Lecture 3:
Electronic Speech
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Outline
• Regulatory powers
• Exactly what is “freedom of speech”?
• What is Electronic Speech?
• Obscenity
• Immunity for website operators
• Duty of takedown
• Export Control
• Circumvention devices
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Regulation
• Administrative agencies of the government have
“rulemaking” (regulatory) power
• Examples:
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SEC regulates securities offerings and markets
Dept. of Agriculture inspects meat
FAA issues airline safety regulations
Comptroller of the Currency regulates certain banks
Patent & Trademark Office issues patents
• Where do these powers fit into the legislative
scheme?
• Rules have the force of law (unless they are
inconsistent with statute)
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Federal Rulemaking
• In general, government agencies may prescribe rules
and regulations “not inconsistent with law” in
furtherance of their mission
• Example: setting time limits, fees, fines, procedures
– Must publish “notice of proposed rulemaking” in the Federal
Register
– Provide a period of public comment
– Possibly hold hearings
– Notify Congress
– “Interested persons” may petition for “issuance, amendment
or repeal” of a rule
– The rule becomes a “regulation having the effect of law”
without further approval
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Appeals From Agency Decisions
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Agencies are bound by their own rules
Must appeal within agency before going to court
Administrative Procedure Act, 5 U.S.C. §500ff:
Court shall “hold unlawful and set aside” actions that are:
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arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
contrary to constitutional right, power, privilege, or immunity;
in excess of statutory jurisdiction or authority;
without observance of procedure required by law;
unsupported by substantial evidence; or
unwarranted by the facts
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Freedom of Speech
• The First Amendment (1791): Congress shall make
no law….abridging the freedom of speech, or of the
press …
• Applies to federal government regulation of speech
• The “liberty of the press and of speech is within the
liberty safeguarded by the due process clause of the
14th Amendment from invasion by state action.”
Near v. Minnesota, 283 U.S. 697, 707 (1931).
• Applies to state government regulation of speech
• Neither applies to private rules or contracts, such as
terms of use of a website, or employer restrictions.
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Is All Speech Free? NO
• Speech that leads to actions
– Causing panic: Falsely yelling “Fire!” in a crowded theatre
– “Fighting words”
– Test: “clear and present danger” [of illegal action or injury]
• Defamatory matter: libel, slander
• False advertising, advertising dangerous products
– Gender designation in employment ads, Pittsburgh Press,
413 U.S. 376 (1973)
• Fraud
• Conspiracy, incitement to crime, solicitation
• Trade secrets
• Invasion of privacy
• Obscenity
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Supreme Court Tests
for Speech Restraint
STANDARD
WHEN APPLIED
GOV’T INTEREST
STATUTE MUST BE
STRICT
SCRUTINY
• PUBLIC SPEECH
• VIEWPOINT
• CONTENT
RESTRICTION *
• COMPELLING
INTEREST
• NARROWLY TAILORED
TO ACHIEVE ONLY THE
INTEREST
INTERMEDIATE
SCRUTINY
• NON-CONTENT
RESTRICTION
• COMMERCIAL
• LEGITIMATE
INTEREST **
• TIME, PLACE
MANNER
• REASONABLE
RESPONSE TO THE
INTEREST ***
RATIONAL
REVIEW
• SCHOOLS
• UNPROTECTED
SPEECH, e.g.
OBSCENITY
• SOME
INTEREST
• RELATED TO THE
INTEREST
* DOES NOT APPLY TO ALL CONTENT-ORIENTED SUPPRESSION
** OTHER THAN SUPPRESSING FREE EXPRESSION
*** INCIDENTAL 1st AMENDMENT EFFECT NO MORE THAN NECESSARY TO PROTECT INTEREST
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Is All Speech Free?
• Atomic Energy Act: “Whoever, lawfully or unlawfully, having
possession of … any document … plan, … or information …
incorporating [data concerning design, manufacture, or
utilization of atomic weapons] - communicates, transmits, or
discloses the same to any individual or person … with reason to
believe such data will be utilized to injure the United States”
$10,000 or 10 years, or both. 42 U.S.C. §2274
• Computer Fraud and Abuse Act prohibits, with intent to defraud,
trafficking “in any password or similar information through which
a computer may be accessed without authorization.” 18 U.S.C.
§1030
• Where the danger outweighs the impact on free speech, the
speech can be prohibited
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Traditional Categories of Speech
• Protected speech (which may include expressive
conduct) that is protected by the first amendment:
– Political speech, expression of ideas alone (HIGHEST
LEVELE OF PROTECTION)
– Commercial speech: advertising (LOWER LEVEL OF
PROTECTION – must tell the truth)
• Unprotected speech
– obscenity, defamation, fighting words, speech calculated to
provoke illegal action; speech that presents a clear and
present danger
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What is Electronic Speech?
