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Chapter 3: Freedom of Speech

Based on slides prepared by Cyndi Chie, Sarah Frye and Sharon Gray.

Fifth edition updated by Timothy Henry

Communication Paradigms

Controlling Speech

Posting, Selling, and Leaking Sensitive Material

Anonymity

The Global Net: Censorship and Political Freedom

Net Neutrality Regulations or the Market?

Regulating communications media

First Amendment protection and government regulation

Print media (newspapers, magazines, books)

Broadcast (television, radio)

Common carries (telephones, postal system)

Print:

Has strongest First Amendment protection

Trend toward fewer government restraints on printed words

Broadcast:

Government regulates structure of industry and content of programs

Government grants broadcast licenses

Federal Communication Commission (FCC) is the regulating body

Common carriers:

Provide medium of communication and make service available to everyone

Telecommunication Act of 1996

Changed regulatory structure and removed artificial legal divisions of service areas and restrictions on services that telephone companies can provide.

No provider or user of interactive computer services shall be treated as a publisher of any information provided by another information- content provider.

The Telecommunications Act significantly clarified the question of the liability of Internet Service Providers (ISPs) and other online service providers for content posted by third parties such as members and subscribers.

Service providers remain at risk in many countries. For example, the head of eBay in India was arrested because someone sold pornographic videos on eBay’s Indian site even though the video itself did not appear on the site and the seller violated company policy by selling them.

Communications Decency Act of 1996

First major Internet censorship law

Main parts ruled unconstitutional

Free-speech Principles

Written for offensive and/or controversial speech and ideas

Covers spoken and written words, pictures, art, and other forms of expression of ideas and opinions

Restriction on the power of government, not individuals or private businesses

Publishers do not have to publish material they consider offensive, poorly written, or unlikely to appeal to their customers for any reason. Rejection or editing by a publisher is not a violation of the writer’s First Amendment rights. Web sites, search engine companies, and magazines may decline specific advertisements if they so choose. That does not violate the advertiser’s freedom of speech.

Free-speech Principles

Supreme Court principles and guidelines

Advocating illegal acts is (usually) legal.

Anonymous speech is protected.

Some restrictions are allowed on advertising.

Libel and direct, specific threats are not protected.

Inciting violence is illegal.

Cases in recent years have gone against the trend of treating advertising as “second class” speech. Courts have begun to rule that restrictions on truthful advertising do indeed violate the First Amendment.

Similarly, since the 1970s, the government has severely regulated political campaign speech, but recent Supreme Court decisions have restored some First Amendment protection for it.

There have been serious attempts to limit or prohibit anonymity on the Internet.

Offensive speech: What is it? What is illegal?

Answers depend on who you are.

Most efforts to censor the Internet focus on pornographic and other sexually explicit material

The state of Georgia tried to ban pictures of marijuana from the Internet. A doctor argued for regulating medical discussion on the Net so that people would not get bad advice. The Chinese government restricts reporting of emergencies (such as major accidents or disasters) and how the government handles them. The French government approved a law banning anyone except professional journalists from recording or distributing video of acts of violence.

The distinctions between categories such as erotica, art, and pornography are not always clear, and different people have very different personal standards.

What was already illegal?

Obscenity

Depicts a sexual act against state law

Depicts these acts in a patently offensive manner that appeals to prurient interest as judged by a reasonable person using community standards

Lacks literary, artistic, social, political or scientific value

The First Amendment does not protect obscenity, but how does one determine something is obscene? The 1973 Supreme Court Miller v. California decision established a three-part guideline for determining whether material is obscene under law. The second point – the application of community standards – was a compromise intended to avoid the problem of setting a national standard of obscenity in so large and diverse a country. Thus, small conservative or religious towns could restrict pornography to a greater extent than cosmopolitan urban areas.

Straining old legal standards

The definition of “community”

The definition of “distribution”

A couple in California opened a computer bulletin board system (BBS) called Amateur Action that made sexually explicit images available to members. Most legal observers agreed the BBS operators would not have been guilty of a crime in California. A postal inspector in Memphis, Tennessee, working with a U.S. attorney there, became a member of the BBS and downloaded sexually explicit images in Memphis. The couple, who lived and worked in California, were prosecuted in Tennessee and found guilty of distributing obscenity under local community standards.

