In a provocative recent article, The Perverse Law of Child Pornography, 101 Colum. L. Rev. 209 (2001), Amy Adler argues that the effort to curb child pornography online -- the kind of pornography that disgusts the most people -- is fundamentally misguided. Far from reducing the incidence of the sexual abuse of children, governmental efforts to curtail child pornography only increase it. A summary of her argument is available here. The full article is available here.

 

The CDA, COPA, and CIPA have one thing in common: they all involve overt governmental action -- and thus are subject to challenge under the First Amendment. Some observers of the Internet argue that more dangerous than these obvious legislative initiatives are the efforts by private Internet Service Providers to install filters on their systems that screen out kinds of content that the ISPs believe their subscribers would find offensive. Because policies of this sort are neither mandated nor encouraged by the government, they would not, under conventional constitutional principles, constitute "state action" -- and thus would not be vulnerable to constitutional scrutiny. Such a result, argues Larry Lessig, would be pernicious; to avoid it, we need to revise our understanding of the "state action" doctrine. Charles Fried disagrees:

Note first of all that the state action doctrine does not only limit the power of courts to protect persons from private power that interferes with public freedoms. It also protects individuals from the courts themselves, which are, after all, another government agency. By limiting the First Amendment to protecting citizens from government (and not from each other), the state action doctrine enlarges the sphere of unregulated discretion that individuals may exercise in what they think and say. In the name of First Amendment "values," courts could perhaps inquire whether I must grant access to my newspaper to opinions I abhor, must allow persons whose moral standards I deplore to join my expressive association, or must remain silent so that someone else gets a chance to reach my audience with a less appealing but unfamiliar message. Such inquiries, however, would place courts in the business of deciding which opinions I would have to publish in my newspaper and which would so distort my message that putting those words in my mouth would violate my freedom of speech; what an organization's associational message really is and whether forcing the organization to accept a dissenting member would distort that message; and which opinions, though unable to attract an audience on their own, are so worthy that they must not be drowned out by more popular messages. I am not convinced that whatever changes the Internet has wrought in our environment require the courts to mount this particular tiger.

"Perfect Freedom or Perfect Control," 114 Harvard Law Review 606, 635 (2000).

The United States may have led the way in seeking (unsuccessfully, thus far) to restrict the flow of pornography on the Internet, but the governments of other countries are now joining the fray. For the status of the struggle in a few jurisdictions, you might read:

·        Joseph C. Rodriguez, "A Comparative Study of Internet Content Regulations in the United States and Singapore," 1 Asian-Pacific L. & Pol'y J. 9 (February 2000). (Singapore)

·        Mark Konkel, "Internet Indecency, International Censorship, and Service Providers' Liability," 19 N.Y.L. Sch. J. INt'l & Comp. L. 453 (2000). (Canada, Maylasia, and China)

2. Threats

When does speech become a threat? Put more precisely, when does a communication over the Internet inflict -- or threaten to inflict -- sufficient damage on its recipient that it ceases to be protected by the First Amendment and properly gives rise to criminal sanctions? Two well known cases addressed that issue from different angles.

The first was popularly known as the "Jake Baker" case. In 1994 and 1995, Abraham Jacob Alkhabaz, also known as Jake Baker, was an undergraduate student at the University of Michigan. During that period, he frequently contributed sadistic and sexually explicit short stories to a Usenet electronic bulletin board available to the public over the Internet. In one such story, he described in detail how he and a companion tortured, sexually abused, and killed a young woman, who was given the name of one of Baker's classmates. (Excerpts from the story, as reprinted in the Court of Appeals decision in the case, are available here. WARNING: This material is very graphic in nature and may be troubling to some readers. It is presented in order to provide a complete view of the facts of the case.) Baker's stories came to the attention of another Internet user, who assumed the name of Arthur Gonda. Baker and Gonda then exchanged many email messages, sharing their sadistic fantasies and discussing the methods by which they might kidnap and torture a woman in Baker's dormitory. When these stories and email exchanges came to light, Baker was indicted for violation of 18 U.S.C. 875(c), which provides:

Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.

