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Pornography in Cyberspace Before we discuss the U.S. Congress’s efforts to regulate internet speech, we should be clear about legal standards pertaining to pornographic and obscene speech. Obscene speech is completely unprotected by the First Amendment and is banned for everyone. In Miller v.

(1973) the Supreme Court established a three-part test to determine whether or notCalifornia speech falls in the category of obscenity. To meet this test, speech had to satisfy the following conditions: (1) it depicts sexual (or excretory) acts explicitly prohibited by state law; (2) it appeals to prurient interests as judged by a reasonable person using community standards; and (3) it has no serious literary, artistic, social, political, or scientific value. Child pornography that depicts children engaged in sexual activity is also illegal under all circumstances.

Pornography, that is, sexually explicit speech excluding obscene speech and child pornography, can be regulated and banned, but only for minors. The relevant legal case is

, which upheld New York’s law banning the sale of speech “harmful toGinsberg v. New York minors” to anyone under the age of 17. The law in dispute in the Ginsberg case defined “harmful to minors” as follows: “that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, when it: (1) predominantly appeals to the prurient, shameful, or morbid interests of minors, and (2) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors, and (3) is utterly without redeeming social importance for minors.” Although state legislatures have applied this case differently to their statutes prohibiting the sale of material harmful to minors, these criteria can serve as a general guide to what we classify as

, which is considered off limits to children under the age of 17.Ginsberg speech

Public Policy Overview The Communications Decency Act

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A l l r i g h t s r e s e r v e d . M a y n o t b e r e p r o d u c e d i n a n y f o r m w i t h o u t p e r m i s s i o n f r o m t h e p u b l i s h e r , e x c e p t f a i r u s e s p e r m i t t e d u n d e r U . S . o r a p p l i c a b l e c o p y r i g h t l a w .

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The pervasive presence of obscene and pornographic speech on the internet is a challenge for lawmakers. As the quantity of communications grows in the realm of cyberspace there is a much greater likelihood that people will become exposed to forms of speech or images that are offensive and potentially harmful. By some estimates, the internet has over 100,000 sites offering illegal child pornography, while monthly pornography downloads amount to 1.5 billion. Hence the understandable impulse of governments to regulate and control this form of free expression on the internet in order to contain its negative side effects. The Communications Decency Act (CDA) represented one such futile, and some say misguided, attempt at such regulation.

The CDA included several key provisions that restricted the distribution of sexually explicit material to children. It imposed criminal penalties on anyone who “initiates the transmission of any communication which is . . . indecent, knowing that the recipient of the communication is under 18 years of age.” It also criminalized the display of patently offensive sexual material “in a manner available to a person under 18 years of age.”

Defenders of the CDA contended that this was an appropriate way of channeling pornographic or Ginsberg speech on the internet away from children. It did not seek to ban adults from viewing such speech. Rather, it was an attempt to zone the internet just as we zone physical environments. According to one supportive brief: “The CDA is simply a zoning ordinance for the Internet, drawn with sensitivity to the constitutional parameters the Court has refined for such regulation. The Act grants categorical defenses to those who reasonably safeguard indecent material from innocent children—who have no constitutional right to see it—channeling such material to zones of the Internet to which adults are welcome but to which minors do not have ready access.” What this brief is referring to is an “out” for internet speakers provided by the CDA: if they took “reasonably effective” measures to screen out children, they could transmit indecent material.

Support for the CDA was thin, however, and it was quickly overwhelmed by strident and concerted opposition. An alliance of internet users, internet service providers (ISPs), and civil libertarian groups challenged the legislation as a blatant violation of the First Amendment right of free speech. This coalition was spearheaded by the American Civil Liberties Union (ACLU) and the case became known as .Reno v. ACLU

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There were obvious problems with the CDA that the plaintiffs in that lawsuit immediately seized on. The most egregious weakness was that this law might cast the net of censorship too far by including works of art and literature and maybe even health-related or sex education information. The category of indecent speech was not well defined by Congress and could include forms of speech that went beyond Ginsberg speech. The law was also vague. What did it mean to take “reasonably effective” measures to screen out children? According to Lessig, “The architectures that existed at the time for screening out children were relatively crude, and in some cases, quite expensive. It was unclear whether, to satisfy the statute, they had to be extremely effective or just reasonably effective given the state of the technology.”

Also, of course, even if the CDA were enacted it would have a limited impact on the availability of pornography in cyberspace. It could not control sexual content on the internet originating in other countries, nor could it halt pornography placed on the internet by anonymous remailers, which are usually located off shore and beyond the reach of U.S. regulators. The bottom line is that because the internet is a global network, localized content restrictions enacted by a single national government to protect children from indecent material would not be fully effective.

A panel of federal judges in Philadelphia ruled unanimously that the CDA was a violation of the First and Fifth Amendments. The three-judge panel concluded that “just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects.” The Justice Department appealed the case, which then became known as , but to no avail. The Supreme Court agreedReno v. ACLU with the lower court’s ruling, and in June 1997, declared that this federal law was unconstitutional. The court was especially concerned about the vagueness of this content-based regulation of speech. According to the majority opinion written by Justice Stevens, “We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another.” Stevens also held that the free expression on the internet is entitled to the highest level of First Amendment protection. This is in contrast to the more limited protections for other more pervasive media such as radio and broadcast and cable television where the court has allowed government-imposed censorship. In making this important distinction, the court assumes that computer users have to actively seek out offensive material, whereas they are more likely to encounter it accidentally on television or radio if it were so available.

Children’s Online Protection Act

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Most of those involved in the defeat of the CDA realized that the issue would not soon go away. Congress, still supported by public opinion, was sure to try again. And in October 1998, they did try again, passing an omnibus budget package that included the Child Online Protection Act (COPA), a successor to the original CDA, which became known in legal circles as “CDA II.” The law was signed by President Clinton and, like its predecessor, it was immediately challenged by the ACLU. CDA II would make it illegal for the operators of commercial websites to make sexually explicit materials harmful to minors available to those under 17 years of age. Commercial website operators would be required to collect an identification code, such as a credit card number, as proof of age before allowing viewers access to such material.

The ACLU and other opponents claimed that the law would lead to excessive self-censorship. CDA II would have a negative impact on the ability of these commercial websites to reach an adult audience. According to Max Hailperin, “There is no question that the COPA impairs commercial speakers’ ability to cheaply, easily, and broadly communicate material to adults that is constitutionally protected as to the adults (nonobscene), though harmful to minors.” This law was more narrowly focused than CDA I; it attempts to define objectionable sexual content more carefully. Such content would lack “serious literary, artistic, political or scientific value” for those under the age of 17. But the law’s critics contend that it is still worded too broadly. Those critics worried about what would happen if the law were arbitrarily or carelessly applied. Would some sites offering sexual education information, for instance, be accused of violating the law? Also, it could be plausibly argued that there is a problem in requiring adults to present identification to exercise their right to access speech that is protected by the First Amendment.