Did the BBS operators send obscene files to Tennessee? BBSs were accessed through the telephone system. The postal inspector in Tennessee initiated the telephone call to the BBS and initiated the transfer of the files. Critics of the prosecution of the BBS operators argued that it is as if the postal inspector went to California, bought pornographic pictures and brought them home to Memphis – then had the seller prosecuted under Memphis community standards.

Freedom of speech guidelines

Distinguish speech from action. Advocating illegal acts is (usually) legal.

Laws must not chill expression of legal speech.

Do not reduce adults to reading only what is fit for children.

Solve speech problems by least restrictive means.

Internet Censorship Laws & Alternatives

Communications Decency Act of 1996 (CDA)

Attempted to avoid conflict with First Amendment by focusing on children

Made it a crime to make available to anyone under 18 any obscene or indecent communication

Found to be unconstitutional

The worst material threatening children was already illegal

It was too vague and broad

It did not use the least restrictive means of accomplishing the goal of protecting children

The CDA was found unconstitutional in American Civil Liberties Union et al. v. Janet Reno. That decision established that “the Internet deserves the highest protection from government intrusion.”

The courts found that the then newly developing filtering software was less restrictive and more desirable than censorship.

Internet Censorship Laws & Alternatives

Child Online Protection Act of 1998 (COPA)

More limited than CDA

Federal crime for commercial Web sites to make available to minors material “harmful to minors” as judged by community standards

Found to be unconstitutional

It was too broad

It would restrict the entire country to the standards of the most conservative community

It would have a chilling effect

Law found to be too broad; would threaten art, news, and health sites.

Courts noted that because the Web is accessible everywhere, the community-standards provision would restrict the entire country to the standards of the most conservative community.

COPA would restrict access to a substantial amount of online speech that is lawful for adults and would have an unconstitutional chilling effect on free speech.

After more than 10 years of lawsuits and appeals, the Supreme Court declined to hear the last government appeal, and COPA died in 2009.

Internet Censorship Laws & Alternatives

Children's Internet Protection Act of 2000 (CIPA)

Requires schools and libraries that participate in certain federal programs to install filtering software

Upheld in court

Does not violate First Amendment since it does not require the use of filters, impose jail or fines

It sets a condition for receipt of certain federal funds

Outside of public schools and libraries, the trend of judicial decisions is to give the Internet First Amendment protection similar to that of print media, that is, the highest degree of protection.

Video Games

A California law banned sale or rental of violent video games to minors.

In 2011, the Supreme Court of California ruled it violated the First Amendment.

Some argue that the interactivity of video games has a more powerful impact on children than passively watching television or reading a violent story. Others point out that children have played at killing each other for generations. Does falling down “dead” on the grass compare to the repeated, explosive gore of a video game?

The California Supreme Court ruled that “disgust is not a valid basis for restricting expression.” The Court considered research on the impact of video games on children’s feelings of aggression and found that the impacts were small and differed little from the impact of other media.

Alternatives to censorship

Filters

Blocks sites with specific words, phrases or images

Parental control for sex and violence

Updated frequently but may still screen out too much or too little

Not possible to eliminate all errors

What should be blocked?

Alternatives to censorship

Policies

Commercial services, online communities, and social networking sites develop policies to protect members.

Video game industry developed rating system that provides an indication for parents about the amount of sex, profanity, and violence in a game.

Discussion Question

Why is ‘least restrictive means’ important?

Do you consider the Internet an appropriate tool for young children? Why or why not?

Child Pornography

Includes pictures or videos of actual minors (children under 18) engaged in sexually explicit conduct.

Production is illegal primarily because of abuse of the actual children, not because of the impact of the content on a viewer.

Laws against creating, possessing, or distributing child pornography predate the Internet. They cover a broad range of images, many of which would not meet the definition of illegally obscene material if the person depicted were an adult.

The mere possession of child pornography does not directly abuse children, but the Supreme Court accepted the ban on possession on the argument that the buyers or users of the images encourage their production.