Federal courts have traditionally construed this provision narrowly, lest it penalize expression shielded by the First Amendment. Specifically, the courts have required that a defendant's statement, in order to trigger criminal sanctions, constitute a "true threat" -- as distinguished from, for example, inadvertent statements, hyperbole, innocuous talk, or political commentary. Baker moved to quash the indictment on the ground that his statements on the Internet did not constitute "true threats." The District Court agreed, ruling that the class of women supposedly threatened was not identified in Baker's exchanges with Gonda with the degree of specificity required by the First Amendment and that, although Baker had expressed offensive desires, "it was not constitutionally permissible to infer an intention to act on a desire from a simple expression of desire." The District Judge's concluding remarks concerning the character of threatening speech on the Internet bear emphasis:

Baker's words were transmitted by means of the Internet, a relatively new communications medium that is itself currently the subject of much media attention. The Internet makes it possible with unprecedented ease to achieve world-wide distribution of material, like Baker's story, posted to its public areas. When used in such a fashion, the Internet may be likened to a newspaper with unlimited distribution and no locatable printing press - and with no supervising editorial control. But Baker's e-mail messages, on which the superseding indictment is based, were not publicly published but privately sent to Gonda. While new technology such as the Internet may complicate analysis and may sometimes require new or modified laws, it does not in this instance qualitatively change the analysis under the statute or under the First Amendment. Whatever Baker's faults, and he is to be faulted, he did not violate 18 U.S.C. § 875(c).

Two of the three judges on the panel that heard the appeal agreed. In their view, a violation of 875(c) requires a demonstration, first, that a reasonable person would interpret the communication in question as serious expression of an intention to inflict bodily harm and, second, that a reasonable person would perceive the communications as being conveyed "to effect some change or achieve some goal through intimidation." Baker's speech failed, in their judgment, to rise to this level.

Judge Krupansky, the third member of the panel, dissented. In a sharply worded opinion, he denounced the majority for compelling the prosecution to meet a standard higher that Congress intended or than the First Amendment required. In his view, "the pertinent inquiry is whether a jury could find that a reasonable recipient of the communication would objectively tend to believe that the speaker was serious about his stated intention." A reasonable jury, he argued, could conclude that Baker's speech met this standard -- especially in light of the fact that the woman named in the short story had, upon learning of it, experienced a "shattering traumatic reaction that resulted in recommended psychological counseling."

For additional information on the case, see Adam S. Miller, The Jake Baker Scandal: A Perversion of Logic.

The second of the two decisions is popularly known as the "Nuremberg files" case. In 1995, the American Coalition of Life Activists (ACLA), an anti-abortion group that advocates the use of force in their efforts to curtail abortions, created a poster featuring what the ACLA described as the "Dirty Dozen," a group of doctors who performed abortions. The posters offered "a $ 5,000 [r]eward for information leading to arrest, conviction and revocation of license to practice medicine" of the doctors in question, and listed their home addresses and, in some instances, their phone numbers. Versions of the poster were distributed at anti-abortion rallies and later on television. In 1996, an expanded list of abortion providers, now dubbed the "Nuremberg files," was posted on the Internet with the assistance of an anti-abortion activist named Neil Horsley. The Internet version of the list designated doctors and clinic workers who had been attacked by anti-abortion terrorists in two ways: the names of people who had been murdered were crossed out; the names of people who had been wounded were printed in grey. (For a version of the Nuremberg Files web site, click here. WARNING: This material is very graphic in nature and may be disturbing to many readers. It is presented in order to provide a complete view of the facts of the case).

The doctors named and described on the list feared for their lives. In particular, some testified that they feared that, by publicizing their addresses and descriptions, the ACLA had increased the ease with which terrorists could locate and attack them -- and that, by publicizing the names of doctors who had already been killed, the ACLA was encouraging those attacks.

Some of the doctors sought recourse in the courts. They sued the ACLA, twelve individual anti-abortion activists and an affiliated organization, contending that their actions violated the federal Freedom of Access to Clinic Entrances Act of 1994 (FACE), 18 U.S.C. §248, and the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §1962. In an effort to avoid a First-Amendment challenge to the suit, the trial judge instructed the jury that defendants could be liable only if their statements were "true threats." The jury, concluding that the ACLA had indeed made such true threats, awarded the plaintiffs $107 million in actual and punitive damages. The trial court then enjoined the defendants from making or distributing the posters, the webpage or anything similar.

