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Ann.2000
ATLA‑CLE 1605
2 Ann.2000 ATLA CLE 1605 (2000)
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Association
of Trial Lawyers of America
July, 2000
ATLA
Annual Convention Reference Materials
Volume
2
Civil
Rights Section
CYBERSPEECH AND THE FIRST AMENDMENT: CAN
COMMUNITY STANDARDS BE DETERMINED ON THE INTERNET? [FN1]
Liza Kessler and Gregory G. Rapawy
[FNa]
Table
of Contents, List of Authors
The
global, decentralized, and user‑controlled nature of the Internet makes
it a unique communications medium, ideally situated for the development of
interest‑based communities.
Traditional communities have been defined by geography, race, class,
language, education, and a host of other factors, with both positive and
negative consequences. In order to be
part of a geographic community, an individual generally has to live there‑‑for
example, in order to vote in a community, a person must live in a particular
location for a legally specified period of time. Communities based on race, class or language are not defined so
legalistically, but may be even more difficult to enter or to leave. In the physical world, even communities
based on interest require geographic access to other people who share that
interest‑‑a serious challenge for rural and small town residents,
and for anyone with an interest outside the mainstream of his or her physical
community.
The
Internet is, by contrast, a global, open, and self‑selecting collection
of interest‑based communities.
Ideas published and discussed on the Internet are as diverse as human
thought. One person may participate in
a series of Internet communities with no connections to each other, or a range
of overlapping Internet communities.
Any person, anywhere in the world, who has access to a computer may
visit any publicly posted web page by just clicking a mouse or typing a few
characters. Other forms of Internet
communication, such as news groups, e‑mail lists, and chat rooms and
channels, are also generally open to interested parties.
Traditional
legal analysis of "contemporary community standards" becomes almost
meaningless on the Internet. Who is an
"average person" on the Internet?
Can the community standards of one geographic area be found to control
what material is available in another city, state, or nation? Even if United States law is limited to web
sites on computers in the United States, the communities of the Internet are
too diverse for one community standard to be applied.
The
problem of determining the proper "community" on the Internet, for
purposes of First Amendment analysis, can be avoided because of the user‑controlled
nature of the technology itself. There
are a multitude of less restrictive means‑‑user‑controlled
technological options described in detail below‑‑that empower
Internet users to enforce their own "community" standards regarding
what material is indecent, obscene, harmful to minors, or simply, "not the
kind of thing we approve of in this house."
This
paper will briefly review the traditional First Amendment analysis applied to
obscenity in the physical world. Next,
it will discuss the current state of United States law governing content
restrictions on the Internet. Finally, it will explain the range of less
restrictive alternatives currently available that empower individuals to
enforce their own values and standards concerning material available on the
Internet.
I. Community Standards: The First Amendment in the Real World
_______________________________________________________________________________
The
traditional analysis courts have applied to determine whether material is
obscene, and therefore not protected by the First Amendment, was summarized by
Chief Justice Burger speaking for the majority in Miller v. California:
(a) whether "the average person,
applying contemporary community standards" would find that the work, taken
as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230,
quoting Roth v. United States, supra, at 489; (b) whether the work depicts or
describes, in a patently offensive way, sexual conduct specifically defined by
the applicable state law; and (c) whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific value.
While
federal courts in the United States have been reluctant to define "community" in terms of political
or geographic boundaries, they have refused to find that there is a national
community whose standards should be applied to real‑world obscenity cases
(Miller, Hamling v. United States). On
the other hand, federal courts have found that "there is no constitutional
impediment to the government's power to prosecute pornography dealers in any
district into which the material is sent." United States v. Bagnell (11th Cir. 1982), United States v.
Peraino (6th Cir. 1981). The key
difficulty in applying the Miller standard to the Internet involves defining
"contemporary community standards." Content on the Internet can be
viewed from nearly anywhere in the world, and material can be published on the
Internet from nearly anywhere in the world.
Although
no federal courts have ruled on the question of whether material residing on an
Internet‑connected computer is "sent" to a viewer who gains
access to it in another jurisdiction, the Sixth Circuit, in United States v.
Thomas, upheld an obscenity conviction involving access in Tennessee to
material in California that was available through a dial‑in
computer. Robert and Carleen Thomas
operated the "Amateur Action Computer Bulletin Board System" (AABBS),
a dial‑in computer service offering sexually explicit material, out of
their home in Milpitas, California.
