Free Speech Issues: Speech that Incites; Commercial Speech

1. Free Speech Issues: Speech that Incites;Commercial Speech CS 340 Fall 2014

2. Foundations of Free Speech • Make careful reading of pp. 244-249 • Look thru the list of the kinds of speech people have wanted to control or suppress: • Meanings and definitions • protection or not & reasoning behind the choices. • (Not all of these are protected)

3. UNPROTECTED SPEECH:Speech that Incites • Incite: to encourage, bring about, to move to action • Kinds: • True Threats: http://www.firstamendmentcenter.org/n-y-judge-aggravated-harassment-law-%e2%80%98cries-out-to-be-reworked%e2%80%99 • Fighting words: intentionally directed at a listener with malice to cause listener to immediately retaliate. Their utterance inflicts injury and an immediate breach of peace

4. Old Standard: • p. 247-9 Clear and present danger rule from Schenck v. US (1919) • "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." • “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”

5. New Standard: • Current test for speech that incites: • imminent lawless action test from Brandenburg v. Ohio(1969) • Intent, imminence, likelihood • “These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

6. Examples for Discussion: • Lady threatens cop • http://www.firstamendmentcenter.org/her-cop-cussing-ruled-fighting-words-not-free-speech • Terry Jones the Koran burning preacher • F* the Draft jacket: Cohen v. California (1971) • http://www.firstamendmentcenter.org/40-years-ago-a-ruling-that-still-rings-today • Compare: • Threatening presidential candidate Obama on yahoo message board: • http://www.time.com/time/nation/article/0,8599,2084921,00.html • Jarvis Britton’s F.E.A.R Twitter comments: • http://www.huffingtonpost.com/2013/06/20/obama-threat_n_3473452.html • Tweets that threaten as free speech: 8,000 “troublesome” tweets at Alyce • http://venturebeat.com/2011/12/16/tweets-online-stalking/ • Jailed for sarcasm? • http://www.huffingtonpost.com/2013/06/27/teenager-justin-carter-facebook-comment-jail_n_3512025.html

7. What is the current test for inciteful speech? • Whether the speech is intended to and is likely to bring about imminent lawless action • Whether the speech presents a clear and present danger 30

8. More on Threatening Speech:The Jake Baker case Class discussion Other resources for the Jake Baker case: • Timeline of US v. Bakerat wikipedia • Entry for Jake Baker at wikipedia • Archived resources: • http://www.mit.edu/activities/safe/safe/cases/umich-baker-story/Baker/Jake_Baker.html

9. Resolution of the Baker case • Charge against him for story about named classmate dropped. • The case against him (5 counts) for violating 18 USC 875 dismissed • Exchange of emails with Gonda detailing fantasy/plans for rape, torture murders • Was found that it was not a credible or “ true threat” • Was determined Baker was within 1st amendment writes to compose his “story/fantasy emails” since the stories were not a true threat

10. Do you agree with the court in the Baker case? • Yes • No 30

11. Hate Speech • Hate Speech: speech that disparages a group based on a characteristic • In the United States, hate speech may be protected under the First Amendment. • Only hate speech that meets the imminent lawless action standard (likely to incite immediate violence, or a threat) is unprotected speech. • Planned Parenthood v. American Coalition of Life Activists(ACLA) • Abortion providers website; strikethroughs. • In France and Germany, hate speech is illegal. • Note the use of US servers to bypass regulations.

12. Hate speech is protected by the First Amendment unless it • Is a true threat • Is fighting words • Unpopular • Vulgar • All of the above • A and B are true 30

13. Misc. Free Speech & Technology Issues: Video Games • Does a state law that restricts the sale or rental of violent video games to minors comport with the First Amendment? • 2001 7th Circuit decision American Amusement Machine Assn v. Kendrick • Indianapolis ordinance limited access to minors of games depicting violence by requiring owners of facilities w/ 5 or more game machines to have a separate area w/ parent or guardian accompaniment. • Ordinance found to violate 1st Amendment. • Brown v. Entertainment Merchants US S Ct 2011 • 2005 California law, section I of the opinion • Note how the language tracks the Miller test for obscenity.

14. Brown v. Entertainment Merchants US S Ct 2011 • “… video games qualify for First Amendment protection.” • Why? Games communicate ideas & social messages using plot, characters, music • “Esthetic and moral judgments … are for individuals … not governments” US v. Playboy Entertainment US S Ct 2000 • “And whatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.” Burstyn v. Wilson US S Ct 1952

15. Brown cont’d • “The most basic of those principles is this: ‘[A]s a general matter, . . . government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’” Ashcroft v. American Civil Liberties Union US S Ct 2002 • Scalia lists the only acceptable areas for gov’t to restrict content of speech: obscenity, incitement, & fighting words. • Scalia says last term’s holding in Stevens precludes adding other categories that legislatures deem to harmful. • US v. Stevens: http://en.wikipedia.org/wiki/United_States_v._Stevens • No new categories by virtue of a “simple balancing test”

16. Brown cont’d • CA law is trying to shoehorn in by looking like it’s a permissible obscenity statute. • “Violence is not a part of the obscenity that the Constitution permits to be regulated.” • Obscenity is only concerned about depictions of sexual conduct. • Distinguishing Ginsberg

17. A New Category for Governmental Regulation of Speech? • No, there will be no new category of content-based restrictions directed at children. • Court notes that there has been no historic (successful) prohibition of violence in stories directed at children. • Fairy tales, high school reading lists • Comic books • Interactive argument? • Choose Your Own Adventure • Judge Posner (all literature as interactive)

18. Content Regulations holding • Content regulations subjected to strict scrutiny • Compelling gov’t interest • Narrowly tailored • Ct says California does not meet its burden show direct causal link between violent games and harm to minors. • Lasting measurable effects? no • About the same as tv viewing of violence, other violence

