Ethics and the Law on the Electronic Frontier

Computer Communications and Freedom of Expression

• General Readings for this Topic
• Supreme Court Decisions
• The Internet Censorship Saga: 1994-1997
• Other Material for this Topic
  • Anonymity
  • University Computer Policies
  • Miscellaneous

What is freedom of expression? Without the freedom to offend, it ceases to exist.
--Salman Rushdie, “In good faith”

Now, what I am trying to suggest to you is just to understand the moment in time we are at in which at least the people on the Internet know that when you do something through words, you do something.
-- Catharine MacKinnon (Discussing the Jake Baker case, March 9, 1995)

If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought–not free thought for those who agree with us but freedom for the thought that we hate.
-- Justice Oliver Wendell Holmes, Jr., in U.S. v. Schwimmer, 279 U.S. 644 (1929)

The Jeffersonian model for universal freedom which Mr. Gingrich so rightly applauds could not take into account the barbarisms of the modern mind. Nor could it imagine the genius by which such barbarisms can be disseminated as they are today, in seconds, to the remotest and still most innocent corners of the world. Someone, perhaps even the Speaker of the House of Representatives, is going to have to consider soon the implications, for ill as well as good, of our venture out onto the information superhighway, or else there are going to be some very messy electronic traffic accidents.
--Judge Robert Bork, “An Electronic Sink of Depravity.” in the Spectator, (February 4, 1995)

Cutting through the acronyms and argot that littered the hearing testimony, the Internet may fairly be regarded as a never-ending worldwide conversation. The Government may not, through the CDA, interrupt that conversation. As the most participatory form of mass speech yet developed, the Internet deserves the highest protection from governmental intrusion. Just as the strength of the Internet is chaos, so the strength of our liberty depends upon the chaos and cacophony of the unfettered speech the First Amendment protects.
-- U.S. District Judge Stewart Dalzell (June 12, 1996)

General Readings

This semester, our discussion of free expression on the internet will be dominated by the story of censorship and the Communications Decency Act  from which specific assignments will be made. There are also a few other pieces on this general topic that are good reading for context and background.

• Tribe, Laurence H. “The Constitution in Cyberspace.”
  This was the keynote address at the First Conference on Computers, Freedom and Privacy, in 1991, by the eminent Constitutional scholar Laurence Tribe of Harvard Law School. Its proposed “twenty-seventh amendment” has been widely cited as a principle for interpreting Constitutional issues in cyberspace. As you read this piece, consider how well Tribe’s view has held up over the ensuing seven years.
• Freedom of Expression. This briefing paper by the ACLU contains a concise summary of the major Supreme Court cases involving the First Amendment.

Recommended Readings

Landmark U.S. Supreme Court Decisions on Communications and Free Expression

It’s useful to read interpretations of Supreme Court decisions, but you should also read some of the actual decisions for yourself. Note that may decisions being with a syllabus that lists the basic findings in the case, before presenting the opinion(s) of the Justices.

• Schenck v. U.S., 249 U.S. 47 (1919): The opinion here by Justice Holmes affirms that some restrictions on speech are constitutional, and it articulates the “clear and present danger” principle. (“The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”)
• Abrams v. U.S., 250 U.S. 616 (1919): This case, along with Schenk, forms the cornerstone of modern First Amendment jurisprudence. The Court’s decision here upheld the Schenk prohibition, but the importance of the opinion is in Justice Holmes’s passionate dissenting opinion, which argues that speech can be restricted only if it presents a clear and present danger. (“It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned.”)
• Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942): This case established the doctrine that “fighting words” are not protected by the First Amendment.
• Whitney v. People of State of California, 274 U.S. 357 (1927): In this case, the Supreme Court upheld a conviction for “criminal syndicalism” (effectively, conspiracy). The decision is notable for Justice Brandeis’s concurring decision which, despite the fact that it concurs in the conviction, has been called “the greatest court opinion on freedom of speech ever written”.
• Brandenburg v. Ohio, 395 U.S. 444 (1969): This decision overthrew the “clear and present danger” rule, overturning Whitney v. California. The decision spells out the Court’s misgivings that the rule had been overly broadly construed over the years and replaced it with a narrower provision. (“Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”)
• Miller v. California, 413 U.S. 15 (1973): This decision lays out the Court’s three-part test for obscenity, and reaffirms that obscene speech is not protected by the First Amendment.
• New York Times Co. v. Sullivan, 376 U.S. 254 (1964): In this decision, the Court held that a defamatory falsehood about a public official can be punished only if there was “actual malice,” i.e.: “knowledge that the statement was false or with reckless disregard of whether it was false or not.”
• Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974): In this ruling, the Court clarified that the New York Times standard on limitation of liability does not apply in the case of private citizens.
• FCC v. Pacifica Foundation, 438 U.S. 726 (1978): In this case, the Court upheld the power of the FCC to regulate indecent (as opposed to obscene) speech in broadcast media, thereby codifying into law the principle that material broadcast over radio or TV has narrower Constitutional protections than material written in books or newspapers. The rationale for this rests on the “pervasive presence” of the medium – that it is difficult to avoid unintentionally running across objectionable broadcasts even in the privacy of one’s own home – and that the medium is “uniquely accessible to children.” The question of whether material transmitted via the internet is more like broadcasts or like books was central to the arguments over the constitutionality of the CDA.
• Sable Communications v. FCC, 492 U.S. 115 (1989): The Court ruled here that a 1983 law banning “dial-a-porn” services was unconstitutional, on the grounds that it was overly broad. The opinion by Justice White lays out the famous “least restrictive means” test.