Law enforcement agents use surveillance, search warrants, sting operations, and undercover investigations to build their cases and make arrests.

Child Pornography

Congress extended the law against child pornography to include “virtual” child pornography.

The Supreme Court ruled the law violated the First Amendment.

The Court accepted a later law providing harsh penalties for certain categories of computer-generated and cartoon-type images.

“Virtual” child pornography includes computer-generated images that appear to be minors, as well as other images where real adults appear to be minors.

Sexting

Sending sexually suggestive or explicit text or photos, usually by cellphone or social media

Can meet the definition of child pornography if subject is under 18

Many young people (like many adults) do not think about how quickly something intended for one person or small group spreads to a large audience, or how difficult it is to remove something from cyberspace once it is out there.

Possession of child pornography is illegal, so children who have pictures of friends under 18 on their phones that prosecutors think meet the definition of child pornography are potentially in violation. Should it be a criminal felony with severe penalties that can include being put in a sex-offender database for many years?

What other mechanisms (besides child pornography laws) can we use to discourage sexting?

Legislatures in a few states have revised their state’s law in a variety of ways to reduce the penalties for sexting. Some have made it a misdemeanor, rather than a felony, if a younger person sends an illegal photo to another young person of similar age. Some have reduced or eliminated penalties if photos were distributed (among minors) with the consent of the person in the picture.

Spam

What’s the problem?

Loosely described as unsolicited bulk email

Mostly commercial advertisement

Angers people because of content and the way it’s sent

Free speech issues

Spam imposes a cost on recipients

Spam filters do not violate free speech (free speech does not require anyone to listen)

The term spam, in the context of electronic communications, was adopted in the 1990s to mean unsolicited bulk email. It now applies to text messages, tweets, and phone calls as well.

Spam developed because email is extremely cheap compared to printed direct-mail advertising.

Spam

Anti-spam Laws

Controlling the Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM Act)

Targets commercial spam

Criticized for not banning all spam, legitimized commercial spam

The CAN-SPAM act covers labeling of advertising messages (for easier filtering), opt-out provisions, and methods of generating emailing lists.

Commercial messages must include:

valid mail header information (that is, not faking the “From” line to disguise the sender is prohibited)

valid return address

clear and honest subject lines

“Free speech is enhanced by civility.”

-Tim O’Reilly

Policies of large companies

A Web site with risks

Do search engine providers have a social or ethical obligation to provide complete search results to all queries, or do they have a social or ethical obligation to omit very offensive sites from search results?

People should consider potential risks of posting material. They should consider unintended readers or users and should consider ways to prevent access by unintended users.

Leaks

Type of material

Value to society

Risks to society and individuals

The Web is a convenient and powerful tool for whistleblowers. Some leaks serve valuable social purposes.

We should remember that leaking begins with a strong ethical case against it. Leaked documents are often obtained by hacking into someone else’s computer or by an insider who violates a confidentiality agreement. Freedom of speech and press do not legitimate stealing files and publishing them. This does not mean that leaking is always wrong. It means that the reasons for leaking the material must be strong enough to overcome the ethical arguments against it, and the publisher of the leaked material must handle it responsibly.

Documents that include significant evidence of serious wrongdoing are reasonable candidates for leaks.

Leaks

Examples

WikiLeaks

Climategate

WikiLeaks released U.S. military documents related to the wars in Iraq and Afghanistan, including videos of shooting incidents. When a long, costly war is controversial, does the public have a right to see the internal reports and vivid video that can inform debate? WikiLeaks released a large set of confidential U.S. diplomatic cables that included, among much else, discussions of the personalities of foreign leaders.

Climategate emails leaked in 2009 and 2011 showed that researchers at the University of East Anglia pursued a variety of methods to deny access to their temperature data by scientists who question some aspects of global warming. The emails also described efforts to stop scientific journals from publishing papers by scientists who are considered skeptics about global warming. Investigations by the British government and other groups concluded that the emails did not show scientific misconduct, but the research center had broken Britain’s Freedom of Information Act. The reports criticized various procedures the research group used but not its scientific conclusions. Some emails discussed criticisms and uncertainties related to details of the argument that human activity causes global warming. Researchers discuss such uncertainties in papers and conferences, but news reports often exclude them. Is it important for the public to know what is in the emails? What criteria argue for or against these leaks?

