Freedom of speech

A Gift of Fire, 2ed Chapter 5: Freedom of Speech in Cyberspace 1
Social, Legal, and Ethical Issues for Computers
and the Internet
Freedom of Speech In Cyberspace

A Gift of Fire
Freedom of Speech In Cyberspace
Changing Communications Paradigms
Offensive Speech and Censorship in Cyberspace
Anonymity
Spam
Ensuring Valuable and Diverse Content

Regulatory Paradigms
Communication technologies differ with respect to their
degree of First Amendment protection and government
regulation.
Print Media:
• Strongest First Amendment protection (books have been banned, but
the trend has been toward fewer government restraints).
Broadcast Media:
• Less First Amendment protection than print media (TV and Radio
stations are licensed by the gov’t…not print outlets).
Common Carrier (telephone, telegraph, postal system):
• Content not controlled and the carrier is not responsible for content.

Regulatory Paradigms (cont’d)
Internet, BBSs, commercial online services, and the WWW:
• Not exactly print media.
• Not exactly broadcast media.
• Not exactly common carrier.
Q: Who controls the distribution of news, information, and opinion at the
online service you use? at the Web sites you frequent?

The First Amendment
Protects Citizens From Government
• Prohibits restriction of speech, press, peaceful assembly, and religion.
Subsequent Interpretations Address:
• Offensive and/or controversial speech and ideas,
• Spoken and written words,
• Pictures, art, and other forms of expression and opinion, and
• Commercial speech (e.g. advertising).
Q: Should all speech be constitutionally protected?

Offensive Speech and
Censorship in Cyberspace
Speech Might Include:
• Political or religious speech.
• Pornography (Multibillion-dollar online business).
• Sexual or racial slurs.
• Nazi materials.
• Libelous statements.
• Abortion information.
• Alcohol ads.
Q: Identify other forms of speech found in cyberspace that some consider
offensive.

Miller v. California
Material is considered obscene if all three parts are met:
1. It depicts sexual (or excretory) acts whose depiction is specifically
prohibited by state law, and
2. It depicts these acts in a patently offensive manner, appealing to the
prurient interest as judged by a reasonable person using community
standards, and
3. It has no serious literary, artistic, social, political, or scientific value.
Q: Historically, how have local “community standards” affected censorship
of speech in cyberspace? (see next page)

Straining Old Legal Standards
No physical locations on the internet.
Page 198…

Material Inappropriate for Children
Technology Changes the Context
• On the Web, children have access to the same ‘adult’ text, images,
videos, etc. as adults (no “tickettaker” to check age).
• Online proprietors don’t know the customer is not an adult.
Protecting Children
Regardless of the medium:
– It is illegal to create, possess or distribute child pornography. (Because
creation of it is child abuse...)
– It is illegal to lure children into sexual activity.
Q: How should children be protected from access in cyberspace to adult
material? (next page)

Protect Children
Software filtering:
Bess
Cyber Patrol, Surf-Watch

Censorship Laws
Communications Decency Act (CDA, 1996)
• Publicity and public pressure lead Congress to pass this act.
• Anyone who made available to anyone under 18 any communication
that is obscene or indecent would be subject to a $100,000 fine and two
years in prison.
• American Civil Liberties Union (and other free speech advocates)
found this law to be a “profound threat to freedom of expression.
• In 1997, the CDA was ruled unconstitutional because it was too vague
and too broad in protecting children online and because less restrictive
means are available.
Q: Should content on the Internet have as much First Amendment protection as
printed material?

Censorship Laws (cont’d)
Child Online Protection Act (COPA, 1998)
• Commercial Web sites that make available to minors materials
“harmful to minors”, as judged by community standards would be
subject to a $50,000 fine and six months in jail.
• In 2000 and 2003, COPA was ruled unconstitutional by a federal court.
Q: How are children protected from “harmful” material outside of Cyberspace?