This past March, a panel of the Court of Appeals for the Ninth Circuit overturned the verdict, ruling that it violated the First Amendment. Judge Kozinski began his opinion by likening the anti-abortion movement to other "political movements in American history," such as the Patriots in the American Revolution, abolitionism, the labor movement, the anti-war movement in the 1960s, the animal-rights movement, and the environmental movement. All, he argued, have had their "violent fringes," which have lent to the language of their non-violent members "a tinge of menace." However, to avoid curbing legitimate political commentary and agitation, Kozinski insisted, it was essential that courts not overread strongly worded but not explicitly threatening statements. Specifically, he held that:

Defendants can only be held liable if they "authorized, ratified, or directly threatened" violence. If defendants threatened to commit violent acts, by working alone or with others, then their statements could properly support the verdict. But if their statements merely encouraged unrelated terrorists, then their words are protected by the First Amendment.

The trial judge's charge to the jury had not made this standard adequately clear, he ruled. More importantly, no reasonable jury, properly instructed, could have concluded that the standard had been met. Accordingly, the trial judge was instructed to dissolve the injunction and enter judgment for the defendants on all counts.

In the course of his opinion, Kozinski offered the following reflections on the fact that the defendants' speech had occurred in public discourse -- including the Internet:

In considering whether context could import a violent meaning to ACLA's non-violent statements, we deem it highly significant that all the statements were made in the context of public discourse, not in direct personal communications. Although the First Amendment does not protect all forms of public speech, such as statements inciting violence or an imminent panic, the public nature of the speech bears heavily upon whether it could be interpreted as a threat. As we held in McCalden v. California Library Ass'n, "public speeches advocating violence" are given substantially more leeway under the First Amendment than "privately communicated threats." There are two reasons for this distinction: First, what may be hyperbole in a public speech may be understood (and intended) as a threat if communicated directly to the person threatened, whether face-to-face, by telephone or by letter. In targeting the recipient personally, the speaker leaves no doubt that he is sending the recipient a message of some sort. In contrast, typical political statements at rallies or through the media are far more diffuse in their focus because they are generally intended, at least in part, to shore up political support for the speaker's position. Second, and more importantly, speech made through the normal channels of group communication, and concerning matters of public policy, is given the maximum level of protection by the Free Speech Clause because it lies at the core of the First Amendment.

 

Over a year later, however, in May 2002, the full court of the Court of Appeals for the Ninth Circuit reversed vacated the panel decision, and reinstated the trial court's determination. The Court of Appeals was very closely divided, with six judges favoring a finding that the Nuremberg Files site did not merit protection, and five judges holding that it did. The majority defined threat

3. The Problem of Hate Speech

The net has an equalizing effect on speech for all parties; those aspects of new media that are potentially democratizing at the same time facilitate the ability to spread messages of racism and hate. Unsurprisingly, the desire to regulate hate speech is another key theme in the ongoing conflict between freedom and control. The problem of hate speech has raised significant international dimensions because of the divergence between the United States and most other countries in their treatment of hate speech generally, and Nazism-related communications in particular. Therefore, before addressing the difficulties of regulating hate speech on the Internet, it is important to understand the divergent approaches to messages of intolerance undertaken by the US and the global community. 

 

In the United States, government efforts to regulate "hate speech" – namely, speech attacking racial minorities, women, homosexuals, or other traditionally disfavored groups – are likely to run afoul of the First Amendment for being content-based. While the Supreme Court has held statutes constitutional that augment penalties for crimes inspired by hate, it has held unconstitutional laws penalizing the use of hate speech against historically persecuted groups. As in the context of threats, an important qualification is that if such speech calls for immediate violent action and may cause an “imminent threat of harm,” as opposed to advocacy or encouragement, then it is unlawful. That said, if government tries narrowly to regulate "fighting words" against certain groups, the Supreme Court has held that such a law runs afoul of the First Amendment under a content-based strict scrutiny standard. This is the holding of the seminal hate speech case, R.A.V. v. City of St. Paul.

 

In R.A.V., the Supreme Court overturned a St. Paul, Minnesota statute that made it a crime to "place on public or private property a symbol, characterization or graffiti [including a burning cross or Nazi swastika] which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender...." The defendant was prosecuted for having burned a homemade cross inside the fenced yard of a black family, in the middle of the night.  The Court held that the defendant could not be convicted, because the ordinance on its face violates the First Amendment. Even though the ordinance has been construed by the state court to reach only "fighting words," the Court reasoned that the city could not choose which fighting words to prohibit based on their content. Thus, the city could ban all fighting words, but not just those motivated by, say, racial or religious bias.