In February 1999, a federal judge in Philadelphia issued a preliminary injunction against COPA, preventing it from going into effect. This judge accepted the argument that the law would lead to self-censorship and that “such a chilling effect could result in the censoring of constitutionally protected speech, which constitutes an irreparable harm to the plaintiffs.” The ACLU won its case in Federal District Court in Philadelphia and in the U.S. Court of Appeals for the Third Circuit. In 2002, the U.S. Supreme Court remanded the case to the Third Circuit, which again found COPA unconstitutional because it did not satisfy the First Amendment’s “least restrictive means” test. But the case, now called , was appealed once again to theAshcroft v. ACLU Supreme Court. That court decided in 2004 to keep in place the district court’s order blocking the enforcement of COPA. The Supreme Court concluded that COPA could inadvertently prevent adults from accessing legal pornography online and that minors could be adequately protected by internet filtering software.

Children’s Internet Protection Act

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Despite these defeats, Congress did not abandon its efforts to contain the spread of pornography in cyberspace. This time the legislative effort was led by Senator John McCain, who worked ardently to pass the Children’s Internet Protection Act (CIPA). This bill was signed into law on December 21, 2000, by President Clinton and it took effect in April 2001. It represented a decisive change in the government’s strategy. This time the government hoped to rely on private surrogates, libraries, and schools to regulate speech harmful to minors through the use of filters that block out objectionable content. This law was linked to the federal government’s E-rate program, which provided an opportunity for schools and libraries to be reimbursed for the costs of connecting to the internet or to be subsidized for other telecommunications expenses. The law mandated that, for libraries seeking these funds, computer terminals used by all library patrons (i.e., adults and children) must have filters that block internet access to visual images that are obscene or involve any sort of child pornography. In addition, according to Kaplan, “For library computer terminals used by children under 17, libraries have to screen out these two categories of material plus a third one: visual material that is ‘harmful to minors,’ such as sexually explicit images without social or educational value that are obscene for children but legally protected for adults.” Public schools seeking E-funds were required to implement the same type of filtering scheme. The blocking mechanism may be overridden for valid research purposes.

Like its predecessors, CIPA was immediately challenged by libraries, educational leaders, and civil libertarians. In April 2001, a group of libraries and library associations (including Multnomah County Public Library, the Connecticut Library Association, the Maine Library Association, and the Santa Cruz Public Library Joint Powers Authority) filed a lawsuit against this legislation. This suit, ., was filed in the U.S. District Court for the EasternMultnomah Public Library et al. v. U.S District of Pennsylvania where other prominent free speech cases have been heard. The suit argued that CIPA was unconstitutional: “By forcing public libraries to install such technology, CIPA will suppress ideas and viewpoints that are constitutionally protected from reaching willing patrons. CIPA thus imposes a prior restraint on protected speech in violation of the Constitution.” The suit also contended that CIPA was “arbitrary and irrational because existing technology fails to block access to much speech that Congress intended to block, and thus will not protect library patrons from objectionable content.” Blocking mechanisms simply cannot block all speech that is obscene, child pornographic, and harmful to minors.

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In the summer of 2002, a federal judicial panel of the U.S. District Court for the Third Circuit struck down the law. The court concluded that sections of this law were “invalid under the First Amendment.” The government appealed the case to the Supreme Court, and in June 2003 that court vacated the district court’s ruling and upheld CIPA. In its 6–3 decision the Supreme Court concluded that limitations imposed by CIPA on internet access were equivalent to limitations on access to books that librarians choose to acquire or not acquire. There was consensus that filters are inaccurate instruments for restricting the access of children to pornographic material, because those filters sometimes block sites that adults have a right to see. Nonetheless, the majority of the Supreme Court concluded that First Amendment rights were not being infringed by this law, as long as adults could request that the filters be disabled without unnecessary delay.

The CIPA statute, now the law of the land in the United States, reframed the debate about the government role in regulating the internet; the government shifted its strategy from direct to indirect regulation, relying on the private sector to do the work of curbing pornography. But should the government offer private parties this for their role in censoring thequid pro quo internet because more direct regulatory efforts seem to be unconstitutional? The Multnomah case challenging CIPA also explicitly questioned the efficacy of using filtering technology (or code) to resolve the pornography problem. Is the negative appraisal of code put forward by the plaintiffs in this case an accurate one, or can code be a viable part of the solution? With that question in mind, we turn to a more in-depth discussion of the deployment of filtering architectures in cyberspace.

Automating Content Controls At the heart of the debate about the CDA and content regulation is the basic question that was raised in about how the internet should be regulated. Should government impose theChapter 2 kind of central controls embodied in legislation such as the CDA and COPA? Or should the internet be managed and controlled primarily through code, installed at the discretion of individuals or private institutions? The latter approach would decentralize content controls so that people can develop their own solutions to offensive speech tailored to their own needs and value systems.

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Thanks to the rulings against CDA and COPA, the burden of content control has shifted to parents and local organizations like schools and libraries. But the exercise of this bottom-up exertion of power has caused some anxiety due to the potential for abuse. To what extent should local communities and institutions (e.g., schools, prisons, libraries) assume direct responsibility for controlling content on the internet? Aside from the demands of CIPA, libraries must consider whether it is appropriate to use filtering software to protect young patrons from pornography on the internet. Is this a useful and prudent way to uphold local community or institutional standards? Or does this sort of censorship compromise a library’s traditional commitment to the free flow of ideas?

There are two broad areas of concern about the use of content controls that need elaboration. The first area involves the social and moral probity of censorship itself, even when it is directed at the young. There is a growing tendency to recognize a broad spectrum of rights, even for children, and to criticize parents, educators, and politicians who are more interested in imposing their value systems on others than in protecting vulnerable children. Jonathan Katz and other advocates of children’s rights oppose censorship even within a private household, unless it is part of a mutually agreed upon social contract between parent and child. According to Katz, “Parents who thoughtlessly ban access to online culture or lyrics they don’t like or understand, or who exaggerate and distort the dangers of violent and pornographic imagery, are acting out of arrogance, imposing brute authority.” Rather, Katz contends, young people have a right to the culture that they are creating and shaping. The ACLU seems to concur with this position and it too advocates against censorship as a violation of children’s rights.

