Speech: First Amendment

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"[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.

The Child Pornography Prevention Act of 1996 (CPPA)

The Child Pornography Prevention Act of 1996, codified at 18 U.S.C. § 2251 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. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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”); Morse v. Frederick, 551 U.S. 393 (2007) (holding that school officials did not violate student’s First Amendment rights by suspending him and confiscating a banner that read “BONG HiTS 4 JESUS” after he displayed the banner at a school-sanctioned and school-supervised event).

The court in Tinker went on to explain that a substantial disruption is “conduct by the student, in class or out of it [while still under school control], which for any reason-whether it stems from time, place, or type of behavior-materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech." Tinker, 393 U.S. at 519. However, mere fear of disruption is not grounds for speech regulation. As noted in Tinker, "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." Id. at 508. The court goes on to note that, "a mere desire to avoid the discomfort and unpleasantness that always accompany and unpleasant viewpoint", is no reason to limit student speech. Id. at 509. At the same time, a school is not obligated to allow potentially disruptive speech to occur. If the school is able to forecast that a disruption will occur as a result of student speech, based on past history involving similar speech or similar evidence, then the school may regulate the student's speech. Further when, as in Tinker, the student speech is political, the school has much less leeway to regulate the speech.

Since Tinker, the courts have determined that there are several instances in which a school can regulate speech regardless of the speech's threat to substantially disrupt the operation of the school. In Bethel, the court upheld the school's decision to suspend a student, who gave a speech full of sexual innuendo at a student assembly, for violating the school's rule prohibiting "obscene, profane language." In doing so, the court noted that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings." Bethel, 478 U.S. at 682. The court goes on to state, that a school has the responsibility to "prepare pupils for citizenship in the Republic" and as such is expected to impart "the habits and manners of civility." Id. at 681. Moreover the court reasoned that a substantial disruption analysis was unnecessary, as a school is allowed to prohibit vulgar or lewd speech in order to advance its basic educational mission.

In addition to regulating speech that conflicts with the concept of manners and civility, schools are also allowed to regulate speech that might be constituted as school sponsored. In Hazelwhood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 the court found that a school principal's decision to withhold two pages of a student run school newspaper from publication did not a violate the First Amendment. In doing so, the court noted that schools may exercise greater control over speech that might be interpreted as school sponsored and that the substantial disruption test found in Tinker is not necessary in such situations.

In J.S. et al v. Blue Mountain School District, 593 F.3d 286 (3rd Cir. 2010), a student was disciplined by the school district for her off-campus creation of a vulgar, fake profile on the social networking site, Myspace, that portrayed the profile's owner as the school principal. The court found that the profile had a substantial affect on-campus, and thus fell within the realm of "student speech subject to regulation under Tinker." Id. As such they decline to engage in the two step analysis whether the student's speech came on campus, and then if it did, whether whether the school infringed on the student's First Amendment rights by disciplining her for said speech. As such, the court moved directly to the substantial disruption analysis defined in Tinker. Here, the court found that the disruptions noted by the school administrators in their depositions, which included students talking in class for a few minutes and school officials having to rearrange their schedules, were minor inconveniences that did not amount to a substantial disruption. Despite this finding, the court went on to reason that "the underlying cause for [the principal's] concern about the profile was its particularly disturbing content, not a petty desire to stifle speech critical of him . . . Therefore, [they were] sufficiently persuaded that the profile presented a reasonable possibility of a future disruption, which was preempted by [the principal's] expeditious investigation of the profile, which secured its quick removal, and swift punishment of its creators." Id. at 24. The court further opines that the Internet's ability to allow for the rapid dissemination of information, invalidates a narrow reading of Tinker that limits its application to the physical boundaries of the school. As such, the court holds, "that off-campus speech that causes or reasonably threatens to cause a substantial disruption of or material interference with with a school need not satisfy any geographical technicality in order to be regulated by Tinker."