AABBS required that people become members, which included providing a
real‑world address, before they could view AABBS content. The facts of the Thomas case are therefore
distinguishable from access to an Internet web site because the court found
that "AABBS materials were distributed to an approved AABBS member known
to reside in the Western District of Tennessee."
By
contrast, most Internet speakers do not know where visitors to a web site
reside. Although some domain names are
geographically identifiable, such as the .<state>.us domains and many of
the .edu domains, those in the .com, . org, or .net hierarchy are not so easily
linked to a geographic area. This is
particularly true, for example, of the nation's largest consumer Internet
access provider, America Online. The 20
million users of aol.com are as geographically anonymous to the places they
visit as a business with an 800 area code telephone number is to an average
caller.
II. The First Amendment and Internet Content
_______________________________________________________________________________
The
first and to date most important constitutional conflict over speech on the
Internet occurred when Congress passed the Communications Decency Act of 1996.
Appended to a much larger telecommunications bill and passed without a single
hearing, the CDA leveled severe penalties on Internet speakers for the poorly
defined offense of "indecency."
When the Supreme Court struck the law down two years later in Reno v.
ACLU, Justice Stevens wrote for the majority that "[t]he breadth of the
CDA's coverage is wholly unprecedented."
The majority noted that other less restrictive means, such as filtering
software, might have accomplished the government's proclaimed end of protecting
children just as effectively.
Justice
O'Connor, joined by the Chief Justice, wrote an opinion focusing on user‑controlled
technology. While agreeing that the CDA
went too far, Justice O'Connor discussed ways in which forthcoming
technologies, including several client‑side Internet filtering tools,
could accomplish the government's interest‑‑not to expunge adult
speech from the Internet, but to create some areas safe for unrestrained adult
speech and others safe for children.
Justice O'Connor did not, however, draw any distinction between means
through which individuals can make their own choices and parents can protect
their own children (such as client‑side filters, greenspaces, and
filtered service providers) and means that would require government power to be
effective (such as requiring servers to identify their users or to tag their
content).
Congress
has tried again since Reno v. ACLU to create penalties for protected,
nonobscene speech sent over the Internet.
The Child Online Protection Act (COPA) addresses some of the problems
the Supreme Court found with the CDA, but remains an attempt to punish, in the
name of protecting children, nonobscene speech sent over the net by adults for
adults. Soon after COPA passed, and
before it went into effect, a coalition of plaintiffs (led once again by the
ACLU) filed suit, challenging the Act as unconstitutional on its face. Judge Lowell Reed of the Eastern District of
Pennsylvania issued a preliminary injunction on February 1, 1999, ordering the
Department of Justice not to enforce the Act until after a trial could be
held. The Department of Justice
appealed the injunction; the Court of Appeals for the Third Circuit heard oral
argument in the case on November 4, 1999.
As of this writing, the court had not yet issued a decision on the
appeal.
Because
the COPA shows somewhat more attention to the First Amendment than did the CDA,
Judge Reed engaged in a more nuanced analysis of its constitutionality. Part of his analysis relied on the availability
of filtering and blocking technologies.
Although Judge Reed acknowledged that Congress has a compelling interest
in protecting children from materials "harmful to minors," he
concluded that filtering and blocking "may be at least as successful as
COPA . . . without imposing [a] burden on constitutionally protected
speech." Judge Reed's analysis is
powerful judicial recognition of the principle that voluntary filtering
technology better serves the interests of both the individual and the community
than direct government regulation of speech.
States
have also attempted, unsuccessfully, to make content based restrictions on
Internet speech. New Mexico, Georgia,
and New York have all had statutes covering Internet content struck down as
unconstitutional; a Virginia Internet "harmful to minors" statute is
still in the process of being challenged at the time of this writing.
As
filtering and other user empowerment technologies become more central to the
debate over speech on the Internet, however, they also become liable to
government abuse. Congress, for
example, is now considering various pieces of legislation that would mandate
the use of filtering technology in libraries and schools.
Government‑imposed
mandatory filtering has also been attempted at the local level, and, at least
in one case, rebuffed. In 1997, the
public libraries of Loudoun County, Virginia, adopted a policy of installing
filtering software on computers that provided Internet access to patrons. The policy under which the software was
installed declared the libraries' intent to block hard‑core and soft‑core
pornography. Shortly thereafter, the
policy was challenged under the First Amendment by a group of library patrons
joined by a number of web site operators who claimed that the library had
unconstitutionally infringed their rights to free speech by blocking access to
their web sites, even though they did not provide pornographic materials.