 

The American approach to hate speech is substantially more permissive than in most other countries.  The following countries have passed laws that specifically penalize hate propaganda: Austria, Belgium, Brazil, Canada, England, France, Germany, India, Israel, and Switzerland. The German approach is emblematic. While the German constitution protects free speech, its language, unlike the US constitution, is not absolute. It subjects speech to “limitations embodied in the provisions of general legislation, statutory provisions for the protection of youth, and the citizen’s right to personal respect.” Thus, under German law, it is a criminal offense to publicly distribute or supply any “writings that incite race hatred or describe cruel or otherwise inhuman acts of violence against humans.”

 

The problem of hate speech on the global medium like the Internet is, thus, exacerbated by the conflicting approach taken across different legal regimes.  The strength of the First Amendment and permissiveness of the U.S. approach to hate speech has led to criticisms and concern that the U.S. has become a haven for hate speech around the globe. The controversial case of Yahoo v. LICRA! is instructive in this regard.

 

In LICRA and UEJF v. Yahoo! Inc, Yahoo! was sued in France for violating a French law that prohibits the exhibition of Nazi memorabilia. The French court ordered Yahoo! to limit the display of Nazi memorabilia and images on Yahoo!-hosted auction sites in the U.S. (Click here for a translation of the Superior Court of Paris’ opinion in the case and here for the opinion in French.) Such displays, while illegal in France, are protected by the First Amendment in the United States. The French court reasoned that because the offensive materials were accessible in France – and hence caused harm to French citizens – the court had the power to penalize Yahoo! in the U.S. for non-compliance with its domestic hate speech statutes.

 

Because enforcement of the French order would require action against Yahoo! and its assets in the United States, Yahoo! in turn sought relief from the order in the form a declaratory judgment making the order unenforceable stateside. Before a California district court, Yahoo! sought a declaration that the French court has no jurisdiction over Yahoo's U.S.-based operations, and that the French court's order violates rights guaranteed by the U.S. Constitution. Yahoo! argued that only a U.S. court has jurisdiction to determine if the French order is enforceable in the United States. The California court agreed, and on First Amendment grounds invalided enforcement of the French order in the U.S. See the California District Court Order Granting Yahoo!’s Motion for Summary Judgment. The court concluded that:

           

The French order’s content and viewpoint-based regulation, while entitled to great deference as an articulation of French law, clearly would be inconsistent with the First Amendment if mandated by a court in the United States. What makes this case uniquely challenging is that the Internet in effect allows one to speak in more than one place at a time. Although France has the sovereign right to regulate what speech is permissible in France, this Court may not enforce a foreign order that violates the protections of the United States Constitution by chilling protected speech that occurs simultaneously within our borders.

 

The Yahoo! case demonstrates the challenges to the First Amendment and the  normative expressive regimes of other nations that are likely to recur the international context. While subject to criticism abroad, free speech advocates and cyber-libertarians applauded the California court's judgment as an important precedent for online speech worldwide and the openness of the Internet.

 

The decision in Yahoo! is important for another reason: the French court’s focus on Yahoo’s ability to discern where its content was received. Based on the testimony of expert witnesses, the French court concluded that Yahoo! had the technological capacity to know with 90% accuracy where it was distributing its online content. In the Third Circuit decision in COPA discussed above, we saw the court imagining the next stage of online regulation: a net that is zoned so as to permit prohibitions of content based on community norms. In effect, the French court in Yahoo! sought to actualize that vision. Whereas geographic-location technologies may not be readily available and cost-efficient at present, an increasingly important question for net regulation in the future will be the ability to control not merely types of content but the flow of information. For a general discussion on the development of geographic location technologies and the consequences for online regulation take a look at this article on “The Internet’s New Borders.”