Lurking in the background of this debate is the question of whether or not children have a First Amendment right to access indecent materials. There is no consensus about this among legal scholars, but if children do have such a right it would be more difficult to justify filtering out indecent materials in libraries or educational institutions. One school of thought about this issue is that a child’s free speech rights should be proportionate to his or her age. The older the child, the more questionable are restrictions on indecent material.

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The second area of concern pertains to the efficacy of the blocking methods and other automated controls used to accomplish this censorship. Popular blocking programs have included Cyber Patrol, N2H2 Internet Filtering, Websense Enterprise, and SmartFilter. These programs generally function by using categories of objectionable speech. Categories might include Adult/Sexually Explicit, Nudity, Pornography, and so forth. Websense Enterprise uses 75 categories, but that seems to be higher than the norm. Once the categories are established, filtering companies use automated programs (including robots) to examine websites and determine candidates for each category. For example, after a bot visits the

website to search for key words, the program might classify this site as “Adultspenthouse.com Only/Pornography.” For the most part the categorization is made without human intervention, but sometimes human reviewers might make the final determination. The extent of human intervention in this process varies from company to company. If a parent installs a filtering program like N2H2 with categories such as “Adults Only/Pornography” activated, anyone trying to access the site is prevented from doing so by the software.penthouse.com

There are several conspicuous problems with the utilization of blocking software. The first problem is the unreliability and lack of precision that typifies some of these products—there are no perfect or foolproof devices for filtering out obscene or pornographic material. Sometimes automated programs make mistakes and this leads to over blocking, that is, filtering out sites that do not fit a particular category. For example, a report on SmartFilter exposed apparent over

, pointing out that “it blocked WrestlePages (‘The best source for wrestling news’); blocking , a motorcycle sport magazine produced by ESPN; and Affirmation: Gay andMotoWorld.com

Lesbian Mormons, a support site.” On other occasions the problem could be under blocking, failing to find a pornographic site and leaving it off the list. Given the density and volatility of the web, this lack of precision should not be particularly surprising. Whether these incongruities can be overcome by better software products is a matter of some dispute.

Another problem is that these blocking programs are not always transparent, and they can be furtively employed to enforce a code of political correctness or advance a social agenda, unbeknownst to parents or librarians who choose to install them. Sites that discuss AIDS, homosexuality, and related topics have been blocked by certain filtering programs, either deliberately or accidentally. Sometimes these programs are not explicit or forthright about their blocking criteria, which greatly compounds this problem.

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Finally, a potential disadvantage of filtering software is that the filter can be imposed at any level in the vertical hierarchy that controls the accessibility of internet services. It can be invoked at the individual user level, the corporate or institutional level, or the ISP level. Saudi Arabia, China, Singapore, and a host of other countries have put into effect country-wide filtering systems by blocking content, usually at the level of the destination ISP, a major point of control for state intervention. In Saudi Arabia, all internet traffic is routed through a proxy server that restricts website access based on filtering criteria determined by the state. The blocked sites include pornographic sites along with those that might offend the cultural or religious beliefs of Saudi citizens. This material includes content critical of the Islamic religion and political discourse critical of the Saudi regime. Political dissent is not welcome in Saudi Arabia, and government officials wanted to be sure that the web would not provide a new forum for fomenting such dissent.

The adoption of filtering technologies is a striking example of how “code” has become a substitute for law as a constraint on cyberspace behavior. Thanks to the nullification of the CDA, internet stakeholders in increasing numbers will resort to software that may be far more effective than the law in suppressing pornographic material.

Although we take no position on the merits of automated controls, we contend that the developers and users of code as a method of dealing with cyberporn should deploy this software responsibly to minimize any potential for collateral damage. If this code is designed, written, and used prudently, it can protect innocent children without threatening individual liberties or the common good.

What constitutes responsible use of these automated controls? First, the use of these controls should be strictly voluntary—parents or schools should be allowed to choose whether or not to restrict web content. In contrast, a mandatory rating or filtering system administered or sponsored by the government would be imprudent and probably counterproductive. It would impose a uniform solution to what is arguably a local problem. Thus, automated controls should not be adopted as a high-level centralized solution to harmful speech. Filtering should occur only at the lowest levels, at the points of control exercised by individuals, schools, or libraries. Second, there should be an adequate transparency level in blocking software or rating schemes. Although some information may be proprietary, software companies must be as open as possible about their filtering criteria and methodologies.

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Even if automated content controls are used responsibly and diligently, their use still raises some troubling questions. For example, which local institutions should assume the burden of implementing filtering technologies? What about the use of filtering devices in libraries that provide internet access? Both public and private libraries face a real dilemma: they can either allow unfettered internet access, even to their youngest patrons, or use filtering products to protect minors from pornographic material.

Those libraries that favor the first approach argue that the use of filtering devices compromises the library’s traditional commitment to the free flow of information and ideas. Some of this opposition to these filtering devices originates from the imprecise way in which they function. The public library in New York City subscribes to this philosophy and presently does not employ filtering devices. The Connecticut Library Association has articulated support for “the principle of open, free and unrestricted access to information and ideas, regardless of the format in which they appear.” Further, the American Library Association (ALA) is opposed to the installation of filters and endorses the idea of unrestricted internet access for both adults and minors.

A number of librarians, however, disagree with the ALA. They maintain that the internet should be censored and that filtering programs provide a way to support and reinforce local community values. According to Brenda Branch, the director of the Austin Public Library in Texas, “We have a responsibility to uphold the community standard. . . . We do not put pornographic material in our book collection or video collection, and I also don’t feel we should allow pornographic materials in over the Internet.”

Some libraries have a strict censorship policy that applies to both adults and minors. Others install filtering devices on children’s computers but not on those in the adult areas. But the ALA and the ACLU do not favor this type of zoning strategy. Nor do libertarian groups like the American Civil Liberties Union (ACLU). As the result of an ACLU lawsuit, the library system in Kern County, California was forced to abandon such a zoning plan and to give all of its patrons, including minors, the right to use a computer without a filter. Moreover, this solution contradicts Article 5 of the ALA’s Library Bill of Rights: “A person’s right to use a library should not be denied or abridged because of origin, age, background, or views.” According to the ALA, fidelity to this principle would preclude the use of filters on any computer systems within a library.

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Opponents of filtering also argue that schools and libraries which attempt to educate students and young patrons about internet use and abuse should rely on trust rather than censorship. As Richard Rosenberg argues, “If the first instinct is to withhold, to restrict, to prevent access, what is the message being promulgated?” If institutions like schools and libraries truly value the ideals of trust, openness, and freedom, imposing censorship on information is a bad idea that mocks those ideals.

But should all information be freely accessible to anyone who wants it (including children)? Is this a morally reasonable policy? What are the costs of living in a society, that virtually absolutizes the right to free speech in cyberspace and makes all forms of speech readily available even to its youngest members? Because these costs can be quite high, it is critically important to consider the other side of this issue.