• Anything expressive communicated electronically
• Display of text, images, video, digitized music on a
computer
• Internet domain names
• Computer programs
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Defining Obscene Speech
1. Would the average person, applying community
standards, find that the speech appeals to prurient
interests?
2. Does the speech depict sexual conduct in a clearly
offensive way?
3. Does the work lack serious artistic, political or
scientific value?
Miller v. California, 413 U.S. 15 (1973)
Indecent speech is protected; obscene speech is not
Government may regulate indecent speech in broadcast
media (radio, TV)
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Communications Decency Act (CDA) of 1996
• Congress attempted to prevent obscene and indecent materials
from reaching minors on the Internet:
• “Whoever … in interstate or foreign communications … by means
of a telecommunications device knowingly … makes, creates, or
solicits, and initiates the transmission of, any comment, request,
suggestion, proposal, image, or other communication which is
obscene or indecent, knowing that the recipient of the
communication is under 18 years of age, regardless of whether the
maker of such communication placed the call or initiated the
communication; shall be fined … or imprisoned not more than two
years, or both.”
• Also forbids “patently offensive” display of “sexual or excretory
activities or organs”
• Responsibility of web hosts to insure such materials were not
accessible to minors
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Reno v. ACLU
• First U.S. Supreme Court case to address freedom of speech
and the Internet
• ACLU (American Civil Liberties Union) and others sued Janet
Reno, Attorney General, to prevent indictments under the CDA
• Would violate free speech because it punished posting
protected indecent speech as well as unprotected, obscene
speech.
• District Court and 3rd Circuit held for ACLU
• Reno appealed to the Supreme Court
• Held, the CDA's "indecent transmission" and "patently offensive
display" provisions abridge freedom of speech
• Internet is the “most participatory form of mass speech yet
developed”
• Not feasible to perform age verification
Reno v. ACLU, 521 U.S. 844 (1997)
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Rest of CDA Still Valid
• Reno v. ACLU did not strike down all of the CDA
• Prohibition against transmission of obscene and
indecent materials with the intent to harass;
• Immunity provision for ISPs for material posted on
websites
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Rest of CDA Still Valid
• “Good Samaritan” blocking and screening protection:
• “No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided
by another information content provider.”
• “No provider or user of an interactive computer service shall be
held liable on account of –
– (a) any action voluntarily taken in good faith to restrict access to or
availability of material that the provider or user considers to be
obscene, lewd, lascivious, filthy, excessively violent, harassing, or
otherwise objectionable, whether or not such material is
constitutionally protected; or
– (b) any action taken to enable or make available to information
content providers or others the technical means to restrict access to
material described in paragraph (1).
47 U.S.C. 230
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ACLU v. Ashcroft
• After Reno v. ACLU, Congress tried to fix the CDA. It passed
the Child Online Protection Act (COPA), 47 U.S.C. 231
• COPA makes it a crime for anyone who “knowingly and with
knowledge of the character of the material, in interstate or
foreign commerce by means of the World Wide Web, makes any
communication for commercial purposes that is available to any
minor and that includes any material that is harmful to minors.”
• ACLU and others sued John Ashcroft, Attorney General, to
prevent indictments under COPA
• Would violate free speech because it applies children’s standard
to adults, reducing all web content to a child’s level
• Applied strict scrutiny (since based on content) and found that
the remedy was not “narrowly tailored” to prevent the harm
ACLU v. Ashcroft, (3rd Cir., Mar. 6, 2003)
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Zeran v. America Online, Inc.
• Anonymous user posted Zeran’s name and home phone
number on AOL associated with offensive products relating to
the 1995 Oklahoma City bombing
• AOL refused to take down the postings; Zeran sued for
defamation
• AOL’s acts occurred in 1995
• CDA became effective February 8, 1996
• Zeran sued on April 23, 1996
• Held, AOL is immune under the ISP provision of the CDA, even
though it knew of Zeran’s claim of defamation
• “Congress' desire to promote unfettered speech on the Internet
must supersede conflicting [state] causes of action.”