 

4. Intellectual Property

 

The First Amendment forbids Congress to make any law "abridging the freedom of speech." Nonetheless, the following stories, and many like them, involve the lawful abridgment of free speech under the banner of intellectual property.

o       Dennis Erlich, a member of the Church of Scientology for fourteen years, became a vocal critic of Scientology. As part of his campaign, Erlich had posted to an internet newsgroup documents containing the scientologists’ religious teachings, interspersed with criticism. The Church of Scientology sued for copyright infringement. The court issued a temporary restraining order and a seizure order. This is what followed, as described by the court itself:

On February 13, 1995, in execution of the writ of seizure, local police officers entered Erlich's home to conduct the seizure. The officers were accompanied by several [Scientology] representatives, who aided in the search and seizure of documents related to Erlich's alleged copyright infringement and misappropriation of trade secrets. Erlich alleges that [Scientology] officials in fact directed the seizure, which took approximately seven hours. Erlich alleges that plaintiffs seized books, working papers, and personal papers. After locating Erlich's computers, plaintiffs allegedly seized computer disks and copied portions of Erlich's hard disk drive onto floppy disks and then erased the originals from the hard drive.

o       Free Republic includes a forum where right-wing conservatives share news clippings and exchange opinions online. Users who read articles they think deserve comment cut and paste them onto the forum. They then post a comment, and other users participate in a threaded discussion of the article. The Washington Post and the L.A. Times decided that public discourse may be a good thing, but not when it is evoked using their stories. So they brought a copyright action to prevent the users of Free Republic from posting the papers’ stories to their political forum. In other words, two large newspapers successfully asked the government to limit the operation of a discussion group where people share clippings of their news stories and engage in political debate over them.

o       The San Francisco Arts and Athletics Association wanted to run an athletic event to celebrate gay athletes, and wanted to call the event "Gay Olympics," but were prohibited from doing so. Congress gave the US Olympic committee the exclusive right to control the usage of the word "Olympic," saying that the legislature could reasonably have believed that the positive connotations of the word come from the USOC's efforts. When the USOC stopped the holders of the Gay Olympic Games from using the term, the Supreme Court held that this did not violate the First Amendment.

                                 

How can these prohibitions on specific expressions, which would be both less effective and meaningful absent the words or phrases in question, be squared with the Constitution's command? Does this imply that the copyright statute as a whole – or, less radically, some specific applications of it – should be deemed unconstitutional?  

Courts have generally found the problem less troubling than one might think. One, fairly simple justification has been that Article I, Section 8, Clause 8 of the Constitution explicitly authorizes Congress "To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries," and there is no indication that the drafters or ratifiers of the First Amendment intended to nullify this express grant of lawmaking power. This justification does not carry one too far, however, because the fact that Congress is empowered to create rights in intellectual property does not imply that the First Amendment does not then impose real limitations on how Congress uses this power. In that regard, second, and more importantly, the U.S. Supreme Court has held that various doctrines within copyright law function to ensure that it does not unduly interfere with the ability of persons to express themselves. Specifically, the principle that only the particular way in which an idea is "expressed" is copyrightable, not the idea itself, ensures that the citizenry will be able to discuss concepts, arguments, facts, etc. without restraint. Even more importantly, the fair use doctrine (discussed in the first module) provides a generous safe harbor to people making reasonable uses of copyrighted material for educational, critical, or scientific purposes. These considerations, in combination, have led many of the lower courts to turn aside virtually every challenge to the enforcement of copyrights on First Amendment grounds. Recently, the Court of Appeals for the District of Columbia took this logic a step further, holding that "users have 'no cognizable First Amendment interest in exploiting the copyrighted works of others'," and that therefore "Copyrights, are categorically immune from challenges under the First Amendment." Eldred v. Reno.

 

These constitutional interpretations that free Congress from judicial review when it enacts copyright-type statutes comes at a time of tremendous expansion and amplification of intellectual property rights. Many now believe that the essential balance between the ability of persons freely to communicate and the protection of creators' expression has been upset. In large part a response to the ease of reproduction and distribution using digital technologies, the strengthening of IP rights has taken two forms. First, a gradual broadening of the scope of intellectual property protection over time, e.g., the lengthening of the copyright term from life plus 50 to 70 years (read a full description by here). And second, the Digital Millennium Copyright Act’s expansion of intellectual property protections described in module 2.

