Speech: First Amendment

From Internet Law Treatise

"[T]he First Amendment . . . presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all." United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943) (opinion of the court by Judge Learned Hand), aff'd, 326 U.S. 1 (1945)

"The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system." Stromberg v. California, 283 U.S. 359, 369 (1931). "[I]t is a prized American privilege to speak one's mind, although not always with perfect good taste, on all public institutions," Bridges v. California, 314 U.S. 252, 270 (1941). This opportunity is to be afforded for "vigorous advocacy" no less than "abstract discussion." N.A.A.C.P. v. Button, 371 U.S. 415, 429 (1963).

As the ACLU v. Reno, 521 U.S. 844 (1997), cases demonstrate, regulation of content over the Internet is challenging in light of the protections guaranteed under the First Amendment of the U.S. Constitution.

Table of contents

1 The Child Pornography Prevention Act of 1996 (CPPA) 2 Online First Amendment Cases 2.1 Online Student Speech 2.2 Prior Restraint 3 Anonymity 3.1 Right to Anonymous Internet Speech 3.2 Right to Read Anonymously

The Child Pornography Prevention Act of 1996 (CPPA)

The Child Pornography Prevention Act of 1996, codified at 18 U.S.C. § 2251 (http://www.law.cornell.edu/uscode/18/2251.html) et seq., expanded the federal definition of child pornography to include material that “appears to” depict a minor. The definition faced constitutional challenge in numerous jurisdictions, with varying results. The U.S. Supreme Court ultimately resolved the circuit split and held sections of the CPPA to be overbroad and unconstitutional.

1. Ashcroft v. The Free Speech Coalition, 535 U.S. 234 (2002). The Supreme Court held Sections 2256(8)(B) and 2256(8)(D) of Title 18 to be overbroad and unconstitutional. The CPPA prohibited virtual child pornography or any “visual depiction” that “is, or appears to be, of a minor engaging in sexually explicit conduct.” 18 U.S.C. § 2256(8)(B). The CPPA also banned depictions of sexually explicit conduct that are “advertised, promoted … in such a manner that conveys the impression that the material is or contains a visual depiction of a minor engaging in sexually explicit conduct.” Id. at 2256(8)(D). Respondents argued that the “appears to be” and “conveys the impression” language in the CPPA was unconstitutionally overbroad and that enforcement of the CPPA would unconstitutionally chill speech because it would prohibit a substantial amount of protected expression. The Government argued that the CPPA was necessary to protect children from sexual predators, that the speech prohibited by the CPPA was indistinguishable from child pornography, and that by eliminating “virtual child pornography” the CPPA would eliminate the market for pornography produced using real children. The Supreme Court rejected the Government’s arguments and held that the Government failed to show a causal link between “virtual child pornography” and harm to actual children. Also, the Court reasoned that the CPPA would punish material that does not qualify as obscenity or child pornography, such as Hollywood movies that use adult actors playing the role of teenage children engaging in sexual conduct.