When evaluating the ethics of leaking documents on political or highly politicized issues, it can be difficult to make judgments that are independent of our views on the issues themselves.

Leaks

Potentially dangerous leaks

Releasing a huge mass of documents

WikiLeaks released a secret U.S. government cable listing critical sites, such as telecommunications hubs, dams, pipelines, supplies of critical minerals, manufacturing complexes, and so on, where damage or disruption would cause significant harm. Some might defend publication of the list by arguing that it encourages better protection of the sites or that terrorists already know about the sites, but the risks seem to overwhelm any public value of this leak.

Some cables named whistleblowers, confidential informants, human rights activists, intelligence officers and Chinese people (in business, academia, and the Chinese government) who provided information about social and political conditions in China. The release of these documents put those people at risk.

The U.S. government documents that WikiLeaks made public included approximately 250,000 diplomatic cables and thousands of other documents. The Climategate leaks included thousands of documents. Did the leakers review and evaluate all the documents they released to be sure they met reasonable criteria to justify the leaks? Should they have?

In the spirit of the Web, leakers can now let the public search through the documents for those of special interest. This can be valuable, but it can be wrong. Recall that an important justification for leaking documents that belong to someone else is that the leaker knows they contain information that the public should see. On the other hand, selective disclosure can distort information by presenting it without context.

Discussion Question

Does the value of informing the public of controversial and sensitive information outweigh the dangers and risks?

Leaks

Responsibilities of operators of Web sites for leaks

A person or organization establishing a site to publish leaked documents that serve an important public purpose should consider the various points already raised, but also has responsibilities to avoid abuse of the site. The site must have sufficient security to protect whistleblowers – the people who supply the documents. There should be a well-thought-out policy about how to handle requests or demands from law enforcement agencies (of various countries) for the identity of a person supplying documents. Verification of the authenticity and validity of leaked documents, while it can be difficult, is the responsibility of the site operators.

Freedom of speech and of the press leave us with the ethical responsibility for what we say and publish.

Common Sense and Federalist Papers

Thomas Paine’s name did not appear on the first printings of Common Sense, the book that roused support for the American Revolution.

The Federalist Papers, published in newspapers in 1787 and 1788, argued for adoption of the U.S. Constitution. The authors, Alexander Hamilton, James Madison, and John Jay, used the pseudonym, Publius.

Positive uses of anonymity

Protect political speech

Protect against retaliation and embarrassment

Anonymizing services

used by individuals, businesses, law enforcement agencies, and government intelligence services

Anonymizers are services available to send anonymous email. Reporters, human rights activists, citizens in repressive countries, and ordinary people use anonymous email to protect themselves.

Businesses, law enforcement agencies, and government intelligence services also use anonymizers. A business might want to keep its research and planning about new products secret from competitors. If competitors can get logs of Web sites that a company’s employees visit, they might be able to figure out what the company is planning.

Anonymous Web surfing aids law enforcement investigations. Suppose law enforcement agents suspect a site contains child pornography, terrorist information, copyright-infringing material, or anything else relevant to an investigation. If they visit the site from their department computers, they might be blocked or see a bland page with nothing illegal. (Web sites can determine the IP addresses of a visitor and can block access from specified addresses or put up alternate pages for those visitors.)

Negative uses of anonymity

protects criminal and antisocial activities

aids fraud, harassment, extortion, distribution of child pornography, theft, and copyright infringement

masks illegal surveillance by government agencies

Glowing reviews (such as those posted on eBay or Amazon.com) may actually be from the author, publisher, seller, or their friends.

U.S. and European countries are working on laws that require ISPs to maintain records of the true identity of each user and maintain records of online activity for potential use in criminal investigations.

Is anonymity protected?

Many legal issues about anonymity are similar to those discussed in Chapter 2.

