Free Speech & the Internet

Free Speech and the Internet

Team A

University of Phoenix Online

BUS415 - Business Law

Facilitator: Mr. Mark Goodman

December 6, 2004

Abstract
Because the internet provides invaluable information at the touch of a button, unwanted and inappropriate information is readily available and concern over free expression and First Amendment violations with respect to filtering and censorship are at issue as we look at protecting children and families.

Free Speech and the Internet Not all speech, such as obscenity, is protected under the First Amendment of the U.S. Constitution. The law differentiates between obscene and indecent speech. Currently the three part test for determining whether speech is illegally obscene is when it is found by a jury or judge to (1) appeal to the prurient interest, (2) depicts sexual conduct in a patently offensive manner, and (3) lack serious literary, artistic, scientific and political value. Differentiating obscenity from indecency has a long history in the law. The Hicklin Rule provided the precedent for many years. This precedent developed from an obscenity case in England in the late 1800s. Britain’s Chief Justice, Alexander Cockburn stated in his ruling: "The test of obscenity is whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall."(Kovarick) Although this particular case took place in England, American courts cited the Hicklin Ruling in obscenity cases. Other major cases involving the issue of obscenity and involving issues with the Internet are: 1. Roth vs. U.S. (1957) The Roth Standard redefined obscenity from the Hicklin Rule, and said obscene materials were not protected under the First Amendment. Roth defined obscene as: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as whole appeals to the prurient interest.” (Brennan) 2. Smith vs. California. (1959) A bookstore owner was found not guilty of knowingly selling obscene materials. The case tested scienter and became an important case to Internet service providers. 3. Memoirs of a Woman of Pleasure v. Massachusetts, (1966) The Supreme Court ruled this book was not obscene based on this three-part test:
A book can be held obscene if: “(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters, and (c) the material is utterly without redeeming social value.” (Brennan) In 1997, the Supreme Court struck down the 1996 Communications Decency Act (CDA), which was deemed unconstitutional. The Court said the Internet and the World Wide Web should not be regulated as broadcasters, and should have full First Amendment protection. This was in Reno v. ACLU. Traditionally the definition of community included geographical boundaries, which do not exist on the Internet. Community membership on the Internet is experiential. Other factors used to determine communities are: “continuity of membership; shared experiences, progress, deliberation, and goals among members; personal investment of members; established boundaries; and the ability to distinguish members from nonmembers.” (Harvard) The issue of local community standards in obscenity law was tested in United States v. Thomas. The Court applied the local community standards test, as opposed to accepting a community of cyberspace standard, and allowed the prosecution to stand of two individuals who made obscene material available on the Internet. The issue argued centered on where the effects of the obscenity were felt, in the local community or in cyberspace. Since the Internet has millions of users it may be impossible to define a cyberspace community, although in the future, with more sophisticated technology allowing for privacy, subsets of Internet users may legally constitute a community. The first inklings of the Internet began in the United States in 1969 as a network of four servers called the APRANET. ARPA (the Advanced Research Projects Agency), a division of the Department of Defense, created the ARPANET for military research so that the information on the network would be decentralized and could survive a nuclear strike. By 1990 the HyperText Transfer Protocol (HTTP) had been created to standardize the way in which Internet documents are sent and received By 1994, the APRANET was disbanded, and the Internet became a public network connecting millions of computers together worldwide. Commercial organizations began to offer services over the Internet. At present, millions of companies are now online offering products and services such as software, hardware, books, games and adult oriented photographs. Though estimates vary, the consensus is that the amount of providers and users of the Internet has nearly doubled each year since the late 1980’s. The complexity of the Internet is demonstrated through its many components. The most readily identifiable part is the World Wide Web (WWW). This consists of web pages that can be accessed through the use of a web browser. Web pages are created using a basic programming language. Another easily identified section of the Internet is e-mail. Once again it is a relatively user-friendly communication device. The internet as we know it is a unique way in which to communicate information, but there are times that the information that we seek is returned with unwanted and unsolicited information, much like the junk mail that we receive in our traditional mail. In 1977, the Supreme Court ruled that the Internet “is a unique medium entitled to the highest protection under the free speech protections of the First Amendment to the U.S. Constitution” thus much the same the print version of solicitation, the internet is protected in the same way. But the question remains on how we stop the flood of inappropriate material that we may find offensive, including that which may arise from other countries where the laws are different? Filtering technology can aid in preventing the unwanted material from entering our homes regardless of its origin. (http://www.ncac.org/) Parents and users of the Internet need to determine what is appropriate material that should be allowed into their homes, not necessarily what our government deems appropriate. Filtering technology is offered through many Internet Service Providers such as AOL. These filters allow parents to indicate the level of control for age appropriate material and will block any objectionable sites. Additionally, laws have been enacted to protect our children from this inappropriate material in addition to the filtering technology available. . (http://www.ncac.org/) The Communication Decency Act (CDA) was part of the 1996 Telecommunications Act passed by the United States Congress. The primary goal of the CDA was to put strict laws into place regulating and censoring speech on the internet in order to protect children. The proponents of the CDA were suggesting creating laws for the internet similar to those that were in place for television and radio, while the opponents of the CDA asserted that the internet was not like television and should not be regulated like it. In 1997, the Supreme Court heard arguments regarding the legality of the CDA, and in a landmark decision struck it down. The courts ruling was that the internet is a unique medium and it is entitled to free speech protections guaranteed under the First Amendment of the United States Constitution. (http://www.spectacle.org) However, the Child Online Protection Act (COPA) was passed in October of 1998 to protect children and assist parents with the widespread availability of the internet to minors, to access inappropriate materials through the World Wide Web, especially those of sexual nature or orientation. The primary goal of the Children’s Online Privacy Protection Act (COPPA) Rule is to give parents control over what information is collected from their children online and how such information may be used. COPPA became effective on April 21, 2000, and applies to the online gathering of personal information from children under 13. (Cannon, Robert (V6 p 34) Coping with COPPA: Children’s privacy in an online jungle) The basic principle that the COPPA spelled out was that the World Wide Web operator must include in a privacy policy, how to seek verifiable consent from a parent and what responsibilities an operator has to protect children’s privacy and safety while online. (Cannon) Those who are authorized to comply with the above enactments are those that operate a web site or an online service directed to children under the age of 13 that gathers personal information from children. Additionally, if they should operate a general audience Web site and have the knowledge that they are collecting this personal information from children must comply with the enactment. Those that knowingly violate these laws shall be fined not more that $5000, imprisoned not more than 6 months or both. (Cannon) In conclusion, the internet provides invaluable information at the touch of a button, unwanted and inappropriate information is readily available and concern over free expression and First Amendment violations with respect to filtering and censorship are at issue as we look at protecting children and families. Even with the COPA, which was passed in 1998, parents must still play the key role in protecting minors that have access to inappropriate materials through the World Wide Web, especially those of sexual nature or orientation.

