UA CS 340 Online Class - Final - Dixon

1st amendment

Guarantees freedoms concerning:
Religion,
Expression,
Assembly,
and The Right to Petition.

Are all of these absolute rights?

Freedom of expression is not an absolute right.
Instead, the private right to freedom of expression must be balanced against the public good.

Establishment Clause

A provision of the First Amendment that prohibits Congress from establishing an official government-sponsored religion.

Exercise Clause

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise of religion.

Free Speech and Press Clause

Congress shall make no law abridging the freedom of speech, or of the press.

Right to Assemble Clause

Congress shall make no law the right of the people to peaceably assemble.

Right to Petition Government on Grievances

Right to petition the government for a redress of grievances.

Are 1st amendment guarantees absolute?

No

Is speech just spoken or written words?

No

General Rule of the 1st Amendment

Speech regulation must be content neutral.

Time, place, and manner.

NEVER regulated because of its message, its ideas, its subject matter, or its content.

Police dept. of Chicago v. Mosley

Issue Presented:
*Chicago adopted an ordinance prohibiting picketing within 150 feet of a school during school hours; the law made an exception for peaceful labor picketing.
Mosley had been picketing near a public high school; he was protesting "black discrimination." Mosley sought a declaration that the ordinance was unconstitutional.

Question:
*Does the Chicago ordinance violates the freedom of speech Clause of the First Amendment?

Summary:
*The exemption for labor picketing violated the equal protection clause. It did not make a clear distinction between peaceful labor picketing and other peaceful picketing. Government regulation of message content is presumed unconstitutional unless there are compelling justifications.

GOVERNMENT MAY NEVER REGULATE SPEECH "BECAUSE OF ITS MESSAGE, IDEAS, SUBJECT MATTER, OR CONTENT"*

Unprotected Speech Form;
1st amendment offers no protection or safe harbor for:

1. Obscenity
2. Defamation
3. Speech that incites

Miller v. California

Issue Presented:
*Miller, after conducting a mass mailing campaign to advertise the sale of "adult" material, was convicted of violating a California statute prohibiting the distribution of obscene material.
*Some unwilling recipients of Miller's brochures complained to the police, initiating the legal proceedings.

Question:
*Is the sale and distribution of obscene materials by mail protected under the First Amendment's freedom of speech guarantee?

Summary:
*The Court held that obscene materials were not protected under the First Amendment

Miller v. California's 3 Part Test For Obscenity

1. explicitness
2. repetition
3. pandering

1. Whether the average person, applying contemporary community standards, would find that the work taken as a whole, appeals to the prurient interest

2. Whether the work depicts or describes in a patently offensive way sexual conduct defined by state law

3. Whether the work, taken as a whole, lacks literacy, artistic, political, or scientific value

* Moved away from Justice Stewarts "I know it when I see it"

Challenge of Applying Miller to Online Content

Miller has a "community standard"

Internet blurs the traditional community/state/nation boundary.

Community

People living in the same district with the same laws.

*Bland v Sheriff Roberts

Liked opposition of sheriff on Facebook, 4th circuit court of appeals holding-1st amendment rights, like displaying a political sign in one's front yard;
was appealed

From whom does the 1st amendment give you protection?

Federal Government and Congress

Madison's Version of the 1st Amendment

States and Government

How does the 14th amendment relate?

protects from state and local governments

Regulating Indecency in Broadcasts

FCC v. Pacifica Foundation
(The Carlin 7 Dirty Words Broadcast)

FCC v Fox, 2nd Supreme court Case
(2nd Supreme Court Case)

FCC v. Pacifica
(The Carlin 7 Dirty Words Broadcast)

Establishes the precedent that time, place, and manner of indecent broadcasts can be regulated.

And that the material did not have to rise to obscenity.

Broadcasting

_______ has the most limited 1st amendment protection.

Extends to the privacy of the home and it is impossible to completely avoid those that are patently offensive.

Uniquely accessible to children.

FCC 2001

Penalties on nudity and profanity for broadcasts from 6am - 10pm

3 Factor Approach
- Explicitness
- Repetition
- Pandering

In 2004 fleeting expletives were added.

