Ch. 04: Free Speech

1. Did the Supreme Court in Reno II leave room for a constitutional version of the CDA it struck down? The Ashcroft II Court evinced some doubt that COPA had met that standard. What would you suggest that federal lawmakers do?

2. On the Internet, what "community" counts for the purposes of the "community standards" test of obscene speech? Ashcroft I, 535 U.S. 564 (2001), faced but dodged that question. The Third Circuit had, in its first analysis of COPA, held the statute unconstitutional because it imposed local standards on a borderless medium. See 217 F. 3d 162 (3rd Cir. 2000). Vacating and remanding that opinion in Ashcroft I, a plurality of the Supreme Court held only that the 3rd Circuit had failed to demonstrate that COPA facially violated the First Amendment solely because the statute invoked local community standards. In other words, courts would have to find other grounds for invalidating COPA.

3. Unfortunately, the Supreme Court did not take the opportunity afforded by Ashcroft v. ACLU to correct some dangerous dicta in the Third Circuit opinion under review. The Third Circuit claimed in passing that the availability of such self-help remedies as filtering software could have no bearing on whether or not COPA offers the least restrictive means of protecting minors from harmful material. See 217 F.3d 162, 171 n. 16 (3rd Cir. 2000) ; id. 181 n. 24. That claim contradicts both Supreme Court precedent and good public policy, however. See Tom W. Bell, Free Speech, Strict Scrutiny, and Self-Help: How Technology Upgrades Constitutional Jurisprudence, 87 U. Minn. L. Rev. 723 (2003) [PDF format].

4. Apollomedia Corp. v. Reno, 19 F. Supp. 2d 1081 (N.D. Cal. 1998), tested the constitutionality of provisions of the Communications Decency Act of 1996 left unaltered by Reno I and Reno II. Notwithstanding the plain language of 47 U.S.C. § 233(a)(1)(A)(ii), which criminalizes the intentional transmission of "obscene . . . or indecent" communications "with intent to annoy" another person, the court interpreted the statute to outlaw only obscene communications. The Supreme Court affirmed without comment. 526 U.S. 1061 (1999).

5. On December 21, 2000, President Clinton signed into law the Children's Internet Protection Act ("ChIP Act" or "CIPA"), included as part of the Consolidated Appropriations Act, 2001, Pub. L. No. 106-554, and codified in relevant part at 47 U.S.C. § 254(h) and § 254(l) of the Communications Act of 1934, as amended; the Elementary and Secondary Education Act of 1965, 20 U.S.C. §§ 6801 et seq; and 20 U.S.C. § 9134(b) of the Museum and Library Services Act. In general, CIPA conditions the receipt of federal E-rate funding by schools and libraries that provide Internet access on their implementation of certain Internet safety policies. Such policies must include a technological prevention measure (such as filtering software) that protects both adults and minors from visual depictions that are obscene or child pornography and, with respect computers used by minors, visual depictions that are harmful to minors. Schools (but not libraries) must also certify that their policy includes monitoring the online activities of minors.

   In American Library Assoc. v. U.S., 201 F. Supp.2d 401 (E.D. Pa. 2002), a three judge panel struck down CIPA as an attempt to induce libraries to unconstitutionally abridge free speech. The Supreme Court reversed in a severely fractured decision-one that included five separate opinions; see United States v. Am. Library Ass'n, 539 U.S. 194 (2003). Writing for a plurality of four justices, Chief Justice Rehnquist held that CIPA did not impose unconstitutionally unreasonable conditions on the recept of federal funds and that the ease with which library patrons could have filtering software disabled obviated concerns about the software's alleged tendency to erroneously "overblock" access to constitutionally protected speech.

6. Most of the cases we have read regarding First Amendment rights have struck down government restrictions on Internet speech. For a counterexample, see Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000) (en banc) (upholding the constitutionality of a Virginia law restricting state employees from accessing sexually explicit material on state computers), cert. den., 531 U.S. 1070 (2001). Does that case suggest a route towards more government regulation of online speech?
   

Useful Resources and Optional Reading

1. Nearly contemporaneous with our readings in this section, the Third Circuit issued Green v. America Online, 318 F.3d 465 (3d Cir. 2003), a case addressing AOL's liability for acts of its users. That case reaffirmed that § 230 of the CDA immunizes interactive computer services such as AOL from liability for any defamatory comment made by a third party. More interestingly, the court also held that AOL could not be held liable for malicious software transmitted by "another information content provider." 47 U.S.C. § 230(c)(1). The court reasoned that such software fell within the ambit of "information" as the CDA uses that term.

2. Stratton Oakmont alarmed many commentators and arguably provided the primary impetus for the CDA's safe harbor provisions. What would the Internet look like today were Stratton Oakmont, rather than the CDA, the standard for determining liability for defamation?

3. If our readings on indecent Internet speech left you skeptical about congressional competence, our readings on defamation may have had the opposite effect. How would you characterize the impact of the CDA on defamation law? Does its impact extend to paper publications? Why or why not?

4. The court in Blumenthal sounds less than fully pleased with the effect of the CDA on defamation law. What standard do you suppose the court would have preferred to apply?

5. What does Lunney suggest about the utility of the CDA's safe-harbor from defamation? About its fairness?

6. Apply Godwin's thesis to the facts presented in the cases we read and assess its credibility. Does your experience with flaming on email lists and newsgroups confirm his prediction?