Judge
Leonie M. Brinkema of the Eastern District of Virginia struck down the library policy
on April 8, 1998, in Mainstream Loudoun v. Board of Trustees of Loudoun County
Library. Like Judge Reed, Judge
Brinkema did not argue with the library's assertion that its interests in
installing filters ("minimizing access to illegal pornography and
avoidance of creation of a sexually hostile environment") were
compelling. The judge found, however,
that filters were not necessary to achieve these goals, and that less
restrictive means were available to pursue them. The Mainstream Loudoun case is particularly important because the
nature of the challenge‑‑by plaintiffs whose speech was restricted
by the filters even though it was fully protected under the First Amendment‑‑highlights
the problems of government‑imposed, mandatory filtering. The Loudoun
County Library could not filter without restricting significant amounts of
protected speech; even, Judge Brinkema held, the creation of a process by which
patrons could remove specific sites from the filters' lists imposed too great a
burden on speech to survive First Amendment challenge.
III. Constitutionally Avoiding Undesirable
Internet Content
_______________________________________________________________________________
With
all of the congressional attention paid to "the coarser side" of the
Internet, people may get the impression that the Web is full of sexually
explicit material, racist or anti‑Semitic speech, or instructions for
building bombs. This is simply not
true. Web sites are as diverse as human
thought. In fact, according to September 1999 figures from the Online Computer
Library Center and the World Wide Web Consortium, only approximately two
percent of publicly accessible web sites (42,000 of the 2.2 million) contain
sexually explicit material. [FN2]
Nevertheless,
there undeniably is content on the Internet that many would find unsuitable for
children. But families do not need to
ask Congress, or their state or local governments, to restrict
"inappropriate" content on the Internet. There are more than 110 different user empowerment software tools
available for people who want to limit their, or their family's, exposure to
Internet material (April 10, 2000). The
values reflected in these tools are based on the values of communities that the
user, not the government, chooses.
When
Internet filtering technology first hit the market, it was crude and
clumsy. Filters blocked access to web
sites about breast cancer or chicken breast recipes. Filtering technology is by no means perfect today, but much of it
has improved. Even more importantly,
the range of user empowerment technology choices has increased
dramatically. Filtering tools now
include both highly restrictive filters that may still overblock and deny
access to appropriate material, and less restrictive filters that may allow
some access to material the user wants to avoid. New kinds of user empowerment tools have also developed,
including tools that limit the time of day a child may log on, and how much
time he or she may spend on the Internet‑‑an option that may be
especially useful for parents who work‑‑as well as tools that allow
parents to review their children's use of the Internet, after the fact, tools
that guide children's searches for online information to prescreened sites so
they avoid inadvertent exposure to sexually explicit material, and, for the
more interactive aspects of the Internet such as chat, e‑mail, and
"ICQ" or "Instant Messages," tools that limit or restrict
access to preapproved chat locations or e‑mail correspondents.
Compared
to other media, the level of control available for Internet users to decide
what material or information they want to find or to avoid is
unprecedented. In the real world, some
people avoid movies and television programs with graphic violence while others
avoid gratuitous sexual activity, or prohibit their children from viewing such
material. While movie and television
rating systems provide some information to help families make these kinds of
decisions, Internet users can make far more granular determinations that
reflect their values in ways that a one‑size‑fits‑all rating
system could never do. Filtering
software is available that allows parents to determine whether to block
sexually explicit material, graphic violence, gambling, hate groups,
advertising, illegal activity, drug oralcohol use, and many other types of
material, alone or in combination. Some
products can be adjusted to allow different levels of filtering by category or
for multiple users of the same computer.
Most
Internet filters use one or more of the following strategies:
1. Web site address (URL)
Some filters block
access to a specific list of web sites that have been classified as
"inappropriate" by the company.
Some companies decide what is filtered, some let parents pick among
preset categories (for example, graphic violence OK, sexually explicit material
not OK), some provide a "starter list" where parents can add or
remove sites. Also, some tools allow a
parent to override the filter if they think a site is appropriate for their
child to view, but other products do not.
2. Human review of web
pages
Some companies
employ people to look at web pages and classify them into various blocked or
blockable categories. Companies using
this strategy generally review web pages and classifications periodically to
keep their lists current.
3. Key words
Other products
block access to sites containing potentially inappropriate words like
"sex" or "breast."
Some of these filters block only the "bad" words, not text
surrounding them. Some filters apply to
web sites, others to e‑mail, chat, "instant" message systems,
news groups, or a combination of them all.