Fleeting Expletive

The uttering of a one-off cuss word.

One random offensive word that is broadcast; wasn't originally fined for this but now the rule has changed and you can be fined.

Chilling

A situation where speech or conduct is suppressed by fear.

Tendency of reporters to self-censor because of fear of possible legal action

FCC v. Fox

Issues relate to the FCC regulations of nudity and fleeting expletives.

2nd circuit ruled regulations unconstitutional for vagueness leading to inconsistent application.

Ruling at Supreme Court: Held FCC gave insufficient notice since rules changed.

Court does not address 1st amendment concerns.

NY v. Ferber

Child pornography can never be a form of protected speech.

Child pornography is legally obscene.

Ginsberg v. NY

Constitutional precedent that pornography can be regulated for minors.

A NY state made it illegal to willfully sell material "harmful to minors" (depicting nudity) to someone under 17.

Unsuccessful Attempts To Regulate Porn on the Internet To Protect Minors

1. Reno v. ACLU
2. Ashcroft v. ACLU
3. Ashcroft v. Free Speech Coalition

Internet and Obscenity/Indecency

Widespread availability of porn on the internet let to the Communications Decency Act of 1996 (CDA) to protect children.

Communication Decency Act of 1996 (CDA)

"The chat room law"

2 Provisions:
1- "Indecent Transmissions" and Patently Offensive Display"

2- Prohibits the knowing transmission or display of obscene or indecent messages to recipients under 18

Penalties: Fines and/or 2 year imprisonment

There was a good faith defense

Reno v ACLU

Facts: Ruled the Communications Decency Act unconstitutional.

ACLU wins. Chat room not as invasive as radio or television, seldom encountered by accident. Didn't follow Miller test.

ACLU wins because the CDA was unconstitutionally vague.

Indecency does not equal obscenity.

Reno v. ACLU con't

1. "Each medium of expression... may present its own problems... special justification of regulation (exist) for broadcast media that are not applicable to other speakers... These factors are not present in cyberspace."

2. The internet is "not as invasive as TV or radio." Seldom is content "encountered by accident."

3. The importance of having to take "affirmative steps" to encounter the material."

4. Provisions are vague (did not follow the Miller test), penalties were severe, and could operate to "chill" legitimate speech.

5. "The burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legit purpose the statute was enacted to serve." (This statute could not be construed to be narrowly tailored).

6. "Free expression on the internet is entitled to the highest level of 1st amendment protection.

What was Reno v ACLU ruled?

Unconstitutional for vagueness (indecent does not equal obscenity).

Ashcroft v ACLU

Went to Supreme Court twice over Child Online Protection Act (COPA).

Law used the Miller standard to define what is harmful to minors.

Law stated operators of commercial sexually explicit websites must collect ID in the form of a credit card number before visitors could access the material.

Found unconstitutional for not passing strict scrutiny.

What was Ashcroft v. ACLU Ruled?

Found unconstitutional for not passing strict Scrutiny.

Ashcroft v Free Speech Coalition

Struck down Child Pornography Prevention Act (CPPA) of 1996 as substantially over broad.

(Would have made Romeo and Juliet illegal)

Prohibits any visual depiction including film, photo or computer generated image that is of OR appears to be of OR suggests a minor engaging in sexually explicit conduct.

Unconstitutionally over broad and chilling.

What was Ashcroft v Free Speech Coalition ruled?

Unconstitutionally overbroad and chilling

Constitutional regulation of Porn on Net for Minors

US v American Library Association

US v American Library Association
(The Multnomah Case)

CIPA provided funding for library computers and internet access but required those libraries to use filters.

i. Challenged by libraries as being an unconstitutional prior restraint that does not meet strict scrutiny.

ii. US S Ct. found law constitutional under Rust using rational review.

Filtering software was a reasonable way of helping to guard against porn & does not violate the First Amendment.

Lower Burden

Only that the measure is reasonable way.

Strict scrutiny is a tougher standard

What was The Multnomah Case- US v American Library Association ruled?

constitutional

Prior Restraint

Term referring to a government's proscription (ban) to prevent materials or speech from being disseminated (spread).

Strict Scrutiny

A standard of judicial review.