Online First Amendment Cases

1. Planned Parenthood of the Columbia/Willamette, Inc. v. American Coalition of Life Activists, 41 F. Supp. 2d 1130 (D. Or. 1999). A federal jury found that a website called “The Nuremberg Files,” which contained antiabortion statements along with a list of names, addresses, and other information identifying individuals thought to perform or be sympathetic to abortion, constituted a “true threat” and therefore was unprotected speech under the First Amendment. The court subsequently entered a permanent injunction against publication of the list and related materials. In Planned Parenthood v. American Coalition of Life Activists, reh’g en banc, 290 F.3d 1058 (9th Cir. 2002), the Ninth Circuit affirmed the district court’s ruling that the statements and lists in “The Nuremberg Files” were unprotected speech to the extent they impliedly threatened physicians who perform abortions. However, the court ruled that the political statements in “The Nuremberg Files” were protected speech to the extent they did not pose a “true threat.”
2. Mainstream Loudoun v. Board of Trustees of Loudoun County Pub. Libr., 24 F. Supp. 2d 552 (E.D. Va. 1998). The district court, applying strict scrutiny, found that the Loudoun County Library’s policy of using filtering software to block sexually explicit Internet sites violated the First Amendment. While the court agreed that the library had a compelling state interest in minimizing access to illegal pornography and avoiding creation of a sexually hostile environment, the court found that the library’s evidence, consisting solely of three isolated incidents nationally and no employee complaints, was not sufficient to establish that the policy was necessary to further the asserted interests. The court also found that the policy was not narrowly tailored: less restrictive alternatives were available, and the policy restricted what adults could read to a level appropriate only for minors. The policy also constituted an impermissible prior restraint because it lacked adequate procedural safeguards. This holding is reversed by the Children’s Internet Protection Act (see subsection D, above), which was upheld as constitutional in United States v. American Library Ass’n, 123 S. Ct. 2297 (2003) (see subsection D(5), above).
   1. Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684 (2001). The court dismissed a lawsuit challenging the City of Livermore libraries’ policy of open access to the Internet. Plaintiffs had argued that the library should be required to install filtering software on their computers to prevent children’s access to online pornography.
3. Urofsky v. Gilmore, 167 F.3d 191 (4th Cir. 1999). The court upheld a Virginia law restricting state employees from accessing “sexually explicit” material on computers owned or leased by the state.
4. Beussink v. Woodland R-IV School Dist., 30 F. Supp. 2d 1175 (E.D. Mo. 1998). A principal discovered a student’s online home page, which the student had created on his home computer and which was highly critical of the school administration. The principal immediately suspended the student for ten days, thereby automatically lowering his grades as a result of application of the school’s absenteeism policy. The student sued for injunctive relief. The court found the home page to contain “provocative and challenging speech, … which is most in need of the protections of the First Amendment.” Id. at 1182. The court enjoined the school from applying the absenteeism policy to lower the student’s grades or using any other future sanction related to the home page. The court also enjoined the school from restricting the student’s use of his home computer to re-post the home page, which he had removed the day he was suspended.
5. Computer Xpress v. Jackson, 93 Cal. App. 4th 993 (2001). The court ruled that criticism of public companies on Internet message boards are of public interest and protected by the First Amendment and by California’s anti-SLAPP statute. The court held that even if the speaker were a competitor of plaintiff, free speech rights still attached.
6. Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). Plaintiffs brought suit against defendant for posting and linking to DeCSS, a program that circumvents a DVD’s Content Scrambling System (“CSS”) encryption technology, allowing users to make unauthorized copies of DVDs on their computers. Having concluded that computer code is “speech” within the meaning of the First Amendment, the court held that the anti-trafficking provisions (prohibiting the posting or linking of DeCSS on the Internet) of the Digital Millennium Copyright Act (“DMCA”) satisfied First Amendment scrutiny. The court reasoned that DeCSS also has a nonspeech component because DeCSS’s functional capability does not constitute speech within the meaning of the First Amendment. Because the anti-trafficking provisions of the DMCA regulate “solely on the basis of the functional capability of DeCSS … ‘without reference to the content of the regulated speech,’” the court held that these provisions are content-neutral regulations that avoid “burdening ‘substantially more speech than is necessary to further the government’s legitimate interests” in preventing unauthorized access to encrypted copyrighted material. Id. at 454-55 (citations omitted). The court affirmed the injunction barring defendants from posting and linking to DeCSS.
7. United States v. Elcomsoft Ltd., 203 F. Supp. 2d 1111 (N.D. Cal. 2002). A Russian software company moved to dismiss a suit brought against it under the DMCA’s anti-circumvention provisions. The company manufactured a software tool that allowed users to bypass use restrictions on files formatted for the Adobe eBook Reader. The company claimed that Section 1201(b) of the DMCA was unconstitutionally vague, that it violated the First Amendment and fair use rights, and that Congress had exceeded its constitutional power in enacting the DMCA. The court held that the DMCA did not impermissibly impinge on fair use rights because the ban on circumvention tools did not prohibit actual circumvention by individuals. For example, users can still quote portions of text by manually re-typing them. The court held that the statute was not vague and that the provisions survived First Amendment scrutiny because they met the requirements of intermediate scrutiny and did not attempt to ban a particular type of speech. Defendant’s overbreadth challenge likewise was rejected. Finally, the court held that Congress did not exceed the scope of its power under the U.S. Constitution because the provisions were within the ambit of the Commerce Clause and their terms were not irreconcilably inconsistent with the Copyright Clause.
8. James v. Meow Media, Inc., 300 F.3d 683 (6th Cir. 2002), cert. denied, 123 S. Ct. 967 (2003). The Sixth Circuit Court of Appeals rejected arguments by plaintiffs that pornography website operators were liable under negligence and product liability theories for a high school shooting rampage. Defendants had no duty of care to plaintiffs, and the grave constitutional concerns raised by attaching tort liability to ideas and images provided an additional policy reason not to impose a duty of care upon defendants. Finally, the court held that Internet transmissions were not sufficiently tangible to constitute products in the sense of their communicative content.
9. Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 436 (E.D. Pa. 1996). Plaintiffs argued that they had a First Amendment right to send spam emails to AOL subscribers. The court found that AOL’s practice of blocking spam emails did not violate plaintiffs’ First Amendment rights, and that neither the Internet nor AOL’s access to it constitutes a public system for First Amendment purposes.
10. DVD Copy Control Association v. Bunner, 31 Cal. 4th 864 (2003). A licensor of content scrambling system technology (CSS) received a preliminary injunction based on trade secret misappropriation claims against a website operator who distributed DeCSS, a program that circumvents CSS, on his Web site. The court of appeal held that the injunction constituted an impermissible prior restraint under free speech principles, and the California Supreme Court reversed. The court found that the injunction was content neutral and, applying a least restrictive means balancing test, burdened no more speech than was necessary to serve the important government interest of protecting trade secrets.