In doing research on these and other cases, one outstanding reference is the Library of Congress’s The Constitution of the United States of America: Analysis and Interpretation, an extensive set of annotations of Supreme Court cases up till 1992. You can locate cases with the aid of an on-line search engine, but it’s probably easier to download the chapter on the First Amendment (780K!) and search with a text editor.

The Internet Censorship Saga: 1994-1997

This extensive story has a page of its own.

Other Material

Anonymity

The use of anonymous communication on the Internet has raised concerns, but also has its strong defenders. This issue has not been explicitly addressed by laws or by the Court, although it may well arise in the near future.

• Froomkin, Michael A. “Anonymity and Its Enmities.” Journal of Online Law (1995). This article analyzes the legal status of attempts to ban anonymity.
• Froomkin, Michael A. “Flood Control on the Information Ocean: Living with Anonymity, Digital Cash, and Distributed Data Bases.” U. Pittsburgh J. of Law and Commerce 15, no. 395 (1996). This includes a revised version of the above paper, as well as a discussion of the lager context of anonymity and privacy.
• Mcintyre v. Ohio Elections Commission (1975). This Supreme Court decision may be critical to the legal status of anonymity on the Internet. In it, the Court affirms the right to conduct anonymous political leafletting.
• Anonymity: Index. This page, maintained by Arnoud “Galactus” Engelfriet, has links to anomyous remailers and other tools for hiding your identity on the network.

University Computer Policies

Many sticky issues of “civil behavior” on the network continue to be played out on college campuses. Here is some material dealing with this topic:

• MITnet Rules of Use. This is part of the document Welcome to Athena.
• The Civil Liberties Union of Harvard. “Report on Computers at Harvard.” November 1995.
  This is a set of recommendations put out in November 1995, by the The Civil Liberties Union of Harvard, with suggested computer use policies to be adopted by Harvard. (Were any of these adopted? How do they compare with MIT’s policies?)
• Here are some hypothetical discussion cases on university computing policy, created by Greg Jackson, formerly MIT’s Director of Academic Computing: Alpha Sigma (PDF), Jane Thatcher (PDF), Judy Hamilton (PDF), Malekh Salimi (PDF), Michael Zareny (PDF), Typhoid Mary (PDF)
• Mitchell, Melissa. “Electronic misbehavior’ takes many forms on the Internet.” University of Illinois faculty newsletter, 1994.
  This article describes the approach to computer policy at UI.
• Kovaleski, Serge F. “Universities Vexed by Use of Their Internet Connections for Hate Mail.” The Washington Post, August 4, 1995.
• Shear, Michael D. “First Amendment Tangle In the Net: Colleges Struggle to Balance Free Speech, Cybersensitivity.” The Washington Post, October 23, 1995.
  Story dealing with the disciplining of a student at Virginia Tech for posting a hate message.

Miscellaneous

• Lappin, Todd. “The First Amendment, new media, and the Supreme Court.” Wired, Spring 1996.
  This note summarized the issues the Court would have to consider in the (then upcoming) challenge to the Communications Decency Act.
• “The message in the medium: The First Amendment on the information superhighway.” Harvard Law Review (March 1994). This is an examination of the role of technology in the First Amendment treatment of media.
• Shallit, Jeffrey. “Public Networks and Censorship.” Ontario Library Association. January 15, 1995. Note “Shallit’s Three Laws.” (A talk by University of Waterloo Professor)