Many responsible moralists contend that some carefully formulated, narrow restrictions on specific types of indecent speech are perfectly appropriate when young children are involved. They maintain that parents, schools, libraries, and other local institutions have an obligation to promote and safeguard their own values as well as the values of their respective communities. This is part of the more general obligation to help promote public morality and the public order. Freedom and free expression are fundamental human rights, but these and other rights can only be reasonably exercised in a context of mutual respect and common acceptance of certain moral norms, which are often referred to as the . In any civilized society, some ofpublic morality these norms prescribe how people, especially children, should conduct themselves sexually. Given the power of sexuality in one’s life, the need for carefully integrating sexuality into one’s personality, and the unfortunate tendency to regard others as sexual objects of desire (rather than as human persons), there is a convincing reason for fostering a climate where impressionable children can be raised and nurtured without being subjected to images of gross or violent sexual conduct that totally depersonalize sexuality, exalt deviant sexual behavior, and thereby distort the view of responsible sexual behavior. This is clearly an aspect of the common good and public morality and is recognized as such by public officials in diverse societies who have crafted many laws (such as the law against the production of child pornography) to protect minors and to limit the exercise of rights in this area. Hence, given the importance of protecting young children as best as we can from psychologically harmful pornographic images, parents and those institutions that function in should not be timid about carefullyloco parentis controlling internet content when necessary.

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It is never easy to advocate censorship at any level of society precisely because the right to free expression is so valuable and cherished. But proponents of content controls for pornography argue that most human rights, including the right to free expression, are limited by each other and by aspects of the common good that in this context are captured by a term like “public health.” According to this perspective, parents, libraries, and schools are acting prudently when they choose to responsibly implement filtering technologies to help preserve and promote the values of respect for others and appropriate sexual conduct, which are part of our public morality. Preserving free speech and dealing with sexually explicit material will always be a problem in a free and pluralistic society, and this is one way of achieving a proper balance when the psychological health of young children is at stake.

New Censors and Controversies Cyberspace pornography does not get the media attention it once did when the internet was still a relatively novel phenomenon. In the United States, legislative battles have faded away after the government’s modest victory with its CIPA legislation. But the issue has not gone away, as attention is now focused on the availability of porn for mobile devices and the need to control the distribution of violent video games to minors. There remains a massive amount of pornography in cyberspace and some say the computer business itself is really built on porn. That may be hyperbole, but as more people buy iPads and iPhones there is an obvious demand for a wide variety of adult entertainment apps for these devices.

However, Apple has censored these apps much to the dismay of some libertarians. Apple restricts the apps available in its app store to nonpornographic content. Steve Jobs once boasted that the app store was based on the principle of “freedom from porn.” Apple’s app censorship also extends to online content that is made available on its devices for a fee, such as magazines and newspapers. Apple censored an iPad app for an issue of Germany’s Stern magazine because it published nude photos and other erotic content that could be displayed on the iPad. Apple realizes that people will continue to access adult entertainment websites through their browsers, but the company is trying to avoid the direct distribution of that entertainment through their own app store. Apple’s decision seems based on a moral conviction about the unsuitability of this material for minors, but it may also be sound economics. Apple may sell more apps to children if parents don’t have to worry that they will be purchasing X-rated content at the app store.

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In addition to worries about porn for mobile devices, there is escalating concern about the violent content of video games, which are increasingly played with others over the internet. Some video game makers are introducing technology that streams games to internet-connected devices. States like California have sought to regulate these games in the face of strong opposition from the gaming industry and civil libertarians. The primary issue is violent and sadistic imagery, which is a different form of pornography. However, some games feature assaults with sexual overtones, which appeals to the prurient and deviant interests of young adults. Also, feminists are rightly concerned about the sexual stereotypes found in many games, which are played mostly by men.

A key question in this case is whether the same First Amendment protection that extends to books and movies also extends to video games. Latent in the video game debate about censorship and free speech is the more general concern about playing ultra-violent video games. Some philosophers and psychologists convincingly argue that playing these vivid games incessantly cultivates insensitivity to human suffering and a lack of empathy. Hence, this form of play potentially interferes with the development of one’s sound moral character. Others have dismissed these concerns, observing that minors’ attraction to violent entertainment (including Saturday morning cartoons) is nothing new.

In the Supreme Court case of , the justices ruledBrown v. Entertainment Merchants Association against California’s regulations forbidding the sale of violent video games to minors. The Court held that video games qualify for First Amendment protection. The reasoning of the majority was simple enough: games communicate ideas and government lacks the power “to restrict expression because of its message, ideas, subject matter or content.” Thus, despite the potential dangers of frequent exposure to these ultra-violent video games, the Court determined that children have every right to purchase and play these games.28

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Hate Speech The rapid expansion of hate or extremist speech on the web raises similar polemical disputes. Many groups such as white supremacists and anarchists have websites that advocate their extremist viewpoints. Some of these sites are blatantly anti-Semitic. They disparage the Jewish religion or make preposterous claims that the Holocaust never happened. Other sites take aim at religions like Islam. On occasion, these sites can be especially virulent and outrageous, such as the website of the Charlemagne Hammerskins. One scene reveals a man disguised in a ski mask bearing a gun and standing next to a swastika.

Social media has become rife with various forms of hate speech along with borderline offensive speech that deals with the themes of race and ethnicity. Twitter, which is committed to openness and free speech, has helped many bottom-up movements like Black Lives Matter and the Tea Party to mobilize their members. But it has also become a popular venue for expressing hate speech. One series of anti-Semitic tweets by a pseudonymous account attacked Judaism and showed a series of lampshades with the caption, “This is your family when Trump wins. Get your Israel passport ready.” Some hate speech is linked with the promotion of terrorism. In the infamous Easter attack in Sri Lanka by a radical, anti-Christian Muslim group, Facebook postings revealed an escalation from contempt for Christians to a call for bombings at Christian churches. Despite repeated complaints from the broader Muslim community, Facebook did not remove the controversial postings.