7. Apart from the CDA and the self-help described by Godwin's thesis, yet another reason has arisen why online speech is less likely to give rise to defamation claims than offline speech: courts are more willing to regard Internet speech as expressing mere rhetoric or opinion. See for example, Global Telemedia International v. Doe 1 aka BUSTEDAGAIN40, 132 F. Supp.2d 1261, 1267-1270 (C.D. Cal. 2001), (explaining that chatroom messages lacked "the formality and polish typically found in documents in which a reader would expect to find facts."). See also id. at 1269-70, Barret v. Clark, 29 Media L. Rep. 2473, 2001 WL 881259, *8 (Cal. Superior Jul. 25, 2001) (NO. 833021-5) (granting motion to strike, pursuant to California anti-SLAPP legislation, plaintiffs' libel claims regarding statements made on Internet newsgroup).
   
   

Useful Resources and Optional Reading

1. Taken together, what do Taucher and Daniel suggest about the remedies available to someone who thinks that he or she has been misled by an online financial news service? By an online investment advisor?

2. Assess the effectiveness of the CAN-SPAM Act, paying particular attention both to the difficulties of bringing suit and to the potentially large damages available to electronic mail service providers. What remedies does the Act provide to you, the consumer of email services? Do you think those sufficient?

3. Prior to passage of the CAN-SPAM Act, several states had passed acts regulating unsolicited commercial email. See, e.g., Cal. Bus. & Prof. Code §§ 17538.4, 17538.45 (2003). Section 8 of the CAN-SPAM Act, 15 U.S.C. § 7707(b) (2005), preempted such state-level legislative experimentation.

4. The Supreme Court returned to the problem of defining First Amendment rights to commercial speech in Greater New Orleans Broadcasting Ass'n, Inc. v. U.S., 527 U.S. 173 (1999), a case decided almost simultaneously with Taucher. In Greater New Orleans Broadcasting, the Court found unconstitutional a federal ban on radio and TV advertisements for private casino gambling as applied to ads broadcast from a state that had legalized the gaming in question. The federal ban, set forth in 18 U.S.C. § 1304, allegedly aimed to protect the interests of neighboring states that had outlawed such gambling but where such broadcast ads might nonetheless reach. While acknowledging widespread dissatisfaction with its holding in Central Hudson, the court expressly declined to adopt "a more straightforward and stringent test for assessing the validity of governmental restrictions on commercial speech." 527 U.S. at 184. Hewing to Central Hudson's four-step test, the Court found that 18 U.S.C. § 1304 failed to directly and materially advance the asserted government interests (the third prong) and restricted more speech than necessary to serve those interests (the fourth prong).

5. Greater New Orleans Broadcasting Ass'n, discussed in the prior note, proves interesting not only for what it says about First Amendment protections of commercial speech but also, and of more direct relevance to Internet law, for what it suggests about the regulation of gambling advertisements on the Internet. We will discuss the issues surrounding Internet gambling in a later chapter. For now it suffices to note that Greater New Orleans Broadcasting Ass'n, Inc. v. U.S. casts deep doubt on the constitutionality of any federal ban on Internet advertisements of legal gambling--at least when such ads issue from a jurisdiction where such gambling is legal. In the course of resolving another case concerning gambling advertisements, Players International Inc. v. U.S., 988 F. Supp. 497 (D.N.J. 1997), pet. for cert. prior to judgment of 3rd Cir. den. 525 U.S. 1094 (1999), federal regulators have announced that they read Greater New Orleans Broadcasting Ass'n to render unconstitutional any application of 18 USC § 1304 to restrict "truthful advertisements for lawful casino gambling, regardless of whether the broadcaster who transmits the advertisement is located in a state which permits casino gambling or a state which prohibits it." FCC Office of Gen. Counsel and Mass Media Bureau, Casino Advertising Enforcement Pending Disposition of Players InternationalCase, DA 99-2034, 1999 WL 777511 (Sept. 30, 1999).
   
   

Useful Resources and Optional Reading

1. Although Alkhabaz relied on construction of a federal criminal statute restricting speech that threatens imminent harm to others, it bears asking whether prosecutors might have used other legal tools. Consider the following:
   1. Assault, which puts a reasonable person in apprehension of an immediate battery.
   2. Conspiracy, which requires an agreement to commit an offense and an overt act in furtherance of that goal.
   3. Speech subject to censorship under the "clear and present danger" exception (Brandenburg v. Ohio) because it: 1) is directed to inciting or producing imminent lawless action; 2) is likely to incite or produce such action.
   
   
2. Consider what the Alkhabaz court would say to the following scenarios:
   1. Defendant posts to a newsgroup or listserv a message that says, "First thing we do, lets kill all the law students."
   2. Defendant posts to a newsgroup or listserv a message that says, "LWSCH2L, you make me sick. I'd like to punch your face."
   3. Defendant sends private email that says, "If you were in front of me right now, I would sharpen your heels and drive you into the ground." What if the email gets delayed? What if defendant is writing from Singapore? Across campus? Across the computer lab? What if it is not email but chat?
   
   
3. In Virginia v. Black, et al., 538 U.S. 343 (2003), the Supreme Court held that a State may, consistent with the First Amendment, ban cross burning carried out with an intent to itimidate. Crucially, the ban did not reach all cross burnings. The historical context mattered to the Court's holding, too. It explained,

   The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence.

   Id. at 363.

4. As observed by the appellate opinion that we read, the trial court in Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists found that a web-based "hit list" targeting specific abortion providers constituted a true threat and, thus, enjoined its publication. See 41 F. Supp. 2d 1130 (D. Or. 1999) [one alternate source and another alternate source (only the order and injunction)]. Notwithstanding that trial court's order, the "Nuremburg Files" web page remained available online for some time, albeit only as a historical document and only via the efforts of an overseas free speech advocate (who has since removed it and put up an explanation). By contrast, I've found no U.S.-based site preserving the original, banned web page. Read the trial court's order. Does it justify the evident caution of U.S.-based re-publishers of the enjoined documents?
   
   

Useful Resources and Optional Reading

E. Anonymous Speech