Content Regulation on the Net

    Dr. G.Haskins

• Free Speech, 1st Amendment, and the Net

        Cyberspace is like the American frontier

• Free Speech, 1st Amendment, and the Net

        Abrams vs. United States (1919)

“Marketplace of ideas…”

Best answer to bad speech is more speech

• Free Speech, 1st Amendment, and the Net  Whitney vs. California(1927)

“Fear of serious injury cannot alone justify suppression of free speech and assembly…

Men feared witches and burned women.  It is the function of free speech to free mankind from the bondage of irrational fears.”

Free Speech, 1st Amendment, and the Net

n    Unprotected Speech:

n    dangerous speech (Brandenburg v Ohio)

n    fighting words (Chaplinski v New Hampshire)

n    Threat (U.S. v Jake Baker)

n    Obscenity (Miller v California)

n    libel, slander (N.Y. Times v Sullivan)

n    Protected Speech

n    almost anything else (hate speech, indecency)

Free Speech, 1st Amendment, and the Net

Free Speech, 1st Amendment, and the Net

OBSCENITY not protected

n    Miller vs. California

n    Community standard for judging obscenity

Free Speech, 1st Amendment, and the Net

n     The "Miller" test asks whether (1) the average person applying contemporary community standards would find "that the work, taken as a whole, appeals to the prurient interest," (2) it depicts or "describes, in a patently offensive way, sexual conduct specifically defined by applicable state law, and (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

ONLINE  OBSCENITY

n    US v Thomas  (AABBS)

ONLINE OBSCENITY

Free Speech, 1st Amendment, and the Net

OBSCENITY still not protected

n    AABBS case

n    California couple convicted using Memphis standard

n    Exact opposite of the sense of Miller

n    The “community of receipt” is now the standard for the Net

TWENTY YEARS BEFORE…
“Deep Throat”

THE PROBLEM

Who decides for the world?

Free Speech, 1st Amendment, and the Net

n    What “community” should set the standard?

n    Consider community in its geographical sense

n    Possibly use Internet community to judge standard for Internet obscenity

Federal Response

n    Communications Decency Act

n    Banned “indecent” speech

n    Overturned

n    Child Online Protection Act

n    Bans any material which is “harmful to minors”

n    Gives web publishers defense if they required age verification (credit card, adult access code, adult PIN)

Federal Response

n     Child Obscenity and Pornography Prevention Act of 2002

n    Would make it a crime to produce, disseminate or possess computer-generated child pornography images that appear virtually indistinguishable from images produced with actual children. The bill would expand government access to email without a court order.

n     Children’s Internet Protection Act

n    Requires Library Blocking

n    Upheld by S.Ct., June 2003

n     Protecting Children from P2P Porn Act of 2003

n    Requires FTC to regulate P2P sites to protect children from adult material