References:

• Mike McGee, "Freedom of Speech," WWW:  Beyond the Basics, to be published by Prentice-Hall, 1998.
• Communications Decency Act. http://www.eff.org/pub/Alerts/s652_hr1555_96_draft_bill.excerpt

(1995; accessed Oct 1996).

Outline

• Defining the Right to Free Speech
• The Internet: The Ultimate Forum for Freedom of Speech
• Laws
• Attitudes Around the World
• Achieving Restrictions on the Net
• PICS

Defining the Right to Free Speech

First Amendment [National Archives, 1996]

"Congress shall make no law

• respecting an establishment of religion, or
• prohibiting the free exercise thereof; or
• abridging the freedom of speech, or of the press; or
• the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

UN Universal Declaration of Human Rights 
(Article 19) [Amnesty International, 1994]

"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. "

The Internet: The Ultimate Forum for Freedom of Speech

• Free Speech is no longer limited to print and broadcast media owners and employees

 
• Grand scale of many speaking to many

        .
• Internet allows the "lowest," least privileged persons to engage in discourse on any subject of their choosing with any of the "highest," most privileged members of society.

• No institutional control over this never-ending worldwide conversation

 
• Conversation easily crosses national boundaries

Arguments For/Against Limiting Freedom of Speech

Advocates of limiting free speech:

Governments protective of their role in society, parents concerned about exposure to their children, and federal agencies attempting to deal with illegal actions like terrorism

Advocates of unlimited free speech:

Citizen action groups desiring to protect every ounce of their freedom to speak, individuals concerned about their right to information on the Net, and organizations seeking to empower the citizens of the earth.
 

Laws Limiting Freedom of Speech

• Given that freedom of expression is one of the given human rights for all persons, how that right is to be legally protected and interpreted has already proven to be a major judicial endeavor.

• Mostly US laws

 

• No absolute right to free speech

 

• Generally, two provisions to limiting the right to freedom of expression:

 

• obscene material

 

• when there is a compelling government interest

 

US Supreme Court Definition of "Obscene Material"

a) depicts sexual or excretory acts listed in state obscenity statute,

b) depicts those acts in a "patently offensive" manner, appealing to the "prurient interest," as judged by a reasonable person applying the standards of the community, and

c) lacks "serious" literary, artistic, social, political, or scientific value.

International Treaty

104 countries have adopted a 1911 treaty (Protocol to amend the Convention for the Suppression of the Circulation of, and Traffic in, Obscene Publications, concluded at Geneva on 12 September 1923) to prohibit obscenity trafficking.

Also:  European Union commissions have proposed limiting sexual content and racist hatred on the net.

Laws Based on "Compelling government interest":

• Laws based on this rarely have been successfully defended in court

 
• When used, must be "least restrictive means possible"

Communications Decency Act (CDA)

• "Compelling government interest" to prevent children from "indecent" exposure
• "Indecency" in the CDA defined as:

"any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."

Contentious issues involving CDA

CDA Found Unconstitutional

First Ruling:  Philadelphia federal court district

• "The Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not... interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion."

Judge Dalzell, United States District Court for Eastern Pennsylvania, one of the ruling judges that found the CDA unconstitutional.

• Ruling was appealed

Second ruling:  Supreme Court

• Earlier decision upheld in June 1997 by a 7-2 vote
• Even the two dissenting judges agreeing that the CDA improperly limited communication between

adults
• The Supreme Court's ruling was written by Justice John Pul Stevens. He wrote that the desire to protect children "does not justify an unnecessarily broad suppression of speech addressed to adults."
• The CDA did have a provision to allow indecent material to be put on the Internet if access to it were limited through a credit card number or an adult access code. Stevens wrote that "such systems were prohibitively expensive."
• Justice Sandra Day O'Connor, writing for the two dissenting judges, argued that the CDA did not impair free speech of minors, but acknowledged that the CDA was unconstitutional in its impairment of communication between adults.
• The Court struggled with the question of whether other forms of communication could be used as a basis for ruling on communication over the Internet. Justice Stephen Breyer, during oral arguments preceding the decision, noted that "the Internet is very much like a telephone." Therefore why would "indecent" conversations between teen-agers on theInternet be restricted, but not over the telephone? Further, O'Connor observed the "The Internet is much like a streetcorner or park." Therefore if children are protected on the Internet, should they be protected from "indecent" language in pubic places?