What can be done about this growing subculture of hate and extremism on the internet? The great danger is that the message of hate and bigotry, once confined to reclusive, powerless groups, can now flow unimpeded throughout the online terrain. Unlike obscenity and libel, hate speech is not illegal under U.S. federal law and it is fully protected by the First Amendment. This protection was recently reaffirmed by the U.S. Supreme Court which decided 8–1 that the graphic “hate speech” (e.g., “God hates fags”; “Pope in Hell”; “Thank God for 9/11”) by Westboro Baptists at military funerals was protected by the First Amendment. According to Chief Justice Roberts, who wrote the majority opinion, “Such speech cannot be restricted simply because it is upsetting or arouses contempt.” The decision was not without controversy since it put the United States at one extreme on the global spectrum for hate speech protection. 30

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On the other hand, in European countries like Germany and France, anti-Semitic, Nazi-oriented websites are illegal, along with other forms of hate speech. In Germany, the government has required ISPs to eliminate these sites under the threat of prosecution. Critics of this approach argue that it is beyond the capability of ISPs to control content in such a vast region as the World Wide Web. It is also illegal for internet companies located in other countries to make available Nazi materials in Germany. American companies have tried to be as accommodating as possible. For example, no longer sells copies of Hitler’s autobiography, Amazon.com Mein

, to its German customers, that is, customers who access the German-language site.Kampf

Hate speech can be dealt with through the same methods used to control pornography, especially law and code. Some sovereignties, like France and Germany, prefer regulation and explicit laws that forbid most forms of hateful or extremist speech. There is always the problem of regulatory arbitrage, however. Some extremist site servers have relocated to the United States or other countries, where those laws do not apply. An alternative to government regulation is greater reliance on user empowerment through code. Hate speech can usually be suppressed through responsible filtering that does not inadvertently exclude valid forms of political speech. Given the limitations of the law, parents and certain private and religious institutions can turn to technology to shield young children and sensitive individuals from some of this offensive material.

Social media platforms are not required under the First Amendment to protect the speech of their users since they are not government entities. Also, thanks to section 230 of the Communications Decency Act, online platforms have immunity from legal liability for user-generated content. Nonetheless these platforms seek to target extremist or abusive speech for the safety and welfare of their user base. The “Twitter Rules,” for example, prohibit abusive behavior by Twitter users as well as “hateful conduct.” The process of removing extremist content including hate speech is known as commercial content moderation. It usually relies on “community policing,” with users of a service such as Twitter flagging a certain piece of content that they believe is in violation of the rules. Some platforms utilize a process of “automatic flagging” by which their own proprietary tools identify extremist content that violates their rules. Once identified, the content is then subjected to a human reviewer before a final determination is made.31

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But how can these platforms identify which forms of speech should be targeted and singled out as examples of “hateful conduct” or extremism? Can hate speech be properly defined in order to avoid arbitrary and subjective decisions? And what separates real hate speech from speech that is politically incorrect and perhaps only borders on being offensive? It is difficult for Google or Twitter algorithms and also for human censors to make these distinctions. While a comprehensive definition of hate speech is difficult to formulate, Andrew Sellars proposes the main common traits of hate speech that should help establish the parameters of censorship:

Targeting of a Group, or individual as a member of a Group (race, ethnicity, and religion appear most frequently) Content in the message that expresses hatred (e.g., speech that promotes “racial inferiority” or denies the dignity of target group members) The speech causes harm (especially speech that seeks to induce physical violence or terrorism) The speech incites bad actions beyond the speech itself The context makes violent response possible The speech has no redeeming purpose (i.e., the speech has no relevance or social value that goes beyond the expression of hatred toward another group).

Questions remain, of course, about how best to put this framework into practice so that speech restrictions are warranted and not based on arbitrary standards or political bias. The challenge for private censors, such as Twitter and Facebook, is to handle hate speech in an objective manner by applying these or similar norms as prudently and fairly as possible.32

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Online Threats Sometimes extremist speech that incites hatred can take the form of a threat, and threats are generally not protected by the First Amendment. However, differentiating a threat from constitutionally protected hate speech is no easy matter. Consider the case of the “Nuremberg Files” website, which was the product of the American Coalition of Life Activists (ACLA), a fringe antiabortion group that appeared to advocate the use of violent tactics against abortion providers. Doctors who provided abortions were listed on the website and they were declared to be guilty of crimes against humanity. In addition, the names of murdered doctors were crossed out, and the names of those doctors who had been wounded were printed in gray.

The website was replete with radical antiabortion statements and it included links to other antiabortion sites that defended the murder of abortion providers as morally justified. There was also a call for information about abortion providers to assist in collecting dossiers on abortionists to hold them accountable until abortion was declared illegal. The site’s imagery was also gruesome with images of dripping blood and aborted fetuses.

Planned Parenthood filed suit against the ACLA, the operators of this site. They argued that the material on this website (along with other activities of the ACLA) violated a 1994 law called the Federal Freedom of Access to Clinics Entrances Act, which makes it illegal to use “force or threat of force” against those who provide or seek out abortions. Lawyers representing the ACLA argued that there was no explicit advocacy of violence. In 1999, a jury ruled in favor of the plaintiffs and demanded that ACLA pay a fine of $100 million. However, in March 2001, the Ninth Circuit Court of Appeals overturned this decision on the basis that this speech was protected by the First Amendment. According to the appeals court ruling, the defendants did not threaten to commit violent acts, but only encouraged such acts by others, so their words were protected by the First Amendment.

Some legal scholars think that this ruling was abetted by recent Supreme Court decisions, which have stipulated that threats must be explicit and likely to cause “imminent lawless action.” For the three-judge panel on this appeals court, the speech found on the Nuremberg website, however unappealing and extreme, did not meet this heavy burden.

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A more recent case has focused attention on threatening rap lyrics posted on Facebook by a rapper known as Tone Dougie (Anthony Elonis). These posts were full of vicious language directed at Mr. Elonis’s estranged wife. For example, in some of his rants, Elonis proclaimed that he would like to see a Halloween costume that included his wife’s head on a stick. The rapper was convicted under federal law of transmitting communications containing threats and sentenced to 4 years in jail. However, Elonis contended that he never to threatenintended anyone and that his menacing Facebook posts were merely a “therapeutic way” to deal with his anger. Defenders of Elonis argue that people should have wide latitude for free, creative expression online and that there must be proof of subjective intent in order to classify speech as a true threat. The case was appealed to U.S. Supreme Court, which threw out the conviction primarily because the jurors failed to focus on the critical matter of Elonis’s intentions. The Supreme Court ruling was regarded as a setback for law enforcement, victims’ rights groups, and valid efforts to preserve civility in online discourse.33

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Anonymous Speech Anonymous communication in cyberspace is enabled largely through the use of anonymous remailers, which strip off the identifying information on an email message and substitute an anonymous code or a random number. By encrypting a message and then routing that message through a series of these remailers, a user can rest assured that his or her message will remain anonymous and confidential. This process is known as “chained remailing.” The process is usually effective because none of the remailers has the key to read the encrypted message; neither the recipient nor any remailers (except the first) in the chain can identify the sender; the recipient cannot connect the sender to the message unless every single remailer in the chain cooperates.

