Free Speech & Cyberspace: part 3

1. Free Speech & Cyberspace:part 3 Inciteful speech, hate speech, threatening speech Anonymous speech, Student & Employee Speech, Video Games as Speech Commercial Speech & Spam

2. Foundations of Free Speech • Careful reading of pp. 244-249 • Look thru the list of the kinds of speech people have wanted to control or suppress: meanings, protection or no & reasoning. (Not all of these are protected)

3. 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: • (1919) p. 247-9Clear and present danger rule from Schenck v. US • "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: • (1969) imminent lawless action test from Brandenburg v. Ohio • 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. Discussion Examples • Lady threatens cop • http://www.firstamendmentcenter.org/her-cop-cussing-ruled-fighting-words-not-free-speech • Threatening presidential candidate Obama on yahoo message board: • http://www.time.com/time/nation/article/0,8599,2084921,00.html • Terry Jones the Koran burning preacher • F* the Draft jacket: Cohen v. California, http://www.firstamendmentcenter.org/40-years-ago-a-ruling-that-still-rings-today • Tweets that threaten as free speech: 8,000 “troublesome” tweets at Alyce • http://venturebeat.com/2011/12/16/tweets-online-stalking/ • Flash mobs: • http://www.usatoday.com/news/nation/2011-08-18-flash-mobs-police_n.htm

7. Harassment & Bullying Issues • As Bullies Go Digital, Parents Play Catch-Up http://nyti.ms/hSQbkF • There’s Only One Way to Stop a Bully http://nyti.ms/9Yu0pY

8. Misc. Free Speech & Tech. Issues:Wikileaks, pp. 241-243 • Class discussion / overview • Julian Assange • Self-described hacker/journalist; editor in chief of Wikileaks • Currently fight extradition from UK to Sweden for prosecution of possible sex crimes • PFC Bradley Manning • Held w/ during pre-trial motions for trial in military court • UCMJ Sections 92 & 134 Assange on the Colbert Report CURRENT: http://www.reuters.com/article/2012/11/10/us-usa-wikileaks-manning-idUSBRE8A901O20121110

9. 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) • Nuremberg Files, abortion providers website. • In France and Germany, hate speech is illegal. • The use of US servers to bypass regulations.

10. More on Threatening Speech:The Jake Baker case Class discussion: case study materials 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

11. 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

12. Misc. Free Speech Issue:Students’ right to free speech • “Faked” profiles • Mix of rulings in school administrator cases • Fake MySpace profile for a Texas principal Draker v. Schreibner • Facebook parody profile of principal Trosch by high school student Layshock v. Hermitage School District • 14 y o middle school student created fake MySpace J.S. v. Blue Mountain School • Application of Tinker v. Des Moines (1969 US S. Ct. case). Black armbands & school ban • Opinion piece: • Sophomoric free speech, http://usat.me?39347532

13. Misc. Free Speech Issue:Employee’s right to free speech Workplace rants on social media are headache for companies The Teacher Cases: • PA teacher suspended (with pay??!!) for calling her students “lazy whiners” http://usat.me?43808478 • NJ 1st grade teacher says she “felt like a warden overseeing future criminals” http://tinyurl.com/3bngqhb Employee examples: • Policies barring Eee from depicting companies “in any way” on social media sites • EMT fired b/c crit. she posted on fb, “a 17”: http://nyti.ms/djca6U • Federal right to form/discuss unions & working conditions

14. Misc. Free Speech Issue:Anonymous Speech • Anonymous publishing as a First Amendment right • McIntyre v. Ohio Elections Commission US S. Ct 1995 • http://gilc.org/speech/anonymous/ • Online speech, accomplished using remailers • A series of servers that strip our identifying info & sub in anonymous code or random numbers. (chained remailing)

15. Does the First Amendment give you the right to speak anonymously online? • Yes, but you do not have the right to speak falsely & injuriously. Melvin v. Doe • Defamation example below:

16. Can you sue Twitter & Facebook over a member’s defamatory comments? See § 230 of the Federal Communications Decency Act http://www.eff.org/issues/bloggers/legal/liability/230

17. Private Censorship and First Amendment (pp. 260-262) • My ISP removed my post. Have my First Amendment rights been violated? • The forum moderator edited/removed my comments. Have my First Amendment rights been violated? • First Amendment interpretations: • Negative interpretation • Affirmative interpretation • Public forum doctrine • State Action Doctrine • Fairness Doctrine • Must carry doctrine • Common Carriage Doctrine

18. Misc. Free Speech & Technology Issues: Video Games • See Case 7.6 pp. 249-50 • 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.

19. 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

20. 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”

21. 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

22. 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)

23. 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

24. Misc. Free Speech & Technology Issues:Commercial Speech • Central Hudson v. Public Service Commn. (1997) • Government regulation 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.

25. Pre-spam Law • Traditional mailings: • Rowan v. US Post Office “vendor has no constitutional right to send unwanted material to someone’s home” (1970) • Faxes: • Telephone Consumer Protection Act: deals with unsolicited faxes (1991)

26. Email & Spam • Spam statistics: • https://www.trustwave.com/support/labs/spam_statistics.asp • http://royal.pingdom.com/2011/01/19/email-spam-statistics/ • Spam: unwanted/unsolicited email • YouTube - Monty Python - Spam • Hormel’s position • The first spam message (1994)

27. Why so much spam? • Effective $ per $ form of advertising • Ex. For $500-2k reach a million people compared to $230k for bulk mail costs • NY Times article says est. to break even is a 1 in 100k response • WSJ July 2009 article cites 800 person survey: • One out of Six Responded to Spam • July 2009 MAAWG study: • 12% of e-mail users have actually tried to buy stuff from spam

28. 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.

29. 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.

30. CAN SPAM cont’d • Penalties: $250/mg up to $2m; criminal penalties for hackers & those who falsify headers • Weakness: • opt out problems • Makes sending spam legal if you meet the guidelines • Unenforceable • Largely unenforced

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

33. A few more SPAM cases • http://www.msnbc.msn.com/id/26676107/ VA case striking down VA law. • http://www.techdirt.com/articles/20081124/1616292938.shtml Facebook Wins Nearly $1 Billion From Spammer Who Will Never Pay Up • Man pleads not guilty to running vast spam network http://usat.me?41498420 • E-Mail Spam Falls After Russian Crackdown 1/5 down http://nyti.ms/cEsPHi

34. Regulating • Spam –who/what can stop it • The marketplace • Government • Potential for political censorship (p. 254) • Bottom-up approach – shifting control from the state to the individual to filter • Lessig fears that a school or workplace will use their standards on unsuspecting users • See page 253 (filtering) • The question: Should control of the Internet be in the hands of private parties or should it be a top-down approach?

35. Misc. Free Speech Issue:Net Neutrality pp. 263-4 • What does that term mean? • Controversy in America • Divided FCC adopts rules to protect Web traffic http://usat.me?41894204

36. Misc. Free Speech & Technology Issues: Blogs • “Congress shall make no law . . . abridging the freedom of speech, or of the press. . .” • Are bloggers journalists? Do they deserve the protection offered to journalists? • Ex. Unreleased Apple product, Ct ruling • http://www.jstor.org/stable/40239667