Current Status:

• Three solutions:
1. Re-write and passed new version of CDA

Sen. Daniel Coats:  Use the Supreme Court ruling as a "blueprint" to create a constitutional bill
2. Let parents regulate:  Part of the oral arguments about the CDA presented to the Supreme Court questioned whether the responsibility to protect children lies with parents (e.g., with a V-chip like mechanism) or with providers of "indecent" material
3. Self-regulation (used in United Kingdom)

Legislation at State Level

• New York passed in Fall 1996 that makes it a felony to send sexually explicit materials to children via computer, with a prison term of up to seven years.
• No one has been prosecuted under law, as of June 1997.
• In June 1997, U.S. District judge issued temporary injunction blocking enforcement because "Internet cannot become cluttered by conflicting and confusing state-by-state legislation." [Roanoke Times, 22 June]
• So perhaps only federal legislation can censor the Internet.

Attitudes Around the World

See Chapter 19 for information on other countries.

France

• Sites must be available in French, if they are offered in English

 

UK

• No explicit Internet laws, instead use existing laws with Internet interpretation
• Organizations attempting to initiate voluntary regulation of the Internet
• Self-regulation viewed as the only alternative to government involvement/control
 

Germany

• Germany instigated the infamous banning of over 200 CompuServe newsgroups that resulted in far more embarrassment for the country than limited access to users.
• In defense of the officials that tried to impose the ban, they were only trying to comply with existing laws on censorship.
• This failed ban illustrated the difficulties with regulating the Internet on anything more than a very local level.

Achieving Restrictions on the Net

Crude approaches:

• Simply eliminate vast sections of the Internet from individual access
• Filter email, web pages, and other Internet content based on key word searches and pattern matching algorithms

• Monitoring web sites for content and kid approved content services

Several large corporations have adopted this approach. One "kid" approved service provider, as of this writing, included nearly 200,000 different web pages in its portfolio. This is a labor intensive effort however, and the limitations are quite clear.

• Self-regulation (as advocated in United Kingdom):
• Satisfies the legal "good faith" effort to prevent undesirable ("indecent") sites from children and it meets the "least restrictive means possible" clause without needlessly treading on "decent" sites.
• Example:  PICS self-rating system

Platform for Internet Content Selection (PICS)

PICS is analogous to the V-chip, which blocks television broadcasts based on ratings applied by various organizations

PICS is a convention for label formats and distribution methods for the Internet

PICS allows the supervisor of some organization (family, corporation, business, government, etc.) to choose what comes in and what doesn't.

Methodology of flexible blocking, based on:

• Supervisor
• Recipient
• Context of situation

How PICS works

• is not software or hardware; it is a set of technical specifications that allow software and rating services to work together (PICS compatible filtering software will work with PICS compatible rating services)
• provides a common format for labels so that any PICS compliant software can process any PICS compliant label.

PICS labels describe content. Different rating services can apply the ratings for the labels.

PICS compliant software processes PICS labels and determines suitability of viewing

PICS compliant rating service provides rating language for labels.  Supervisor chooses a rating service.

Ratings can be made for sexual content, political, personal, information, sports, coolness, boredom inducing, etc.

Generally a Web page author chooses a rating service for their web sites. The author
can, if so desired, devise a unique rating system, but then responsibility is assumed for legal
measures ensuring honest representation of the site.

Can limit access to certain sites (i.e., school class can only open selected class-related pages, prohibiting surfing)

PICS

• does not limit access unless software is set to limit access
• can set to block any unrated sites, or sites not rated by a certain rating agency
• can encrypt a rating services ratings to avoid alterations
• can rate unwilling sites with the use of a rating service server.

Objections to PICS

• The American Civil Liberties Union has argued that ratings and blocking based on ratings will, in the long term, limit free speech.
• ACLU argues that
• Large organizations that produce content will hire staff to follow ratings guidelines and will be trained in how ratings software works to affix rating labels.
• However, individuals creating Web pages are unlikely to have the time or training to do these things.
• Thus content created by individuals effectively will become invisible on a rating blocked Internet.
• Therefore every individual will have to rate every item of speech they personally post on the Internet, or risk having it blocked everywhere.
• Although in theory users can access unrated material, the default for Web browsers will be to use the one or two dominant rating services that will inevitably emerge.
• Their conclusion: "The Internet will become bland and homogenized."
• Another ACLU concern:
• Governments will make it illegal to mis-rate content
• Legislation was proposed by Sen. Patty Murray that would make it a crime to mis-rate Internet content.
• Yet another concern:
• Chat room conversations will always be unrated.
• The ACLU recommends, instead, six principles for resolving the problem:

 
• The Internet user should be the primary person that decides what is suitable for themselves or their children.
• Internet products should not require speakers to rate their own material, or and products should not by default block unrated material.
• Industry should develop products that maximize individual control over blocking mechanisms.
• "The First Amendment prevents the government from imposing, or from coercing industry into imposing, a mandatory Internet ratings scheme."
• "The First Amendment prevents the government, including public libraries, from mandating the use of user-based blocking software."