References
Brennan, William. John Cleland’s Memoirs of a Woman of Pleasure vs. Massachusetts (1965) Retrieved November 28,2004 http://www.fordhamprep.org/socstud/Cases/memoirs.htm
Burger, Warren. Miller vs. California. Retrieved December 2, 2004 http://encyclopedia.thefreedictionary.com/Miller%20vs.%20California
Cannon, Robert (V6 p 34) Coping with COPPA: Children’s privacy in an online

jungle, Retrieved from ProQuest, University of Phoenix Online, Nov 13, 2004

Center for Democracy and Technology. An Overview of the Communications

Decency Act (CDA) Retrieved November 13, 2004 from

http://www.cdt.org/speech/cda/

Developments in the Law: The Law of Cyberspace. Virtual Communities and Real: Social and Political Dynamics of Law in Cyberspace. Retrieved November 28, 2004 http://www.harvardlawreview.org/issues/112/7_1586.htm
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Electronic Privacy Information Center. Internet Censhorship. Retrieved November 13, 2004 from http://www.epic.org
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November13,2004 from http://www.spectacle.org/freespch/faq.html

Heins, M., Cho, C. (2001) Internet Filters A Public Policy Report. National

Coalition Against Censorship. Retrieved November 13, 2004 from

http://www.ncac.org/issues/internetfilters.html#EXECSUM
Justice Potter Stewart. Jacobellis vs. Ohio, 878 U.S. 184 (1964) Retrieved November 28, 2004 http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=378&inv ol=184
The Children’s Online Privacy Protection Rule, Retrieved November 13, 2004 from

http://www.ftc.gov/bcp/conline/pubs/buspubs/coppa.htm

Kovarick, B. PhD. Interactive Notes on Global Media Law and Ethics. Retrieved November 28, 2004 http://www.radford.edu/~wkovarik/class/law/1.0.lawbook.html