New anonymizer tools such as Tor have also emerged, thanks to the work of a group of open source engineers. Tor is known as an “onion router,” because it layers internet traffic like an onion. Tor’s ProtonMail enables anonymous email communications, while the Tor browser isolates websites from the snooping gaze of advertisers or other third parties engaged in online surveillance.

But should digital anonymity be promoted and encouraged, since it is sometimes abused as a shield for subversive activities? It would be difficult to argue convincingly that anonymity is a core human good, utterly indispensable for human flourishing and happiness. One can surely conceive of people and societies where anonymity is not a factor for their happiness. However, although anonymity may not be a primary or basic human good, it is surely an instrumental good or value. For some people, under certain circumstances, a measure of anonymity is quite important for the exercise of their rational life plan and for human flourishing. The proper exercise of freedom, and especially free expression, does require the support of anonymity in some situations. Unless the speaker or author can choose to remain anonymous, opportunities for free expression become limited for various reasons and that individual may be forced to remain mute on critical matters. Thus, without the benefit of anonymity, the value of freedom is constrained.

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We can point to many specific examples in support of the argument that anonymous free expression deserves protection. Social intolerance may require some individuals to rely on anonymity to communicate openly about an embarrassing medical condition or an awkward disability. Whistleblowers may be understandably reluctant to come forward with valuable information unless they can remain anonymous. And political dissent even in a democratic society that prizes free speech may be impeded unless it can be done anonymously. Anonymity has an incontestable value in the struggle against repression or even against more routine corporate and government abuses of power.

Thus, although there is some social cost to preserving anonymity in cyberspace, its central importance in human affairs is certainly beyond dispute. It is a positive good, that is, it possesses positive qualities that render it worthy to be valued. At a minimum, it is valued as an instrumental good, as a means of achieving the full actualization of free expression.

Anonymous communication, of course, whether facilitated by remailers or by other means, does have its drawbacks. It can be abused by criminals or terrorists seeking to communicate anonymously to plot their crimes. It also permits cowardly users to engage in calumny or to libel someone without accountability. Anonymity can also be useful for revealing trade secrets or violating other intellectual property laws. In general, secrecy and anonymity are not beneficial for society if they are overused or used improperly. According to David Brin, “anonymity is the darkness behind which most miscreants—from mere troublemakers all the way to mass murderers and would-be tyrants—shelter in order to wreak harm, safe against discovery or redress by those they abuse.”

Although we admit that too much secrecy is problematic, the answer is not to eliminate all secrecy and make everything public and transparent, which could be the inevitable result of this loss of digital anonymity. Nonetheless, it cannot be denied that anonymity has its disadvantages and that digital anonymity and unrestricted internet access can be exploited for many forms of mischief. Hence the temptation of governments to sanction the deployment of architectures that will make internet users more accountable and less able to hide behind the cloak of anonymity.

Despite the potential for abuse, however, there are cogent reasons for eschewing the adoption of those architectures and protecting the right to anonymous free speech. A strong case can be put forth that the costs of banning anonymous speech in cyberspace are simply too high in an open and democratic society. The loss of anonymity may very well diminish the power of that voice that now resonates so loudly in cyberspace. As a result, regulators must proceed with great caution in this area.

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Government Censorship and the Fate of Political Speech So far in this chapter we have been considering deviant forms of speech such as pornography, hate speech, and online threats. We have seen how governments have tried to restrict the free flow of pornographic speech to keep it out of the hands of minors. Government censorship, however, is not always confined to pornographic speech considered harmful to minors or to violent video games. Some authoritarian governments have also sought to censor political speech by stifling dissent in their countries. Dissident websites and many foreign news sources are blocked by sophisticated filtering systems. In China, for example, these filtering systems are installed on routers manufactured by Cisco and controlled by ISPs such as China Telecom.

This censorship infrastructure has become known as the “Great Firewall of China,” and it is designed to help the country limit political activism and expressions of dissent. The firewall blocks many foreign websites including Voice of America, the , and HumanNew York Times Rights Watch. Wikipedia has been completely blocked since May, 2015. Social media platforms such as Facebook and Twitter are banned in China. In September, 2014, the Chinese government blocked Instagram after it became a popular tool during Hong Kong’s pro-democracy protests. Through deep packet filtering the Great Firewall can block specific web pages and images. References to the Tiananmen Square incident, China’s human rights record, religious freedom in China, or Tibet are blocked unless some type of coded language is used.

The Chinese government has also pressured internet gatekeepers like Yahoo and Google to comply with its strict censorship laws. Let us briefly consider the case of Google, the ubiquitous search engine company that dominates markets throughout the world. Google’s famous values such as “technology matters” and “don’t be evil” have guided the company in its ambitious expansion efforts. When it entered the Chinese market to compete with Baidu (China’s search engine company), Google conceded to China’s demands that it follow local law. Hence it reluctantly agreed to self-censor and to purge its search engine results of any links to politically “offensive” websites and other content not approved by the Chinese government. These included websites supporting the Falun Gong cult or the independence movements in Tibet and Taiwan. As one reporter indicated,

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If you search for ‘Tibet’ or ‘Falun Gong’ most anywhere in the world on , you’llgoogle.com find thousands of blog entries, news items and chat rooms on Chinese repression. Do the same search inside China on google.cn and most, if not all, of these links will be gone. Google will have erased them completely.

In order to avoid further complications, the company did not host user-generated content, such as blogs or email, on its computer servers in China for fear of the government’s role in restricting their content. In this way, it avoided the plight of companies like Yahoo who were compelled by Chinese law to hand over information about dissidents using Yahoo’s email. Unlike its local competitors, Google alerted users to censored material by putting a disclaimer at the top of the search results indicating that certain links have been removed in accordance with Chinese law. Also, Chinese users could still access with its uncensored searchGoogle.com results (though links to controversial sites would not work thanks to the firewall). After several years, Google decided to stop censoring its web search and news services in China. The company reluctantly came to the conclusion that complicity in censorship violated its values. As a result, in March 2010 Google quietly announced that it would redirect Google.cn users to an uncensored site hosted in Hong Kong.

Microsoft has also admitted that when it introduced its “MSN Spaces” to China, enabling users to set up their own blogs, all blog titles containing words such as “freedom” or “democracy” would be disabled. If a Chinese user sought to create a blog called “Democracy in Today’s China,” he would receive an error message, warning him that he is using “forbidden language,” and must “delete the prohibited expression.”

Of course, given the magnitude of internet use in China, the best the government can hope for is “porous censorship.” According to Margaret Roberts this type of incomplete censorship is actually China’s overt strategy, since more obvious repression would likely ignite a popular backlash. Incomplete censorship, on the other hand, is more easily concealed by authoritarian governments like China, and gives the government the cover of plausible deniability.