In contrast, in Layshock et al v. Hermitage School District et al., 593 F.3d 249 (3rd Cir. 2010), another Third Circuit opinion issued on the same day, the court issued a ruling essentially the opposite of Blue Mountain. In Layshock, a student also created a fake profile of his school's principal on Myspace and was punished. However, in this case, the court found that there was no evidence to show tha the student's behavior created a substantial disruption on the school campus. The school argued that the student's speech entered the schoolhouse gate when he accessed the school website to download a picture for use on the fake profile, and that lewd, vulgar, and obscene language used on the school's campus is not protected under the First Amendment. The court in Layshock, however, reasoned that the student's speech was not school based. The court found, that while the language on the profile the student created, was unquestionably vulgar, a student's use of "the District's web site does not constitute entering the school, and that the District is not empowered to punish his out of school expressive conduct under the circumstances here."

Online Student Speech Cases

  1. 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.
  2. Beidler v. North Thurston County (Wash.) Sch. Dist., No. 99-2-00236-6 (Thurston Cty. Super. Ct. Wa. July 18, 2000). The court ruled that school violated the First Amendment rights of a student in punishing him for creating a website that ridiculed a school administrator. The court did not decide whether a website could be considered in-school speech, but found that the evidence did "not show a material and substantial disruption of the work or discipline of the school . . . regardless of where the geographical limits of school authority may lie . . . ."
  3. Ubriaco v. Albertus Magnus High School, No. 99 Civ. 11135, 2000 U.S. Dist. LEXIS 10141 (S.D.N.Y. July 21, 2000) (dismissing claim contesting a private school's decision to expel a student for content on personal website because acts of private high school were not state action).
  4. Emmett v. Kent School District No. 415, 92 F. Supp. 2d 1088 (W.D. Wash. 2000). The court issued a Temporary Restraining Order enjoining the suspension of a student for making a parody website that included mock obituaries. The court concluded that "[a]lthough the intended audience was undoubtedly connected to Kentlake High School, the speech was entirely outside of the school's supervision or control." Id. at 1090. The school later settled, agreeing to pay the student $1 in damages and $6,000 in legal fees.
  5. 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.
  6. J.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002). The Supreme Court of Pennsylvania held that a student’s website, which contained profane language and made exaggerated threats against educators at his school, was not a “true threat” under First Amendment law. The court nonetheless upheld the student’s suspension by the school district. In doing so the court struggled with the issue of student websites created off campus. It ultimately held that where speech is aimed a particular school or its educators and is brought onto campus or accessed on campus by its originator, the speech will be considered on-campus speech. The court said that this determination could also be reached where a student posts school-targeted materials in a manner known to be freely accessible from school grounds and where others in fact access the speech on campus.
  7. 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.
  8. 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.
  9. J.S. et al v. Blue Mountain School District, 593 F.3d 286 (3rd Cir. 2010). The court found that a fake Myspace profile created by a student featuring the student's school principal and alluding to the principal's "engagement in sexually inappropriate behavior and illegal conduct" . . . threatened to substantially disrupt the Middle School regardless of whether [the student's] role in creating the profile was criminal or tortious. Further, the court held that "off-campus speech that causes or reasonably threatens to cause a substantial disruption of or material interference with a school need not satisfy any geographical technicality in order to be regulated pursuant to Tinker."
  10. Layshock et al v. Hermitage School District et al., 593 F.3d 249 (3rd Cir. 2010). A federal court found that the creation of a fake profile for a school principle, created outside of school and which caused no substantial disruption to the school setting, was protected under the student's First Amendment rights. Further the court noted that the student's accessing the school's website did not constitute an entering of the school, thus the school district was not allowed to punish the student's "out of school expressive conduct."
  11. Evans v. Bayer, No. 08-61952-CIV2010, U.S. Dist. LEXIS 12560 (S.D. Fla. Feb. 12, 2010). A student sued her school for suspending her because she made a Facebook group criticizing her teacher. In rejecting the principal's claim of qualified immunity, the court found the speech was off-campus because the student created it at home and did not access it from school, and there was no indication of any disruption at school.

