Place Regulations
on the Internet
Burning the Global Village
to Roast the Pig
John S. Gossett and Tami Sutcliffe
University of North Texas
http://www.informationart.org/symbolic.html
“Any content-based regulation
of the Internet,
no matter how benign the purpose,
could burn the global village to roast the pig.
The Internet is a far more
speech-enhancing medium than
print, the village green, or the mails ”
(opinion by Judge Stewart Dalzell, United States District Court for the Eastern District of Pennsylvania in ACLU v. Reno,
929 F. Supp. 824 (E.D.Pa. 1996).
What are time, place and manner regulations?
• content-neutral justifications for restricting free
speech in government-owned spaces
–subject to over-breadth challenges
–subject to"compatible use" tests:
•Is the activity suitable for the physical location?
•Will the tangible limits of a given space work efficiently with a
particular activity?
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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What is Public Forum Doctrine?
• How time, place and manner regulations
have been historically applied to free speech
issues in government-owned spaces
–measurable physical characteristics (Davis v. Massachusetts, 167 U.S. 43).
– legal jurisdiction determined by physical location
–includes spatial tactics, spatial neutrality and spatial
tailoring (Zick, 2006)
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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Where are time, place and manner regulations
enforced?
Government-owned space includes three tiers:
• Non-public forums: heavily regulated, with states
exercising control.
[prisons, military bases, polling places, a school district's internal mail system, airport terminals]
• Limited public forums: Regulated based on the
nature of the physical property itself
[university meeting facilities, municipal theaters, school board meeting rooms.]
• Traditional public forums:
[publicly accessible locations such as streets, sidewalks, parks]
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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When are place restrictions constitutionally
valid?
1. Serves an important governmental interest
2. Government interest is unrelated to the suppression of
a particular message
3. Narrowly tailored to serve the government's interest
4. Leaves open ample alternative means for
communicating this message
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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So, what is the Internet?
• “An international network of interconnected
computers” (Reno v. ACLU, 521 U.S. 844 [1997])
• “A unique and wholly new medium of worldwide
human communication" (ibid)
• An international hardware network of
interconnected computers not limited to a single
physical or tangible entity
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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FYI: TECHNICAL ISSUE:
How is the Web different from the Internet?
The Internet:
The World Wide Web
international
hardware network
interconnected
older than the Web
tied to physical place
nonspatial
ever-shifting
navigational software
less directly related to
geographical location
Physically removing a networked computer from a library
building is a form of place restriction, as is filtering a list of
words from a library search engine
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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What type of public forum is the Internet?
• The physical location of any given Web
server on the Internet is usually irrelevant to
the messages being communicated.
• The data does not stay in one place, nor can
it be identified by either its source nor its
destination. (Franda, 2001).
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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MORE Reasons the Internet
is a problematic forum
• Jurisdiction online is currently based on the
physical place the server resides.
– Even if the content is illegal in some countries,
no laws can be enforced on the server itself.
•Internet Service Providers are not the equivalent of
publishers in the physical world.
–Publishers actually do know everything they
publish while ISPs cannot.
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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Can place realistically be used
to regulate Internet expression?
• Since 2002, twenty five states have passed
or are considering passing Internet
censorship laws (ACLU 2006)
• But traditional vocabularies of physical
place fail to describe the Internet, so how
will these laws ever be viable?
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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Can place realistically be used
to regulate Internet expression?
Obviously, governments and the private sector
must come to an agreement on international
legal standards for the free flow of
information and privacy (Weitzner, 2006.).
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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Place restrictions applied to online communication
Restriction Type I: governmental agency limits the
way an individual may use the Internet in a public
setting.
Restriction Type II: public school limits the way a
student may use the Internet in a private setting.
Restriction Type III: governmental agency censors
the entire contents of an Internet-wide provider in a
public setting.
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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Examples of traditional place restrictions applied to online communication
Restriction Type I: governmental agency limiting
the way an individual may use the Internet in a
public setting.
EXAMPLE: The Children's Internet Protection Act (CIPA)
requires libraries and schools to install filters on their
Internet computers to retain federal funding. The filters
remove materials determined by the commercial vendors
who produce the filters. There is no organized oversight of
the filter content selection process.