Online Student Speech

As a general matter, students do not "shed their constitutional right to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School District 393 U.S. 503 (1969) (permitting public school students to wear black armbands to class in symbolic protest of the Vietnam War). However, Tinker also held that free-speech rights can be limited when the speech "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." See also Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) (upholding suspension of high-school student Matthew Fraser for a student government nomination speech “including the use of obscene, profane language or gestures.”)

1. Mahaffey ex rel Mahaffey v. Aldrich, 236 F.Supp.2d 779 (E.D. Mich. 2002). When a high school student posted content on a friend’s website, including a list titled “people I wish would die” and suggestions that visitors “[s]tab someone for no reason,” the Waterford School District suspended him. Id. at 781-82. The court found that the statements did not constitute a true threat because “a reasonable person in Plaintiff’s place would not foresee that the statements .. would be interpreted as a serious expression of an intent to harm or kill anyone,” and that regulating the student’s speech “without any proof of disruption to the school or on campus activity in the creation of the website was a violation of [his] First Amendment rights.” Id. at 786.
2. Latour v. Riverside Beaver School District, 2005 WL 2106562 (W.D. Pa. 2005) When a school district expelled a student for posting four rap songs he had written and recorded on an internet site, the court found that there was “not demonstrated that the songs constituted true threats or caused a material and substantial disruption,” and granted a preliminary injunction against the expulsion under the First Amendment. Id. at *3
3. Flaherty v. Keystone Oaks School Dist., 247 F.Supp.2d 698 (W.D. Pa. 2003). A student at Keystone Oaks High school posted three messages on an internet message board, both from school and from home. Id. at 700-01. Pursuant to their policies listed in the Student Handbook which prohibit “inappropriate, harassing, offensive or abusive” behavior, the school disciplined the student. Id. at 701. Although the student and school reached a settlement regarding his own punishment, the student and his family continued to press the issue of whether the Student Handbook’s guidelines were unconstitutionally vague. Id. at 701. On this subject, the court held that because portions of the handbook “fail[ed] to limit a school official’s authority to discipline a student’s expression to instances where the expression caused, or there exists a realistic threat of, a substantial disruption to school operations,” they were unconstitutionally overbroad. Id. at 705. Further, because “the policy could be (and is) read by school officials to cover speech that occurs off school premises and that is not related to any school activity in an arbitrary manner,” the policies were unconstitutionally overbroad and vague. Id. at 706.
4. Beidler v. North Thurston County (Wash.) Sch. Dist., No. 99-2-00236-6 (Thurston Cty. Super. Ct. July 18, 2000) website administrator).
5. Ubriaco v. Albertus Magnus High School, No. 99 Civ. 11135 (JSM) (S.D.N.Y. July 21, 2000) (dismissing claim contesting private school expulsion for content on personal website).
6. Beussink v. Woodland School District, 30 F. Supp.2d 1175 (E.D. Mo. 1998). A federal court found the First Amendment protected a student’s website that criticized the school, teachers and administrators. The website was created with the student’s personal computer and private Internet account. However, the court noted that a classmate viewed his site at school, and therefore applied the "material disruption" standard of Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969). Likewise, in J.S. ex rel H.S. v. Bethlehem Area School District, 569 A.2d 638 (Pa. 2002), the Supreme Court of Pennsylvania held that despite the fact that the website was not actually located at the school, because it “was aimed at a specific school and/or its personnel” and was “brought onto the school campus or accessed at school by its originator,” the speech was to be consider on-campus speech.