Should ISPs be required to notify a member when the ISP receives a subpoena for the member’s identity, so the person has an opportunity to fight a subpoena in court?

Should it be the responsibility of law enforcement to develop tools to find criminals who hide behind anonymity, or should the task be made easier by requiring that we identify ourselves?

Does the potential for harm by criminals who use anonymity to hide from law enforcement outweigh the loss of privacy and restraint on freedom of speech for honest people who use anonymity responsibly?

Discussion Questions

Where (if anywhere) is anonymity appropriate on the Internet?

What are some kinds of Web sites that should prohibit anonymity?

Where (if anywhere) should laws prohibit anonymity on the Internet?

Tools for communication, tools for oppression

Authoritarian governments have impeded flow of information and opinion throughout history.

The vibrant communication of the Internet threatens governments in countries that lack political and cultural freedom.

Email and fax machines played a significant role during the collapse of the Soviet Union and the democracy demonstrations in China’s Tiananmen Square. Facebook and cellphones were key tools in organizing the 2011 Arab Spring.

Dissidents in Iran, Vietnam, various Middle Eastern countries, and elsewhere use Skype to communicate because of its strong encryption. Some countries ban Skype. Others subvert it. Before the revolution in Egypt in 2011, the Egyptian government, for example, used spyware to intercept Skype communications. They did not break Skype’s encryption scheme. Instead, it appears they planted spyware on people’s computers that intercepted a communication before it was encrypted on the sender’s computer or after it was decrypted on the recipient’s computer. During the revolution, the government temporarily shut down the Internet and cellphone service entirely.

In some countries, government agents, using social media, pretend to be dissidents and distribute information about planned protests; the police arrest anyone who comes.

Tools for communication, tools for oppression

Attempts to limit the flow of information on the Internet similar to earlier attempts to place limits on other communications media

Some countries own the Internet backbone within their countries and block specific sites and content at the border

Some countries ban all or certain types of access to the Internet

The government of Iran, at various times, blocked the sites of amazon.com, Wikipedia, the New York Times, and YouTube. It also blocked a site advocating the end of the practice of stoning women. Generally, the government says it blocks sites to keep out decadent Western culture.

Tools for communication, tools for oppression

Avoiding censorship: the global nature of the Net allows restrictions (or barriers) in one country to be circumvented by using networks in other, less restrictive countries.

Creating censorship: the global nature of the Net makes it easier for one nation to impose restrictive standards on others.

“The office of communications is ordered to find ways to ensure that the use of the Internet becomes impossible. The Ministry for the Promotion of Virtue and Prevention of Vice is obliged to monitor the order and punish violators.”

- Excerpt from Taliban edict banning Internet use in Afghanistan (2001)

Discussion Question

Will the Internet and related communication technologies be tools for increasing political freedom, or will they give more power to governments to spy on, control, and restrict their people?

Aiding foreign censors and repressive regimes

Yahoo and French censorship

Yahoo, eBay and others make decisions to comply with foreign laws for business reasons

Skype and Chinese control

Chinese government requires modified version of Skype

To operate in China, the Chinese government requires Skype work in a joint venture with a Chinese communications company (TOM), use a modified version of the Skype software, and filter out sensitive topics from text chat. According to a study by a Canadian university, the modified software allowed widespread surveillance, and TOM stored information from millions of messages.

Aiding foreign censors and repressive regimes

Companies who do business in countries that control Internet access must comply with the local laws

Google argued that some access is better than no access

In 2006, Google disappointed many free speech and human rights advocates by introducing a Chinese version in China, google.cn, that would comply with Chinese law. Its search results did not show sites with banned content.

Google co-founder Sergey Brin, who was born in the Soviet Union and experienced totalitarian government, was uneasy with the 2006 censoring decision. Google stopped operating the censored search engine in 2010. The company withdrew most operations from China but offered its search service through Hong Kong, which, though part of China, has different laws. The main impetus for the change was the highly sophisticated hack attack originating in China on Google and about 30 other companies. A primary goal of the attack appeared to be access to Gmail accounts of Chinese human rights activists.