A Supreme Court test to see if a law denies equal protection because it does not serve a compelling state interest and is not narrowly tailored to achieve that goal.

Strict Scrutiny 3 Prong Test

1. Compelling government interest

2. Law/policy is narrowly tailored

3. Uses the least restrictive means for achieving that interest

When is strict scrutiny used?

-When a fundamental constitutional right is in question.
-When a government law uses a "suspect classification."

Rust Standard

Government has broad latitude to further public policy and sets limits that public funds spent for those purposes are authorized.

Incite

To encourage, bring about, to move to action.

Speech That Incites

1. Unprotected Speech
2. True Threats
3. Fighting Words

True Threats

Unconditional.

Threatening communication that can be prosecuted under the law.

Imminent, lawless action standard.

Fighting Words

Words intentionally directed at a listener with malice to cause listener to immediately retaliate.

Their utterance inflicts injury and an immediate breach of peace.

Old Legal Standard of Inciteful Speech

Clear and present danger Rule
from Schenck v. US

"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic."

"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

New Legal Standard of Inciteful Speech

Current test for speech that incites:

-Imminent lawless action test (Brandenburg v. Ohio)

Whether the speech is intended to and is likely to bring about imminent lawless action.

"These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

Schenck v. US

Clear and Present Danger Rule

Distributed leaflets to draft-age men, urging resistance to induction, could be convicted of an attempt to obstruct the draft, a criminal offense.

Brandenburg v. Ohio

Imminent Lawless Action Test

KKK Brandenburg wins

A leader of the KKK made a speech at a rally and was later convicted under an Ohio criminal syndicalism law. The law made it illegal to advocate or assemble for a crime.

Jake Baker Case

The case against him (5 counts) for violating 18 USC 875 dismissed.

- Exchange of emails with Gonda detailing fantasy/plans for rape, torture murders

-Was found that it was not a credible or " true threat."

-Was determined Baker was within 1st amendment writes to compose his "story/fantasy emails" since the stories were not a true threat.

When does hate speech fall outside the first amendment? (not protected)

When it constitutes a true threat or fighting words.

Only hate speech that meets the imminent lawless action standard (likely to incite immediate violence or a threat) in unprotected speech.

Hate speech

Speech that disparages a group based on characteristic.

May be protected under 1st amendment.

American Amusement Machine v. Kendrick

-Indianapolis ordinance limited access to minors of games depicting violence by requiring owners of facilities with 5 or more game machines to have a separate area with parent or guardian accompaniment.

-Ordinance found to violate 1st Amendment.

Brown v. Entertainment Merchants

Even violent video games are protected under the 1st amendment.

Prohibits sale or rental of violent video game to people under 18.

The First Amendment restricts a state from restricting the sale of violent video games to minors.

Is violence part of obscenity?

"Violence is not a part of the obscenity that the Constitution permits to be regulated."

No, Obscenity is only concerned about depictions of sexual conduct.

US v. Stevens

New categories of speech for government regulation are not created via balancing tests.

Only area for government to restrict obscenity, incitement, and fighting words.

No new categories

Does the regulation of violent video games meet strict scrutiny?

No, there will be no category based restriction aimed at children;

No, does not meet strict scrutiny because the violence is considered to be like an art form, like the action in TV or movies and is not directly related to the violence that can be brought about in kids.

The Central Hudson Standard

Government regulation does not violate 1st amendment if:

1. Commercial speech concerns an illegal activity OR

2. Commercial speech is misleading OR

3. The government's interest is substantial

The regulation advances the interest and is narrowly tailored (as long as this regulation would pass strict scrutiny)

The Silk Road

An online black market

The first modern dark net market

Best known as a platform for selling illegal drugs

Bazaar for illegal activity

Silk Road- How did parties find the website?

Anonymizer- Hard to Trace

TOR- Take data, wrap in encryptic layers and bounce on layers, hard to find where it comes from.

Silk Road- Currency

Bitcoin- Internet version of cash.

Hard to trace.

A Tumbler would juggle the bitcoin around.

Silk Road- Dread Pirate Roberts

Ross William Ulbricht

Anonymous name the creator of the Silk Road went by.