Prior Restraint

“[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). Accordingly, any prior restraint “bears a heavy presumption against its constitutional validity.” U.S. v. Quattrone, 402 F.3d 304, 310 (2d Cir. 2005) (defining prior restraint as a “judicial order that suppresses speech…on the basis of the speech’s content and in advance of its actual expression.”).. Furthermore, “[a] prior restraint is not constitutionally inoffensive merely because it is temporary.” Id.

Ford Motor Co. v. Lane, 67 F.Supp.2d 745 (E.D. Mich. 1999), applied the Proctor & Gamble (discussed below) analysis to reject a prior restraint on online speech, holding “[W]hile the reach and power of the Internet raises serious legal implications, nothing in our jurisprudence suggests that the First Amendment is circumscribed by the size of the publisher or his audience.”)

In Proctor & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996), Business Week, which was not a party to the underlying civil dispute between two corporate litigants, obtained documents from the litigation that were subject to a protective order. Id. at 222. Without affording Business Week prior notice or an opportunity to be heard, the district court issued a series of temporary injunctions forbidding the magazine from publishing the documents. Id. at 222-23. Subsequently, the district court held a hearing inquiring into the manner in which Business Week came into possession of the documents and issued a permanent injunction against publication. Id.

On appeal, the Sixth Circuit concluded that all of the injunctions were impermissible prior restraints on pure speech in violation of the First Amendment. Id. at 225-27. The court held that a party seeking even a temporary injunction against pure speech must establish that “publication [would] threaten an interest more fundamental than the First Amendment itself.” Id. at 227. While admitting that restrictions on the dissemination of information obtained in discovery may be permissible against parties, see Seattle Times v. Rhinehart, 467 U.S. 20 (1984), the court held that similar restrictions on independent nonparties is impermissible, see Proctor & Gamble, 78 F.3d at 225. Moreover, the court noted that although brief injunctions to facilitate judicial deliberation are generally proper, “when that approach results in a prior restraint on pure speech by the press it is not allowed.” Id. at 226; accord In re Providence Journal Co., 820 F.2d 1342, 1351 (1st Cir. 1986).

Anonymity

The Constitution provides a right to speak anonymously, as “[e]ven the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names.” Talley v. California, 362 U.S. 60, 65 (1960); see also Buckley v. American Constitutional Law Found., 525 U.S. 182, 197-200 (1999) (upholding the First Amendment right to speak anonymously by striking down statute requiring that pamphleteers wear name badges).

Right to Anonymous Internet Speech

Each of the courts to consider the issue has further found that this First Amendment right requires a heightened evidentiary showing from the subpoenaing party before enforcement of subpoenas to identify anonymous Internet speakers. See main article on anonymity.

Right to Read Anonymously

It “is now well established that the Constitution protects the right to receive information and ideas.” Stanley v. Georgia, 394 U.S. 557, 564 (1969) (citation omitted). That right is unacceptably chilled when the government has unchecked access to reading records: “Once the government can demand of a publisher the names of the purchasers of his publications, the free press as we know it disappears,” replaced by the speech-chilling “spectre of a government agent” looking over every reader’s shoulder. United States v. Rumely, 345 U.S. 41, 57 (1953) (Douglas, J., concurring); see also Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044, 1053 (Colo. 2002) (finding that search warrant for bookstore records reflecting a customer’s purchases intruded on customer’s First Amendment right to read anonymously).