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According to Roberts, China relies on three basic mechanisms, , tofear, friction, and flooding modulate information flows in the country. Fear originates not only from the consequences of flouting China’s censorship laws, but also from intimidation of journalists and social media users who operate within the law. When the censors at Sina Weibo, China’s largest social media network, did not promptly remove posts about a liberal newspaper editorial, the company’s executives were summoned before government officials and admonished about the importance of “running the Internet in a civilized manner.” Friction is the cost imposed on accessing or sharing information. The most conspicuous source of friction is the Great Firewall itself, which blocks out foreign websites the government regards as objectionable. This restriction can be circumvented by downloading a virtual private network (VPN), but sometimes they are shut down by the Chinese government, so users must search for an alternative VPN before they can scale the firewall. Also, very few Chinese citizens take advantage of VPNs. Friction can take several other forms such as the throttling of Google in 2010 (so users could connect only some of the time) when it redirected traffic to its Hong Kong website that did not abide by China’s censorship rules.

Finally, authorities rely on the technique of flooding. Flooding is defined as the “coordinated production of information by an authority with the intent of competing with or distracting from information the authority would rather consumers not access.” Some governments, for example, rely on “Twitter armies,” a coordinated effort to promote and propagate their version of certain political events. Roberts describes how in August 2014, shortly after a major earthquake in Yunnan province, Chinese official media began posting coordinated stories about a controversial internet personality Guo Meimei who had become entangled in a Red Cross scandal several years earlier. Credible foreign media sources alleged that this coordination of news was a distraction from the earthquake, which had the potential to reveal flaws in the government’s earthquake preparedness programs. These subtle strategies of friction and flooding tend to drive Chinese citizens away from activist agendas or alternative political viewpoints that are a threat to the regime.

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Despite these challenges, U.S. technology companies have certainly not given up on China. The social media network for professionals called LinkedIn is convinced of the importance of the lucrative China market to its business. Hence, it has sought a presence in China by following the example of Google and compromising its free speech standards. On both its Chinese and English language sites in China, the company censors (for its Chinese users) any content that is judged to be politically sensitive or inflammatory by the Chinese government. It uses a combination of computer algorithms and human reviewers to accomplish this censorship. In addition, LinkedIn deprives its Chinese users of tools to create groups, to post long essays, or to create forums for public discussion. The company is optimistic about its prospects in China and claims that its principal goal is to provide the opportunity “for millions of Chinese professionals to significantly expand their economic opportunities.”

When companies refuse to censor objectionable content from their sites, they can easily risk a confrontation with the local government. In India, both Google and Facebook have been taken to court for not blocking content that is forbidden by an austere Indian censorship law (at least by Western standards). That law prohibits blasphemy, ethnic disparagement, and any threats made to the public order. Google, which owns YouTube, ran afoul of Indian law because it failed to remove a video showing someone relating a Hindu story that had been edited to incorporate obscene language. Civil libertarians object that India’s Information Technology Act (2008) represents a stifling of free speech, but others argue that India has a right to set its own speech standards and that internet companies must follow the local laws of the land.

Countries like Iran have followed China’s lead in their aggressive filtering of unwanted internet content. In February 2011, young Iranians belatedly joined in the “Arab spring,” and took to the streets to protest the Iranian government’s repressive politics. Some of these collective activities were planned online, especially in popular internet cafes. Iran responded with a new wave of restrictions. Cameras were installed in these cafes and user registration was made mandatory. In the spring of 2012, the Iranian government decided to centralize its censorship activities by forming the Supreme Council of Cyberspace dedicated to purging the internet of websites that threaten Islamic morality or national security. The Iranian government has used many different tactics such as “friction” to constrain technology and limit internet use during times of political turmoil. In one instance, in order to control the use of smartphone technologies, mobile operators in Iran were required to limit internet speeds to a “sub-snail’s pace,” rendering it unfeasible to make video calls or transmit images.

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The internet was supposed to be a liberating force, destined to become an unfettered and nonterritorial global network beyond the reach of local governments. Many believed that the spread of this technology around the world would mean the waning of state sovereignty. New

columnist Tom Friedman wrote that the internet and globalization would “act likeYork Times nutcrackers to open societies.” So what happened? What accounts for this confrontation between authoritarian politics and online freedom of expression in countries like Iran and China? Governments have retaken control of the internet by blocking objectionable content with the aid of intermediaries like Google and by reestablishing borders that were initially erased by networking technology. As Goldsmith and Wu point out, the internet is becoming a collection of “nation-state networks—networks still linked by the internet protocol, but for many purposes separate.” China has virtually segregated its national network by creating its “great firewall,” and Iran has threatened to create its own national internet disconnected from the rest of the world. The enforcement of national laws in cases like (see ) has alsoGutnick Chapter 2 contributed to this phenomenon of a bordered and closed internet.

Those who support this reemergence of national government control in cyberspace might cite the experience of France in the case to defend their reasoning. Its local lawsLICRA v Yahoo directed at Yahoo better reflected the needs and history of its people than some set of uniform global standards. There is something to be said for preserving the role of territorial governance even in cyberspace as countries try to sustain their cultural identity in the face of the uniformity imposed by globalization. On the other hand, if there is a universal right to free expression, it is difficult to justify the coercive activities of countries like Iran. Will Iran’s Orwellian “Supreme Council of Cyberspace” really reflect the best interests of the Iranian people and promote social welfare?

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Postscript Pornography, violent video games, hate speech, and threats are all problematic forms of free expression that pose formidable challenges to cyberspace jurisprudence, which seeks to balance individual rights with the public good. Ideally, of course, individuals and organizations should regulate their own expression by refraining from intimidating and mean-spirited hate speech, refusing to disseminate pornography to children, and repressing the temptation to use spam as a means of advertising goods or services. But in the absence of such self-restraint, internet stakeholders must make difficult decisions about whether or not to shield themselves from unwanted speech, whether it be crude obscenities or irksome junk email.

Top-down government regulations such as COPA represent one method for solving this problem. Sophisticated filtering devices, which will undoubtedly continue to improve in their precision and accuracy, offer a different but more chaotic alternative. As we have been at pains to insist here, whatever combination of constraints is utilized—code, law, market, or norms—full respect must be accorded to key moral values such as personal autonomy. Hence the need for nuanced ethical reflection about how these universal moral standards can best be preserved as we develop effective constraints for aberrant behavior in cyberspace. Otherwise, our worst apprehensions about the tyranny of the code or the laws of cyberspace may be realized.