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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Examples of traditional place restrictions applied to online communication
Restriction Type I: governmental agency limiting
the way an individual may use the Internet in a
public setting
--from IamBigBrothers web site:
"IamBigBrother Records everything secretly.
As with all of our monitoring software, IamBigBrother
runs in total secrecy, and is very hard to find.
IamBigBrother will not slow down your computer, or
do anything noticeable to the user.”
History of U.S. online speech regulation in libraries:
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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Examples of traditional place restrictions applied to online communication
Restriction Type II: public school limits the way a
student may use the Internet in a private setting.
EXAMPLE: Eighth-grade student Jessica Schoch was not
allowed to attend school or participate in extracurricular
activities after school officials discovered a MySpace.com
profile she created at home on her own time that parodied a
school administrator.
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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Examples of traditional place restrictions applied to online communication
Restriction Type II: public
school limits the way a student
may use the Internet in a
private setting.
Free speech issues related to
students:
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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Examples of traditional place restrictions applied to online communication
Restriction Type III: governmental agency censors
the entire contents of an Internet-wide provider in a
public setting.
EXAMPLE:In July of 2006, India's Department of
Telecommunications instructed Internet service providers
to block access to the three largest blogging domains
including blogspot.com, typepad.com, and geocities.com.
and refused to provide any explanations for the blockade.
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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Examples of traditional place restrictions applied to online communication
Restriction Type III: governmental agency censors the
entire contents of an Internet-wide provider in a
public setting.
•Google's capitulation to the Chinese
government's demands to ban certain
kinds of online content.
• Department of Justice subpoenas of
search data from Microsoft, Yahoo and
Google.
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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3 important debates:
Is human behavior really different online?
Can we define speech vs action?
Is there really a "pornography problem" online?
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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Is human behavior really
different online?
NO
YES
“Cyberspace is not much
different than any other form
of human communication and
existing systems of law
should be able to deal with
online conflicts fairly well.”
(Goldsmith, 1998).
•International nature of the network
and the anarchic/transient
characteristics of law breaking
allow speed & anonymity
•Internet tends to complement
rather than displace existing media
(Robinson, 2003).
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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Speech or action?
• Online communication smudges some
divisions between speech and conduct
(sometimes considered "non-speech").
• Posting files, sending emails and
responding in online discussions are acts.
• Writing a blog and designing a web page
are perhaps more purely speech alone.
• When should these activities be censored?
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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Is there really a
"pornography problem" online?
• Cyber-sex Scare of 1995.
– Time and Newsweek cover stories related to
Carnegie Mellon study on pornography use online
–Media-induced hysteria over online child
pornography was largely unfounded
–The incidence of pornographic imagery
appearing online probably reflects the incidence of
such materials appearing in society as a whole
(Hamilton, 1999).
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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So what to do?
• Context of the message and not the
technological characteristics should be the
central criteria in deciding First Amendment
protection.
• The Internet is often described as a common
enterprise community so self regulation will
be most effective
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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Cohen v California (1971)
• "Unwelcome views and ideas cannot be
totally banned from the public dialogue"
• Discussions of harm versus offensiveness
must always consider the chilling effect of
online censorship (403. U.S. 15).
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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Guidelines
• Is the audience captive?
• Is the message likely to cause a breach of
the peace?
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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Final Questions
• Can the state ever forbid the use of certain words,
even in "the public good"?
• While filtering may be encouraged in the privacy
of a home, should filtering without oversight be
enforced by law in public settings such as
libraries?
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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END NOTE:
Greetings from the world of
Radical Militant Librarians
FBI documents from
2003 reveal a series of emails in which FBI
agents complain about
"radical, militant
librarians" interfering
with the use of secret
warrants authorized
under Section 215 of the
USA PATRIOT Act.
-- Electronic Privacy Information Center (EPIC)
Freedom of Information Act (FOIA) request 2003
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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“In recognition of the
efforts of librarians to help
raise awareness of the
overreaching aspects of
the USA PATRIOT Act,
the American Library
Association Office for
Intellectual Freedom is
offering librarians an
opportunity to proudly
proclaim their "radical"
and "militant" support for
intellectual freedom,
privacy, and civil
liberties.”
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007
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