Most filters allow parents to turn off or edit the key word list. Some of these products analyze the language
around key words to avoid blocking "breast cancer" or "chicken
breast recipe." Still other products, often called "rules‑based,"
use complex proprietary algorithms to filter web sites based on their
similarity‑‑as determined by the computer software‑‑to
previously identified "pornographic" web sites. This type of filtering is the least
adaptable by the user. As of yet, there
is no rules‑based software that allows the user to define the
"rules" for filtering.
For these tools to be effective options, users should have access
to information about the tool to make an informed decision about whether it
fits their values and circumstances.
This is a particularly critical issue with filtering tools. Users should be informed which strategies a
program uses. They also need to know what criteria are used to determine
classification of a web page, what key words are blocked, and whether or not a
user with a password can edit the blocked list or override the filter.
Different users will make different choices based on these issues,
as well as the cost of the product, the user's values, and on other individual
criteria such as the age(s) and technological sophistication of children who
may be using the computer. Most
importantly, users can choose products that fit their own values. For example, a conservative Christian user
may want to filter material including access to gay and lesbian web sites. A gay or lesbian family may want to filter
sexually explicit web sites, but would not want software that blocked all gay‑oriented
sites. Users who want a highly
restrictive tool may opt for one of the Christian Internet Service Providers,
such as Integrity Online, that filter Internet access before it comes to the
end user ("server‑side" filtering) and do not generally allow
password override or editing of the blocked site list. On the other hand, users who want to keep
their children from inadvertent exposure to sexual material, but who want to
retain the ability to override the value decisions of the software provider may
opt for a tool like NetNanny or CyberSnoop, which require more hands‑on
decision‑making by an adult user, but can be set up much less
restrictively.
Filtering software and other user empowerment tools are useful only
if Internet users are aware of them and can find the ones that address their
concerns. To make these tools more
readily accessible to parents, many of the biggest companies in the Internet
and communications industry came together during July 1999 and launched
"GetNetWise: You're One Click
Away." GetNetWise is a Web‑based
resource providing Internet users with comprehensive consumer information about
user empowerment tools, plus a guide to online safety, information on
recognizing and reporting online trouble, and several collections of good web
sites for kids and families. The
central resource, http://www.GetNetWise.org/, includes a searchable database of
more than 110 tools, designed to help families find resources that fit their
values and circumstances.
It is important to keep in mind that an individual user or family
decision to use an Internet filtering tool is very different from the decision
of a government agency, such as a library, to use the same tool. The diversity of Internet users and values
means that there is no "one‑size‑fits‑all"
solution. Every Internet filtering tool available will block access to some
amount of constitutionally protected material.
This is acceptable if it happens as the result of parental choice,
especially so long as there is a diversity of tools. It is constitutionally unacceptable as a government mandate.
IV. Conclusion
_______________________________________________________________________________
The "community standards" test in traditional obscenity
analysis simply cannot be applied rationally to the Internet. Legislative attempts to restrict content on
the Internet have failed to pass Constitutional muster every time they have
been tested. This is in part because
families and Internet users have the power to strike their own balance between
finding information and enforcing their values. To an unprecedented extent, the technology itself allows users to
create shared communities of interest, regardless of their geographic location
or the obscurity of their interests.
Consequently, Internet users have the power to avoid, and help their
children avoid, material they consider offensive or that violates their
values. On the Internet, individuals,
not governments, can define and enforce "community" standards.
V. Related Resources: Are There Really Communities on the
Internet?
_______________________________________________________________________________
Yes! The Internet combines
characteristics of traditional mail, the telephone, publishing, and
broadcasting, making descriptions of "the Internet" difficult. The
nuts and bolts of the Internet are ever‑increasing numbers of
interconnected computers and computer networks. These networks have fostered the development of communities
around web sites, Usenet news groups, e‑mail mailing lists, and real‑time
communications such as chat. For more
information on Internet communities, see Scot Hacker's February 1998 article, A
Brief History of Online Communities, http://
www.zdnet.com/devhead/stories/articles/0,4413,1600719,00.html.
E‑mail mailing lists
Much e‑mail communication is individual‑to‑individual,
between individuals who are already part of an offline community‑‑students,
co‑workers, or family members, for example. Some individuals use "private" e‑mail lists to
communicate with previously existing, real‑world communities; for
example, to communicate with the entire office, or to everyone enrolled in a
particular class. However, these are
only part of the e‑mail traffic carried on the Internet.