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).

Speech in Virtual Worlds

Under the First Amendment, there can be a right to free speech in a private entity's space if the entity has taken on the role of government (for example, company towns (Marsh v. Alabama, 326 U.S. 501 (1945)). Courts have upheld restrictions in private spaces open to the public. Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551 (1972) (privately-owned shopping mall allowed to keep anti-Vietnam War protestors from distributing handbills); see also Hudgens v. NLRB, 424 U.S. 507 (1976).

State constitutions may provide additional protection. Under the California Constitution, for example, there are free speech rights in private spaces, subject to time, place, and manner restrictions, if the private space might be considered open to the public, as in the case of a shopping mall. PruneYard Shopping Ctr. v. Robins, 592 P.2d 341 (1979); see also Golden Gateway Ctr. v. Golden Gateway Tenants Ass'n, 26 Cal. 4th 1013 (2001); Albertson's, Inc. v. Young, 107 Cal. App. 4th 106 (2003).

In Estavillo v. Sony Computer Entertainment America, 2009 WL 3072887 (N.D. Cal. Sept. 22, 2009), the court held that Sony's PS3 online network is not subject to First Amendment, as a company town or otherwise.

Although the Network does include "virtual spaces" such as virtual "homes" and a virtual "mall" that are used by a substantial number of users ... these "spaces" serve solely to enrich the entertainment services on Sony's private network. In providing this electronic space that users can voluntarily choose to entertain themselves with, Sony is merely providing a robust commercial product, and is not "performing the full spectrum of municipal powers and [standing] in the shoes of the State."

For academic views, see Jack M. Balkin, Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Worlds, 90 VA. L. REV. 2043 (2004); Eric Goldman, Speech Showdowns at the Virtual Corral, 21 Santa Clara Computer and High Technology Law Journal 845 (2005)[1]

Anonymity: Right to Speak and Read Anonymously

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).

The Constitution also provides a right to read anonymously, because 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).

For more information on anonymity and Internet speech, see the main article here.

Right to Receive Information and Ideas

The First Amendment right to free speech includes the right to receive information and ideas. Stanley v. Georgia, 394 U.S. 557, 564, 568, 89 S.Ct. 1243, 1247, 1249, 22 L.Ed.2d 542 (1969) (finding individual right to receive “information and ideas, regardless of their social worth” and right to read obscene material, at least in privacy of home). The following cases also support this access right.

  1. Procunier v. Martinez, 416 U.S. 396, 408, 94 S.Ct. 1800, 1808, 40 L.Ed.2d 224 (1974) (finding individual right to receive uncensored mail from prisoner).
  2. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 1806, 23 L.Ed.2d 371 (1969) (public right of access to social, political, aesthetic, moral and other ideas ).
  3. Lamont v. Postmaster General, 381 U.S. 301, 308, 85 S.Ct. 1493, 1497, 14 L.Ed.2d 398 (1965) (Brennan, J., concurring) (individual right to receive mail publications).
  4. Martin v. City of Struthers, 319 U.S. 141, 143, 149, 63 S.Ct. 862, 863, 866, 87 L.Ed. 1313 (1943) (right to receive home delivery of religious literature ).
  5. Kleindienst v. Mandel, 408 U.S. 753, 762-763 (1972) (stating First Amendment grants right to receive information and ideas).
  6. Thomas v. Collins, 323 U.S. 516, 532 (1945) ("The right...to discuss, and inform people concerning, the advantages and disadvantages of unions and joining them is protected not only as part of free speech, but as part of free assembly.").

Chapter 2 - Content And Speech Regulation
Obscenity · Communications Decency Act - Obscene Materials · Children's Online Protection Act (COPA) · Children's Internet Protection Act (CIPA) · State Attempts At Regulation · First Amendment · Anonymity · International Content Regulation