal if you meet the
guidelines
– Unenforceable
– Largely unenforced
Highlights of CAN SPAM
• Trx & relationship category messages:
– Must include correct header info & must not
disguise the ID of the computer sending message
• Commercial
– Above + mechanism to unsubscribe + postal
address contact
• Unsolicited
– Above + “clear & conspicuous” notice that it’s an
advertisement
A few more SPAM cases
• http://www.msnbc.msn.com/id/26676107/
VA case striking down VA law.
• http://www.techdirt.com/articles/20081124/1
616292938.shtml Facebook Wins Nearly $1
Billion From Spammer Who Will Never Pay Up
• Man pleads not guilty to running vast spam
network http://usat.me?41498420
• E-Mail Spam Falls After Russian Crackdown
1/5 down http://nyti.ms/cEsPHi
Regulating
• Spam –who/what can stop it
– The marketplace
– Government
– Potential for political censorship (p. 254)
– Bottom-up approach – shifting control from the state
to the individual to filter
• Lessig fears that a school or workplace will use their
standards on unsuspecting users
• See page 253 (filtering)
• The question: Should control of the Internet be in
the hands of private parties or should it be a topdown approach?
34
Misc. Free Speech Issue:
Net Neutrality pp. 263-4
• What does that term mean?
• Controversy in America
• Divided FCC adopts rules to protect Web traffic
http://usat.me?41894204
Misc. Free Speech & Technology
Issues: Blogs
• “Congress shall make no law . . . abridging the
freedom of speech, or of the press . . .”
• Are bloggers journalists? Do they deserve the
protection offered to journalists?
– Ex. Unreleased Apple product, Ct ruling
• http://www.jstor.org/stable/40239667