There are many mailing lists that people consciously join, such as
news headline lists provided by ZDNet http://www.zdnet.com, or the Center for
Democracy and Technology's Policy Posts http://www.cdt.org/publications/, which
provide technology industry news or current information on Internet civil
liberties issues. There are also an
enormous number of interactive e‑mail mailing lists, each constituting a
community of interest. The web site
http:// www.Liszt.com provides a searchable directory of more than 90,000 topic‑
specific mailing lists that anyone can join.
The topics listed include support for parents of children with Spina
Bifida, fans of the band The Monkees, members of Amnesty International,
Christian quilters, feminist librarians, Cajun cooking and just about any other
topic you can imagine. Mailing lists
provide a sense of community as people interact over a longer period of time,
and over a range of ideas within a topic area.
Writing, reading, and responding to web sites
Web sites can also be interactive and can support the creation of
Internet communities. A person who
writes a web page makes it available for anyone to read. Depending on the author's skill, promotional
ability, interests, and luck, the material may or may not be read. However, without an interactive component,
there will be minimal opportunity for a sense of community to develop. This is similar to the level of community
shared in the physical world, by a group of subscribers to the same magazine.
To overcome this static quality, and change the site into a
community, a small but increasing number of web sites provide readers with the
opportunity to comment on or respond to posted articles. For example, on the technology news web
site, Slashdot: News for Nerds. Stuff
that Matters, http:// www.slashdot.org, each article is followed by a series of
responses posted by readers. Slashdot
readers may respond to other responses ("sibling" comments) as well
as to the original "parent" article.
That Slashdot is a real community became vivid during the days and
weeks following the tragic shooting incident at Columbine High School in
Littleton, Colorado. During the
immediate aftermath of the shooting incident, much was made of the fact that
the shooters were black‑trenchcoat‑wearing outcasts in their high
school who spent a lot of time playing video games and using the Internet. Writer Jon Katz wrote several articles for
Slashdot about the "Geek Profiling" witch‑hunts that
followed. Slashdot was almost
immediately flooded with thousands of responses, particularly from young people
whose schools and families panicked in response to the shootings, denying
computer access to student "outcasts" whose main social support and
sense of community came from the Internet.
Most interactive web site communities are less emotionally intense,
focusing instead on things like product reviews of new computer software or
comments on current events. For
example, Amazon.com http://www.amazon.com, the Internet bookseller, provides
web site visitors the opportunity to post book reviews or comments on
previously posted book reviews, creating a little of the feel of a neighborhood
bookstore where people like to talk about the books they read.
Real‑time Internet communication‑‑chat
When an Internet user joins a chat "channel" or
"room," the user becomes part of a real‑time, global,
interactive forum. Every time he or she
types a line of text, it becomes immediately visible to all of the other
channel participants. A group of
Internet users who join the same channel read and contribute to the same
ongoing discussion whether they are in Boston, Madrid, or Cape Town.
Liszt.com lists over 37,000 chat "channels." This does not include any of the thousands
of Web‑based chat locations or chat "rooms" in America Online
and other dial‑in online services.
These mirror the diversity of the rest of the Internet in terms of topic
and tone. When a group of people chat
together on a regular basis and at a regular location, they develop into a
community. Indeed, the immediacy of chat can help a user feel quickly connected
to the community.
Reading and writing to news groups
"News group" is a misnomer for the more than 30,000
Internet‑based interest groups that allow people to post information to a
central site where anyone can read and respond to messages. News groups can develop into communities in
much the same way that interactive web sites can. Some active news group communities have been online for
considerably longer than most people have known about the Internet (10kyears).
FNa. Center for Democracy and Technology, 1634 I Street,
Northwest, Suite 1100, Washington, D.C. 20006, (202) 637‑9800,
lkessler@cdt.org, and, 11 Lakeview Street, Arlington, Massachusetts 02476,
(781) 648‑6252, rapawy @alumni.stanford.edu. Mr. Kessler is Staff Counsel
for the Center for Democracy and Technology, an Internet civil liberties
advocacy organization. Mr. Rapawy is a
J.D. and M.P.P. candidate at Harvard University.
FN1. Portions of this paper were first
presented at the 1999‑2000 Oliver
Wendell Holmes Symposium, hosted by the Walter F. George School of Law and the
Mercer Law Review, Mar. 17‑18‑2000
FN2.
http://www.oclc.org/oclc/press/1990908.htm. >.
Copyright © 2000 Association of
Trial Lawyers of America
Ann.2000 ATLA‑CLE 1605
END OF DOCUMENT