 

Following the very extreme version of this expansive pro-copyright view taken by the Court of Appeals from the District of Columbia in Eldred, the Supreme Court has now granted certiorari to review that decision. Recall, in that case the Court of Appeals upheld an extension of the length of copyright protection by 20 years, not only prospectively, but retroactively as well. The arguments supporting such an extension as a matter of economic incentives are flimsy. See the Economists' Brief filed in the Surpeme Court case. Given contemporary First Amendment law, as well as an expansion of the Court's willingness to hold Congress strictly to its enumerated powers under the Constitution, upholding such a law requires courts more or less to treat copyright legislation as unreviewable, which is, in fact, what the Court of Appeals did. The Supreme Court stage of the case, Eldred v. Aschcroft, promises to become the most important decision that the Court has ever issued on the constitution bounds of congressional power to enact copyright legislation. If it upholds the lower court, it will effectively lock-in the position that congressional statutes are unreviewable if their subject matter is copyright. If it overturns the lower court, it will require many of the courts of appeals to adjust their increasingly dismissive treatment of First Amendment challenges to copyright-style legislation. The materials submitted to the Supreme Court in this case can be found here. To get the First Amendment implications, you should read the main brief filed by the petitioner, and the brief of five constitutional law professors.

 

 

Eldred will be the most immediate and most important decision of principle in this area. Of great practical importance, however, is also a slew of cases involving the DMCA’s provisions. Most extreme is the case of Dmitry Sklyraov. Sklyarov is a Russian programmer who faced the prospect of an American jail because he wrote software that lets people read books that they are not allowed to read. Sklyraov's program allows readers of ebooks encoded in the Adobe eBook format to read the book in other readers as well, including those that ignore limitations--like a prohibition on printing the book, quoting from it, or lending it--that the eBook reader is designed to enforce. For this, Skylarov was prosecuted criminally. Since the initial prosecution, Sklyarov has been permitted to return home, and his employer, Elcomsoft, has been prosecuted instead. Despite the particular concern that the Supreme Court has in the past shown for criminal, rather than civil, enforcement of laws that burden speech, the District Court handily rejected Elcomsoft's challenge to the constitutionality of the criminal provisions of the DMCA. Aa the court put it

Another evocative case that never reached fruition is the case involving Edward Felten. Felten is a computer scientist at Princeton. He was preparing to publish a paper on the weaknesses of the music industry's proposed encryption standard, SDMI. As he prepared for publication, he received a threatening letter from the Recording Industry Association of America (RIAA), telling him that publication of the paper constituted a violation of the DMCA. In response, he asked a federal district court to declare that publication of his findings was not a violation of the DMCA. The RIAA suddenly realized that trying to silence academic publication of a criticism of the weakness of its approach to encryption was not the best litigation stance, and has moved to dismiss the case.  

Of the DMCA-related cases, the cases that seem most likely to bear fruit in the immediate future are those involving the DVD industry, and the attempts by the movie industry to prevent the distribution of a decryption program, DeCSS, that would allow its users to circumvent the copy protection system that protects DVDs. The story behind the cases is quite simple. DVDs are protected by a system called CSS. In 1999, a young Norwegian named Jon Johansen wrote and published a program, DeCSS, that can circumvent this protection system. The program was circulated on web sites around the world, and the movie industry brought three suits, one in California, one in New York, and one in Connecticut, against web sites that posted the software. The theory in the California case was a state trade secret theory. In the New York case the theory was that by posting or linking to DeCSS the websites were "trafficking" in circumvention technology, and thereby violating the DMCA.  

There are three distinct First Amendment issues involved in these cases.

(1) Is software "speech" protected by the First Amendment, and if so, what consequences follow? All the courts agree that software is speech, and that the prohibition on distributing software is a restriction on speech. However, they differ in the application of this insight. The California Court, at the present stage of the case, has relied on this finding to hold the issuance of a preliminary injunction under California's Uniform Trade Secrets Act a violation of the First Amendment. While accepting that software was speech, the district court in the New York Case held that it was also functional, and went on to reason that to the extent software is functional, it is subject to regulation notwithstanding the First Amendment. A fascinating study of the boundaries of the speech/function distinction that was used in the district court in the New York case can be found here. Reasons to be skeptical of the software-is-speech argument can be read in Robert Post's article here.

(2) Irrespective of whether software is speech, does the DMCA's prohibition on circumvention threaten fair use and the other First Amendment protections embodied in the Copyright Act to such a degree that the Act is unconstitutional? The main question here is not focused on the speech of computer programmers, as was the previous question, but on the ability of any user to use cultural materials in ways that are expressive, protected by the First Amendment, but nonetheless prohibited by the new shape of copyright law. This amicus brief offers an explanation of how the permissive doctrine of fair use is effectively undermined by a legal regime that prohibits the ability of individuals to access and work with protected materials in ways that are lawful.