Censorship Laws (cont’d)
Children’s Internet Protection Act (CIPA)
• Any school or library receiving federal Internet funds must install
filtering software on all Internet terminals.
• Filters must block sites containing child pornography, obscene material,
and any material deemed “harmful to minors.”
• A federal appeals court ruled a major part of CIPA unconstitutional in
2002 but the Supreme Court upheld the law in 2003.
Q: How does CIPA affect adults accessing online material at a public library
that uses filtering software? See page 206…

Limiting Internet Access in Libraries and
Schools
Filtering Software
• Benefit: prevent access to inappropriate material on the Internet by
screening words or phrases, blocking sites according to rating system,
or disallowing access to specific sites in a list.
• Problems: can be ineffective—kids get around the filters; the words,
phrases, rating systems, etc. are subjective; “banned” keywords can be
overly restrictive for adult users and for legitimate use by minors.
• See page 205 for a list of filtered sites…
Q: What has been your experience with filtering software?

Challenging Old Regulatory Paradigms and
Special Interests
License required:
• To practice law.
• To publish traditional newsletters about commodities and futures
investing (prior to 2000).
No license required:
• To create downloadable, self-help legal software.
• To publish newsletters about, developing software for, and operating
Web sites concerning commodities and futures investing (since 2000).
Q: Is online advertising of wine free speech or disregard for the regulatory
rights of state governments?

Censorship On the Global Net
Global Impact
• Avoiding censorship: the global nature of the Net allows restrictions (or
barriers) in one country to be circumvented by using networks in other,
less restrictive countries.
• Creating censorship: the global nature of the Net makes it easier for one
nation to impose restrictive standards on others. Cases page 210.
Q: Why are online gambling sites established offshore?

Anonymity
Common Sense and the Internet
• Early publications by some of our Founding Fathers were published
under pseudonyms.
• Today, there are publications on the Net that are posted anonymously.
• Anonymizer.com Surf the web/send e-mail anonymously
Q: What are the drawbacks of anonymous Web postings?
(See next slide)

Against Anonymity
• Potential to shield criminal/anti-social
activity
– Fraud, harassment, and extortion
– Distribution of child pornography
– Libel or threatening others with impunity
– Infringe copyrights by posting software
– Plan terrorist attacks
• Poor “netiquette”

Anonymity
Is Anonymity Protected?
Conflicts between political freedom of speech and campaign
regulations:
• Anonymity protects against retaliation and embarrassment.
• Anonymity violates rules established by the Federal Elections
Commission (FEC) Case page 215.
Q: Should anonymous political speech on the Web be regulated?

Anonymity
Anonymity vs. Community
Supporters of anonymity:
• Say it is necessary to protect privacy and free speech.
Opponents of anonymity:
• Believe it is anti-social and allows criminals to hide from law
enforcement.
Q: How is the practice of anonymity online similar/dissimilar to strong
encryption? VERY similar…challenging to law enforcement.

Spam
What Is the Problem?
Unsolicited, mass e-mail:
• is cheap to senders but may impose costs on the recipient’s time and/or
the recipient’s online account.
• may contain objectionable content (political, commercial ads,
solicitations for funds, pornography, etc.).
• may contain a disguised return address.
• may pass through filters.
• invades privacy.
• creates a financial and managerial burden on ISPs.
Q: How do you handle spam?

Spam
Cases and Free Speech Issues
AOL v. Cyber Promotions
• AOL and other service providers have successfully sued spammers
because of the cost burden imposed. Page 219.
Disgruntled Intel Employee
• Initially, a court ruled that non-commercial spam to Intel employees at
their Intel e-mail accounts was a form of trespass.
• The CA Supreme Court ruled that it was not.

Spam
Solutions
• Technology: filters that screen out spam.
• Market Pressure: services that list spammers.
• Business Policy: at the discretion of the recipient, all e-mail would be
charged a microfee.
• Law: create restrictions that are consistent with the First Amendment.
• Vigilantism: punish spammers by hacking into their phone or computer
systems.
Q: Which solution above, or others, do you support?

Ensuring Valuable and
Diverse Content
Points to Consider:
• Is there a balance between commercial and educational information on
the Web?
• Should diverse content on the Web be subsidized with taxes?
• Should valuable content on the Web be regulated?
• Do we need to ensure the existence of sites containing civic
information?
• Are more sites that promote the arts and culture needed?
Q: How do we ensure valuable and diverse content in traditional forms of
media?

Freedom of speech

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