19. Do you agree with the Supreme Court in Brown? • Yes, video games are speech and regulations prohibiting games should pass strict scrutiny. • No, while video games may be speech, violent games need to be kept from children any way that it can be. • I disagree with all the statements above. 30

20. Violence in Video Games –Recent Updates • In February 2014, the House Ways and Means Committee beganconsidering removing a tax credit. In the past, companies who make violent video games could be eligible for a tax credit related to research and development of technology to encourage businesses to operate in the US • This could case a rise in video game prices • http://www.gamespot.com/articles/violent-game-makers-would-be-denied-tax-credit-under-new-reform-blueprint/1100-6417989/

21. Private Censorship and First Amendment (pp. 260-262) • The First Amendment protects against government action. What if… • “If a private corporation gains sufficient power to effectively act like a government in censoring our speech, should the government intervene to protect the free speech rights of the general public?” • First Amendment interpretations: • Negative interpretation • (trending) • Affirmative interpretation • (was the mainstay)

22. Laws impacting communication conduits • Public forum doctrine • State must facilitate not discriminate • State Action Doctrine • Marsh v. Alabama(1946) Chickasaw, Alabama • Fairness Doctrine • Fiduciary (trust) for public interest • Must carry doctrine • Common Carriage Doctrine

23. My ISP removed my post. Have my First Amendment rights been violated? • Probably (yes) • Probably not 30

24. The forum moderator edited/removed my comments. Have my First Amendment rights been violated? • Probably (yes) • Probably not 30

25. Online Example: Anonymous Commercial Speech • Anonymous Speakers Online v. US D Ct for Nevada • 9th Federal Circuit, 2010 • Heighten standard protecting anonymous speech is appropriate for protecting political speech. • Lower standard is appropriate for plaintiffs needing to identify online commercial speakers.

26. It’s within someone’s First Amendment rights to offer illegal drugs for sale on his blog. • Yes • No 30

27. Hypothetical • Suppose you and your BFF have developed an invisibility cloak. It turns out that this cloak does not actually make the user invisible. Your friend creates a website to sell the cloak anyway.

28. Can you legally online advertise & sell your cloak as a working invisibility cloak? • Yes • No 30

29. Commercial Speech • Central Hudson v. Public Service Commission (1997) • Government regulation of commercial speech does not violate 1st Amendment if: • the speech concerns an illegal activity • The speech is misleading OR • The government’s interest is substantial, the regulation advances the interest and is narrowly tailored (≈ would pass strict scrutiny)

30. http://gawker.com/5932924/booming-silk-road-drug-market-boasts-22-million-per-year-in-sales-fancy-redesignhttp://gawker.com/5932924/booming-silk-road-drug-market-boasts-22-million-per-year-in-sales-fancy-redesign

31. Online Example: Illegal Activity • Online drug bazaar Silk Road • https://www.youtube.com/watch?v=aLa_HHa4d8U • http://nation.time.com/2013/10/02/alleged-silk-road-proprietor-ross-william-ulbricht-arrested-3-6m-in-bitcoin-seized/

32. Online Example: Misleading Speech Spam: unwanted/unsolicited email • Why is it called spam? • YouTube - Monty Python - Spam • Hormel’s position • The first spam message (1994) • Why is there so much spam? • Cheap • People respond to it. • http://www.wired.com/magazine/2010/09/pr_burningquestion_spam/ • January 2014 spam trends and stats

33. Early Spam Case: Cyber Promotions v. AOL (1996) • Facts: AOL’s servers swamped by spam; installed blockers. Cyber sued AOL. AOL countersued Cyber to recover costs of dealing with the spam. • Issue: whether Cyber has a 1st Amendment right to send the email. • Holding: AOL is not a state entity and as such is not subject to First Amendment challenges. Cyber has no 1st Amendment right to send unsolicited email to AOL members. $ to AOL.

34. Have you ever purchased something from an email that you received from a business you had never before used? • Yes, lots of times • Yes, a few times • Once • Never 30

35. CAN SPAM Act of 2003 • Controlling the Assault of Non-Solicited Pornography And Marketing Act of 2003 • Went into effect in 2004 • Impacts emails sent by businesses • 3 categories: transactional & relationship, commercial with mailing list consent, unsolicited • ↑ requirements for those not between people with a transactional relationship.

36. CAN SPAM: The Categories • Trx & relationship category messages: • Must include correct header info & must not disguise the ID of the computer sending message • Commercial • All of the above + mechanism to unsubscribe + postal address contact • Unsolicited • All of the above + “clear & conspicuous” notice that it’s an advertisement

37. CAN SPAM cont’d • Penalties: $250/mg up to $2m; criminal penalties for hackers & those who falsify headers • Weakness: • Makes sending spam legal if you meet the guidelines • Enforcement: • Unenforceable • Largely unenforced • Dan Balsam Hates Spam: http://www.youtube.com/watch?v=OfrBKNf_JPE

38. CAN SPAM Act: Which category of recipient has the most message requirements? • Transactional • Commercial • Unsolicited • None of these, the requirements are the same. 30

39. Canadian Anti-Spam Law (2014) • Went into effect July 1, 2014 • Applies to commercial emails, texts and social media messages sent to Canadian residents • Moves to an OPT IN model • Requiring express consent on part of recipient. • Conspicuous presentation • Fines: $200/each; Cap; up to $1 mil for indididual sender,$10 mil corporation

40. Central Hudson says regulations of commercial speech don’t violate 1stAmendment if • The commercial speech is misleading • The regulation passes strict scrutiny • The commercial speech concerns illegal activity. • All of the above 30