Another option, of course, is to refrain from the temptation to take any action against these controversial forms of speech in cyberspace. Some civil libertarians argue convincingly that internet stakeholders should eschew regulations and filtering and leave the internet as unfettered and open as possible. We should tolerate all forms of nuisance speech on the internet just as we tolerate them in the physical world. The challenge with any form of censorship is the difficulty of separating constructive speech from harmful speech. As John Perry Barlow writes, “We cannot separate the air that chokes from the air upon which wings beat.”

If a decision is made to suppress extreme forms of speech, the ethical challenge is to find a way to preserve the liberties of cyberspace while removing speech that is not constitutionally protected or restricting access to speech that is harmful to minors. The internet has created a “new marketplace of ideas” with “content [that] is as diverse as human thought.” And neither law nor code should disrupt the free flow of ideas and information in this democratic marketplace.

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DISCUSSION QUESTIONS

What is your assessment of the Children’s Internet Protection Act (CIPA)? Do you support the ACLU’s views against this legislation? Are automated content controls a reasonable means of dealing with pornographic material on the internet? At what level(s)—e.g., parent, school/library, ISP—should those controls be deployed? What sort of First Amendment protection do websites filled with hate speech or racist speech deserve? Is the right to free speech universal? That is, should everyone have the right, within reason, to criticize their government and freely express their political views, or is the right to free speech culturally conditioned, as some countries like China have assumed?

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Case Studies

When Is a Facebook Post a Real Threat?

Offensive and threatening language has become all too common in the infosphere and especially in interactive social media. In the United States the right to free expression, protected by the First Amendment of the U.S. Constitution, is quite broad. However, that right to free expression does not include the right to make a hostile threat directed at another person. A “true threat” is illegal even in the free-wheeling realm of cyberspace. The issue has taken on greater salience due to the rise of social media and microblogging, where many more people have a forum to use threatening and abusive language. But how much latitude should people have to express themselves on Facebook, Twitter, or YouTube or on other social media sites?

The case of an aspiring rapper, Anthony Elonis, has crystallized the issue in cyberspace jurisprudence and has also raised several moral questions. Elonis posted a series of menacing remarks on Facebook about his estranged wife. Some of those remarks included threats against her life. In one particularly virulent post he wrote, “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” Several of the most serious threats took the form of rap lyrics: “Little Agent Lady stood so close/Took all the strength I had not to turn the bitch ghost/Pull my knife, flick my wrist, and slit her throat.”

Mr. Elonis was arrested and indicted under federal law of allegedly transmitting communications across state lines that incorporate a threat. A motion was filed to dismiss the indictment based on the argument that these statements were protected speech (rather than “true threats”) under the First Amendment, particularly because there was no proof of any subjective intent on Elonis’s part to threaten his wife. But in rejecting this motion, the court noted the application of an “objective speaker test,” under which a communication is a true threat (and therefore not protected by the First Amendment) if a defendant intentionally made the statement and a reasonable person would foresee that such a statement would be interpreted by those to whom the speaker communicates the statement as a serious expression of an intention to inflict bodily harm.

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The courts dealing with this and other cases have grappled with the appropriate legal standard for what constitutes a “true threat.” Should prosecutors have to prove that there was a subjective intent to threaten someone? Or is it adequate to demonstrate that a “reasonable person” would regard the words in question as a threat or that the victim feels threatened in some way? The lawyers for Mr. Elonis have argued that a prosecutor must show that the individual accused of making threats clearly intends to put the victim in a state of fear or intends to do psychological or physical harm. Also, to what extent does context matter? Rap songs by Eminem, no matter how vile, are a form of entertainment, but Mr. Elonis’s random posting and amateur rap lyrics on his personal Facebook page could not really be considered entertainment.

During the trial, Elonis, through his lawyers, argued that his words were misinterpreted—they weren’t really a threat, he claimed, but a “therapeutic” way of working out his anger and frustration. These incendiary lyrics were just “fictitious,” and not meant to be taken seriously. But those arguments fell on the deaf ears of an unsympathetic jury.

In 2012, Elonis was convicted and sentenced to 4 years in jail. Elonis’s lawyers quickly appealed his conviction, but in 2013 it was upheld by the 3rd Circuit Court of Appeals. The appeals court strongly rejected the argument that proof of subjective intent is required by the First Amendment, and Elonis’s conviction was not overturned as he had hoped. Meanwhile, the case began to attract national attention.

Free-speech activists expressed their serious reservations about this case and about the implications for people who post on Facebook and other forms of social media. Those concerns became increasingly evident as the legal drama continued. In their petition to the Supreme Court to take their client’s case, Elonis’s lawyers argued that online communication makes it more difficult than ever to interpret the meaning of a statement. Hence, this means that it is vital for a jury to take into account Elonis’s in writing hisintent posts rather than just consider how a hypothetical reasonable person might evaluate a threatening statement. According to Elonis’s lawyers, the “impersonal nature of online communication makes such messages inherently susceptible to misinterpretation.”

The case of was heard by the U.S. Supreme Court in 2015. The Court,Elonis v. U.S. seeking to resolve a complicated web of free speech issues, threw out the Elonis conviction because the jury did not take into account Elonis’s intentions.

Questions

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What is the right standard for determining an online threat, and why is this issue more complicated in the world of interactive social media? Did the Supreme Court make the right decision in this case? If you were one of the nine justices, would you uphold Elonis’s conviction or toss it out?

Case Studies

Are Video Games Free Speech?

The video game industry dates back to 1972, when Magnavox first introduced a game console called Odyssey. The industry grew rapidly in the 1980s and 1990s in parallel with the explosive expansion of the PC industry. Companies like Atari and Nintendo fueled that growth thanks to popular games such as and .Super Mario Brothers The Legend of Zelda

Nintendo was overtaken by Sega’s popular consoles, beginning with Genesis in 1988. But 7 years later Sony launched PlayStation and became the industry leader within a few years. Worried that game consoles could become a substitute for PCs, Microsoft entered this competitive industry in 2001 with its Xbox console. Microsoft, Sony, and Nintendo now dominate the $11 billion dollar industry. Popular games include , ,Grand Theft Auto Manhunt and the mature-rated series. New-generation consoles include advancedFallout functionality. PlayStation 3, for example, plays high-definition DVDs, stores photographs and music, and even permits video conferencing. Both PlayStation 3 and Microsoft’s Xbox 360 support online gaming so that users can play video games with their friends over the internet.

Some video games have questionable content. They are laced with graphic violence or sexual aggressiveness. Like the movie industry, the video game industry has adopted its own voluntary internal rating system that informs consumers about the content of games. Video games are rated by the Entertainment Software Rating Board on a scale from EC (early childhood) to M (mature). Dealers are encouraged to refrain from renting or selling M-rated games to minors under the age of 17 without parental consent.

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