(3) A separate component of the injunction prohibited not only posting of DeCSS, but linking by the defendant to other sites that had DeCSS posted on them. The district court held that linking--mechanically telling people where they could find information--could constitutionally be prohibited, if the person linking did so with knowledge of what they were linking to and with the intent to distribute the prohibited code. This holding too was challenged in the Court of Appeals. The argument about linking can be read here.

The Court of Appeals affirmed the District Court's holding that the DMCA did not violate the First Amendment on any of these issues. In Universal City Studios, Inc. v. Corely the court's rejected all three arguments.

(1) While acknowledging that software is "speech" protected by the First Amendment, the court adopted the district court's observation that computer code both communicated human information and achieved a practical result in the world. "Unlike a blueprint or a recipe, which cannot yield any functional result without human comprehension of its content, human decision-making, and human action, computer code can instantly cause a computer to accomplish tasks and instantly render the results of those tasks available throughout the world via the Internet. The only human action required to achieve these results can be as limited and instantaneous as a single click of a mouse. These realities of what code is and what its normal functions are require a First Amendment analysis that treats code as combining nonspeech and speech elements, i.e., functional and expressive elements." DeCSS could enable people to perform illegal copying, and its suppression, the court held, was justifiable under the First Amendment even under somewhat hieghtened, but not strict scrutiny..

(2) As to the fair use argument, the court held that "We know of no authority for the proposition that fair use, as protected by the Copyright Act, much less the Constitution, guarantees copying by the optimum method or in the identical format of the original."

(3) The court treated links, like computer code, as speech combined with functionality. It held that "the Appellants ignore the reality of the functional capacity of decryption computer code and hyperlinks to facilitate instantaneous unauthorized access to copyrighted materials by anyone anywhere in the world. Under the circumstances amply shown by the record, the injunction's linking prohibition validly regulates the Appellants' opportunity instantly to enable anyone anywhere to gain unauthorized access to copyrighted movies on DVDs."

 

If you are interested in the First Amendment and copyright or intellectual property more generally, these issues are explored more fully in a number of articles.

·        Boyle, The First Amendment And Cyberspace: The Clinton Years

·        Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain

·        Netanel, Locating Copyright Within the First Amendment Skein

Back to Top | Intro | Background | Current Controversies | Discussion Topics | Additional Resources

 

Discussion Topics

1. Are you persuaded by the judicial opinions declaring unconstitutional the CDA and questioning the constitutionality of COPA? Should CHIPA suffer the same fate? What should the Corut of Appeals do about COPA when it reconsiders on remand? Are there any ways in which government might regulate the Internet so as to shield children from pornography?

2. Some authors have suggested that the best way to respond to pornography on the Internet is through "zoning." For example, Christopher Furlow suggests the use of “restricted top-level domains” or “rTLDs” which would function similarly to area codes to identify particular areas of the Internet and make it easier for parents to control what type of material their children are exposed to online. See Erogenous Zoning on The Cyber-Frontier, 5 Va. J.L. & Tech. 7, 4 (Spring 2000). Do you find this proposal attractive? practicable? effective? In line with this thinking, lawmakers in the US have recently begun deliberating whether to create a kids subdivision within the .us country-code top-level domain (.kids.us). A U.S. Congressional subcommittee hearing was held on November 1, 2001 regarding a Dot Kids Domain Name Act. The original version of the bill would force ICANN – the domain-name decision-making body - to approve a "kid-friendly domain" first before any other domains can be introduced.

3. Elizabeth Marsh raises the following question: Suppose that the Ku Klux Klan sent unsolicited email messages to large numbers of African-Americans and Jews. Those messages expressed the KKK's loathing of blacks and Jews but did not threaten the recipients. Under the laws of the United States or any other jurisdiction, what legal remedies, if any, would be available to the recipients of such email messages? Should the First Amendment be construed to shield "hate spam" of this sort? More broadly, should "hate spam" be tolerated or suppressed? For Marsh's views on the matter, see "Purveyors of Hate on the Internet: Are We Ready for Hate Spam?"17 Ga. St. U. L. Rev. 379 (Winter 2000).

4. Were the Jake Baker and Nuremberg Files cases decided correctly? How would you draw the line between "threats" subject to criminal punishment and "speech" protected by the First Amendment?