Discussion Questions

When U.S. or other non-Chinese companies set up branches in China and comply with restrictive laws, should we view them as providing more access to information in China than would otherwise exist, albeit not as much as is technically possible?

Should we view them as partners in the Chinese government’s ethically unacceptable restriction on debate and access to information by its citizens?

Should we view them as appropriately respecting the culture and laws of the host country?

Discussion Questions

What impact does the global net have on free speech?

Does censorship in other countries have an impact on free speech in the U.S.?

How does free speech in ‘free countries’ impact more restrictive countries?

Selling surveillance tools

Repressive governments intercept citizens’ communications and filter Internet content.

Companies in Western democracies sell them the sophisticated tools to do so.

The companies say the tools are for criminal investigations.

Shutting down communications in free countries

Public safety

In the U.S., the Supreme Court would probably declare unconstitutional a law that authorized a government agency to order a private communications service to shut down.

Does shutting down communication services in free countries give excuses to dictators in unfree countries?

Mobs used cellphones to coordinate attacks in Britain. People in the government (and others) argued that Research in Motion should shut down BlackBerry Messenger. It did not.

Shortly after the violence in England, the Bay Area Rapid Transit system (BART) in the San Francisco Bay Area shut off wireless service at some of its subway stations after learning of a plan to “use mobile devices to coordinate…disruptive activities and communicate about the location and number of BART Police.” BART is a government agency. It owns the communications equipment and said its contracts with cell service companies allow it to shut off the service when it thinks necessary. Did it threaten freedom of speech, or was it a legitimate safety decision.

Net Neutrality

Refers to a variety of proposals for restrictions on how telephone and cable companies interact with their broadband customers and set fees for services.

There are two different but related issues: (1) whether the companies that provide the communications networks should be permitted to exclude or give different treatment to content based on the content itself, on the category of content, or on the company or organization that provides it, and (2) whether the companies that provide the communications networks should be permitted to offer content providers and individual subscribers different levels of speed and priority at different price levels. The latter is sometimes called “tiered” service.

Net Neutrality

Argue for equal treatment of all customers

Market

Flexibility and market incentives will benefit customers

Net Neutrality

Equal treatment includes charging all customers the same rate for sending information over the Internet and not giving priority to any particular content or customer.

Would restore part of the concept of common carrier (as described in Section 3.1), based partly on the view that telephone companies (now telephone and cable) have a monopoly on transmission of information and that companies that control transmission should not be permitted to control access to content as well.

Many Internet content providers and large companies such as eBay, Microsoft, Amazon, Netflix, and Google, argue for net-neutrality rules. Without the rules, some argue, they will have to pay higher rates and communications companies will give special treatment to their own content providers. Some groups argue that allowing communications companies to set varying rates would be devastating for the Internet as it would squeeze out independent voices. Only big companies and organizations will be able to afford the prices necessary to ensure that their content moves fast enough to be relevant.

Market

Charging different rates for products and services is not unusual and makes economic sense in many areas.

Before the FCC relaxed older regulations (in 2003-2005), telecommunications companies had little incentive to invest in broadband capacity. In the few years afterward, they invested hundreds of billions of dollars. Speeds increased, prices fell, and the added capacity was essential for new phenomena such as streaming video.

Opponents of additional regulations say there should be no major new regulation without evidence of harm in the current system.

Discussion Questions

Should companies be permitted to exclude or give special treatment to content transmitted based on the content itself or on the company that provides it?

Should companies be permitted to provide different levels of speed at different prices?

The huge surge of traffic due to smartphones and tablets heightened issues of net neutrality. In 2010, video made up more than 75% of mobile data traffic. Does it make sense to treat such traffic differently? Should it have high priority (like voice calls) because delays are annoying to the customer? Should it have lower priority because it uses so much bandwidth? Should service providers make such decisions, or should Congress and the FCC make them?

When people watch a video on a smartphone, they often do not watch the whole thing. A company developed techniques to send a video to the user in segments as he or she watches (without increasing delays), rather than sending the entire video as fast as possible. The company said this approach could cut data transfer in half. Can regulators write net neutrality rules that allow and encourage such technological solutions for reducing traffic, or will rigid rules stifle or discourage them?