Zeran v. America Online, Inc., 129 F. 3d 327 (4th Cir., 1997)
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Defamation
• A false statement made by the defendant about a
person (plaintiff)
• Communicated to at least one other person
• Made intentionally, or with reckless disregard for the
truth
• That causes damage to the plaintiff’s reputation
• (Libel is defamation in a permanent or widespread
medium; slander is spoken defamation)
• Publishers (creators of material) are liable; generally
distributors are not liable
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Defamation on the Internet
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Statements made in chat rooms
Information posted on a web site
Email messages and listservs
Defamatory information in an accessible database
Bulletin Board postings
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Domain Names
• Defamatory use of another’s domain name may
result in liability.
– Limited by first amendment protection for criticism
and commentary
– In commercial context about a company’s
products may be “product disparagement” similar
to defamation
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Bally Total Fitness Holding Corp. v. Faber
29 F.Supp. 1161 (C.D. Cal. 1998)
• Bally operates a chain of health clubs
• Faber created a website called “Bally Sucks”:
www.compupix.com/ballysucks that included the Bally trademark
and the words “Sucks” across it together with depictions of gay
men
• Bally sued for trademark infringement, trademark dilution and
unfair competition
• Held, function of trademarks is not to prevent criticism, but is
protected speech
• Note: saying “Bally Sucks” is not defamation since it is opinion,
not a factual statement
• “sucks” sites are very popular
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Computer Programs as Speech
• Are computer programs speech?
• Are they expressive?
• What about a program whose only function is to
display an illegally obscene image?
• Computer programs are also functional (do things)
• Computer software
– restrictions on encryption exports
– restrictions on using software to circumvent
copyright protection devices.
• What government interests are served by
government restrictions on programs?
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Junger v. Daley
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Peter Junger was a professor of law at Case Western. Wanted to post
encryption code on his website
Posting is considered an export since anyone outside the U.S. can access it
License was required from the Customs Service to export encryption, part of
the Commerce Department. William Daley was the Secretary of Commerce
Junger sued Daley claiming the export regulations were unconstitutional
District Court upheld the regulations. Daley appealed.
Supreme Court said: “all ideas having even the slightest redeeming social
importance,” including those concerning “the advancement of truth, science,
morality, and arts” have the full protection of the First Amendment. This
includes computer programs.
This includes “symbolic conduct, such as draft-card burning, that has both
functional and expressive features.”
Appeals court instructed the District Court to reconsider the case.
Junger v. Daley, 209 F.3d 481 (6th Cir. 2000)
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Circumvention Devices
• The Digital Millennium Copyright Act (DMCA) makes
it illegal to
“manufacture, import, offer to the public, provide, or
otherwise traffic in any technology, product, service,
device, component, or part thereof, that - is primarily
designed or produced for the purpose of
circumventing a technological measure that
effectively controls access to a [copyrighted] work.”
17 U.S.C. 1201
• Exceptions for reverse engineering, encryption
research, security testing, etc.
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The DeCSS Case
Universal City Studios v. Reimerdes, 111 F.Supp.2d 294 (S.D.N.Y 2000)
• CSS is a technology that encrypts DVDs
• Jon Johansen, a Norwegian teenager, cracked CSS,
producing DeCSS, a short program for decrypting DVDs
• Corley, a NY journalist who writes for 2600.com, “The
Hacker Quarterly,” posted DeCSS on his site
• Numerous movie studio plaintiffs sued Corley in Federal
court in NY under the DMCA to force him to remove
DeCSS. A preliminary injunction issued.
• He removed DeCSS but added links to other sites offering
DeCSS
• After trial, he was permanently enjoined from posting
DeCSS or linking to sites that offered it.
• But see David Touretzky’s Gallery of CSS Descramblers
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Major Ideas
• Governmental bodies have regulatory (rulemaking)
authority
• Speech isn’t really free, but is subject to numerous
exceptions
• ISPs have distributor immunity for defamatory material
(unless they are the publisher)
• Trademark law cannot be used to prevent comment or
criticism
• Computer programs have both expressive (speech) and
functional elements
• Whether programs can be regulated depends on what
they do, not what they say
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Q&A
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Regulation of Employee Speech
• Distinguish between private and public employers;
• Private employer policies to protect employees from
harassment, to insure company property is used for
company business;
• Anti-company web sites by disgruntled employees.
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Public Employees
• Have greater speech rights because they are
protected by the First Amendment
• Employer still has right to reasonably limit employee
use of computers and Internet to job-related
activities.
– Urosky v. Gilmore
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International Content Regulation
• Other countries are not limited by the First
Amendment in regulating the Internet
• Content regulation in Australia, China, Saudi Arabia;
• European countries outlaw hate speech;
• French Court sanctioned Yahoo! for Nazi memorabilia
posted on its site.
– Yahoo! claims judgment cannot be enforced in U.S. because
of First Amendment
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