5. The Yahoo! case received a great deal of attention and notoriety in part because allegiance to the First Amendment is as central to the American perception of free speech as the moral imperative and commitment to “personal dignity” that underlies the French hate speech statute. Can you think of a way to reconcile these seemingly incompatible perceptions of the limits on public discourse? Is this just another problem of Internet jurisdiction or does it have more to do with the ability of states to define the limits of their own public discourse?

6. Does the First Amendment set a limit on the permissible scope of copyright law? If so, how would you define that limit? What should the Supreme Court do in the Eldred case?

7. Lyrissa Lidsky, points out that the ways in which the Supreme Court has deployed the First Amendment to limit the application of the tort of defamation are founded on the assumption that most defamation suits will be brought against relatively powerful institutions (e.g., newspapers, television stations). The Internet, by enabling relatively poor and powerless persons to broadcast to the world their opinions of powerful institutions (e.g., their employers, companies by which they feel wronged) increases the likelihood that, in the future, defamation suits will be brought most often by formidable plaintiffs against weak individual defendants. If we believe that "[t]he Internet is . . . a powerful tool for equalizing imbalances of power by giving voice to the disenfranchised and by allowing more democratic participation in public discourse," we should be worried by this development. Lidsky suggests that it may be necessary, in this altered climate, to reconsider the shape of the constitutional limitations on defamation. Do you agree? If so, how would you reformulate the relevant limitations?

8. A core speech-enhancing aspect of online speech is its anonymous character. It is not only that there are greater and cheaper avenues for speech and expression online, but that expression is promoted by the ability to speak without revealing one’s identity. Concerns about the disclosure of personal information have focused on access to transactional information, communications and purchases.  Perhaps less acknowledged is the correlation between free speech and anonymity. In light of the recently heightened concerns over terrorism and given the regulatory attempts described above, how should we consider any attempts to regulate or ban online anonymity? What might be the cost of attempting to identify users online? For a defense of a speaker’s right to remain unknown see Wallace: Nameless in Cyberspace: Anonymity on the Internet.

 

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Additional Resources

Memorandum Opinion, Mainstream Loudoun v. Loudoun County Library, U.S. District Court, Eastern District of Virginia, Case No. 97-2049-A. (November 23, 1998)

Mainstream Loudoun v. Loudoun County Library, (Tech Law Journal Summary)

Lawrence Lessig, Tyranny of the Infrastructure, Wired 5.07 (July 1997)

Board of Education v. Pico

ACLU Report, "Fahrenheit 451.2: Is Cyberspace Burning?"

Reno v. ACLU

ACLU offers various materials relating to the Reno v. ACLU case.

Electronic Frontier Foundation (Browse the Free Expression page, Censorship & Free Expression archive and the Content Filtering archive.)

The Electronic Privacy Information Center (EPIC) offers links to various aspects of CDA litigation and discussion.

Platform for Internet Content Selection (PICS) (Skim the "PICS and Intellectual Freedom FAQ". Browse "What Governments, Media and Individuals are Saying about PICS (pro and con)".)

Jason Schlosberg, Judgment on "Nuremberg": An Analysis of Free Speech and Anti-Abortion Threats Made on the Internet, 7 B.U. J. SCI. & TECH. L. (Winter 2001)

CyberAngels.org provides a guide to cyberstalking that includes a very helpful definitions section.

Cyberstalking: A New Challenge for Law Enforcement and Industry – A Report from the Attorney General to the Vice President (August 1999) provides very helpful definitions and explanations related to cyberstalking, including 1^st Amendment implications; also provides links to additional resources.

National Center for Victims of Crime

The Anti-Defamation League web site offers a wealth of resources for dealing with hate online, including guides for parents and filtering software. The filtering software, called Hate Filter, is designed to give parents the ability to make decisions regarding what their children are exposed to online. The ADL believes that “Censorship is not the answer to hate on the Internet. ADL supports the free speech guarantees embodied in the First Amendment of the United States Constitution, believing that the best way to combat hateful speech is with more speech.”

Laura Lorek, "Sue the bastards!." ZDNet 3/12/2001.

"At Risk Online: Your Good Name." ZDNet April 2001.

Jennifer K. Swartz, "Beyond the Schoolhouse Gates: Do Students Shed Their Constitutional Rights When Communicating to a Cyber-Audience," 48 Drake L. Rev. 587 (2000).

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