Was caught when he logged into an email account with his real name.

SPAM

Unwanted/unsolicited email

Spam, Coining of the Term

Came from the Monty Python Flying Circus skit

Hormel's position

Why is spam used?

Cheap

People respond to it

Cyber Promotions v AOL case and the first amendment

Facts:
- AOLs servers were swamped by spam
- They installed blockers
- Cyber sued AOL
- AOL countersued Cyber to recover costs of dealing with the spam

Issue:
Did Cyber have a 1st amendment right to send the email?

Holding:
- AOL is not a state entity and as such is not subject to 1st amendment right challenges
- Cyber has no 1st amendment right to send unsolicited email to AOL members
- AOL got the money

CAN SPAM Act

Controlling the Assault of Non‐Solicited Pornography And Marketing Act of 2003.

Regulated businesses use of email spam.

CAN SPAM Act Messages

1. Transactional and Relationship
(Fewer requirements)

2. Commercial
(With mailing list consent)

3. Unsolicited

Transactional and Relationship Requirements

Must include correct header info

Must not disguise the ID of the computer sending message

Commercial Requirements

All of the above plus:

Mechanism to unsubscribe

Postal address contact

Unsolicited Requirements

All of the above plus:

"Clear and conspicuous" notice that it's an advertisement.

Weaknesses of CAN SPAM

Makes sending spam legal if you meet the guidelines;

Enforcement:
-Unenforceable
-Largely unenforced

CAN SPAM penalties

$250/mg up to $2 million

Criminal penalties for hackers and those who falsify headers

Canadian Anti-spam law applies to

Applies to commercial emails, texts and social media messages sent to Canadian residents

Canadian Anti-spam law requires

Moves to an OPT IN model

Express consent on the part of the recipient

Conspicuous presentation

Defamation (Requires 3 Elements)

What has been said to the public is not true and has damages the reputation of the plaintiff

1. False statement of fact about plaintiff by defendant

2. Publication - Communicated to a 3rd party

3. Damages the reputation of the plaintiff

NY Times v. Sullivan
(Defamation element for public figures)

In addition to the three requirements, public figure plaintiff must prove that the defendant acted with actual malice.

NY Times v Sullivan

Raise funds for MLK and to talk bad about Alabama police force.

NY times won because they didn't act with actual malice.

Actual Malice

The deliberate intent to cause harm that exists when a person makes a statement with either knowledge of its falsity or reckless disregard of the truth.

Actual malice is required to establish defamation against public figures.

Defamation Forms

Slander - oral
Libel - written

Negligence Standard

Unreasonable

A reasonable person would not do it

Gertz

Defamation 4 per se categories

1. Disease

2. Criminal actions

3. Misconduct related to profession or business

4. Sexual misconduct

What does per se change?

False statements involving these items are always actionable

You don't have to prove that the statement harmed your reputation.

Defenses and exceptions to defamation

1. Is it an opinion?

2. Is it a fact that can be verified?

3. Is it "merely" offensive?

4. Is it hyperbole?

5. Is it libel proof?

Opinion

Generally protected speech

Stating false information is not an opinion

Fact

Capable of being objectively verified

"Merely" Offensive

If the meaning conveyed cannot be proven false

Just being offensive isn't enough

Vogel v. Felice

Vogel v Felice (merely offensive)

The "top 10 dumb a**" example

Run for public office

Hyperbole

No smart person would believe it was real

Hustler v. Falwell

Hustler v Falwell (hyperbole)

Falwell wouldn't not give interview talking about sleeping with his mom;

Hustler won

Libel proof

New information wouldn't make you think less of the person because they are already thought of poorly

Lindsey Lohan and Charlie Sheen

Generally, can you successfully sue an interactive computer service for publishing a user's defamatory remarks?

No

Online defamation examples

- Can't sue instagram if friend defames you on it
- Courtney Love- suit vs Dawn b/c said she was a criminal- Love looses
- Courtney Love- suit against lawyer- Love not guilty b/c she didn't know if lawyer had been bought off or not
- Courtney Love- no anti-SLAPP motion
- At midnight Yelp- Chuck e cheese vs jail

Free Speech in Schools

Tinker Standard