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Free Speech

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Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment I, The Bill of Rights

News

Supreme Court Brief Filed in Defense of Anonymity. EPIC, the ACLU, and 14 legal scholars filed an amicus curiae brief (PDF) with the Supreme Court in Watchtower Bible v. Stratton, Ohio. The case concerns an ordinance requiring that door-to-door petitioners obtain a permit and identify themselves upon demand. EPIC argues that the ordinance implicates privacy, as well as the First Amendment rights of anonymity, expression, and freedom of association. The Court will hear arguments in 2002. (Nov. 29)

Supreme Court Considers Internet Censorship Law. The U.S. Supreme Court heard oral arguments on November 28 in Ashcroft v. ACLU, a constitutional challenge to the Child Online Protection Act (COPA). EPIC joined with the ACLU and other plaintiffs in a lawsuit to strike down the law, which prohibits online display of material that is "harmful to minors" to any person who is under 17 years of age. Two lower federal courts have agreed that the law violates the First Amendment. The parties' Supreme Court briefs and background information are available at EPIC's COPA Litigation Page. (Nov. 28)

District Court Dismisses DMCA Challenge. The Electronic Frontier Foundation (EFF) represented a team led by Princeton Professor Ed Felten in the first skirmish of a case challenging the Digital Millennium Copyright Act (DMCA) on November 28. Judge Garrett Brown of the Federal District Court in Trenton, New Jersey, dismissed the case after 25 minutes of debate in which the First Amendment ramifications of the case were not addressed. EFF intends to appeal. (Nov. 28)

Appeals Court Upholds Anonymous Online Speech. In the first appellate decision to address the issue, a New Jersey appeals court has established stringent procedural and evidentiary standards that must be met before the identity of an anonymous online poster can be disclosed through litigation. Those protections have long been urged by EPIC and other public interest groups. The court recognized the constitutional right to communicate anonymously and refused to order the identification of a "John Doe" speaker who had posted comments on a Yahoo! message board. 

Overview of Free Speech Protection

More than a constitutional guarantee preventing government restriction on public debate, the First Amendment also one of the nation's most familiar and acclaimed cultural icons. Freedom of speech and the press is a vital part of the political, social and cultural growth of our country.

Although adopted as part of the Bill of Rights in 1791, most First Amendment doctrine is a result of twenty-century litigation. It wasn't until 1925, in Gitlow v. New York, that the Supreme Court extended the First Amendment freedoms of speech and the press to the states through the Fourteenth Amendment due process clause. Ancillary rights&endash;&endash;those integral to but not explicit within the First Amendment&endash;&endash;were not doctrinally recognized until the 1960s, when the Court decided cases determining the laws of libel and commercial speech, and establishing rights of privacy, access, and anonymity. The meaning of the First Amendment has continued to develop rapidly, in part because of changes in and the increasing importance of new technology.

Unlawful Restriction on Speech

Vagueness. The Court has ruled unconstitutional laws that are so vaguely written that persons of average inteligence must guess at (and likely differ as to) its meaning and application. Such laws "chill speech" because citizens facing such laws would keep quiet out of fear that their intended conduct would be illegal. As well, vague laws leave law enforcement officers too much discretion to enforce the law as they see fit.

Overbreadth. The Court has ruled unconstitutional laws that are so broadly written as to prohibit protected speech as well as unprotected speech.

Prior Restraint. Attempts to exercise prior restraints of speech or publication are almost always illegal, because such a restraint is an irreversible sanction on expression. However, licensing restrictions are upheld to various degrees in different media. The Court has said that each medium presents particular problems, and thus although the principles of free speech do not vary, every medium will be analyzed and treated as unique. The most striking example of this standard is the licensing regulations and right of reply requirements imposed on broadcasters.

Content Regulation. Any regulation based on the content of expression is subject to strict scrutiny: the Court will permit the regulation of content of speech only so long as the regulation is narrowly tailored to further a compelling government interest, and there is no less restrictive alternative.

Relevant case law:
  • Bartnicki v. Vopper. A radio host could not be punished for disclosing the contents of an illegally intercepted telephone conversation. The majority opinion by Justice Stevens states that the case presents "a conflict between interests of the highest order&endash;&endash;on the one hand, the interest in the full and free dissemination of information concerning public issues, and, on the other hand, the interest in individual privacy."
  • Cohen v. California. Wearing a jacket with "Fuck the Draft" on the back is expressive conduct fully protected by the First Amendment. Because the statement is not obscenity, incitement, or fighting words, punishment of such conduct must be analyzed under strict scrutiny. Real Audio recording of the oral argument before the Court.

Compelled Speech. The government cannot compel an individual to speak a message. Under this doctrine, in Miami Herald Publishing Co v. Tornillo the Court prohibited "right of reply" laws in print media, because a statute compelling a newspaper to print a reply would chill speech as newspapers would be less likely to cover incendiary public affairs. The prohibition on compelling speech has been used to overturn laws requiring speakers to reveal their identity, and thus creates further protection for the right of anonymity.

Despite the absolutism of the clause, "Congress shall make no law" has never been interpreted by the Court as an absolute prohibition on government regulation of speech. The Court has often said that the primary purpose of the First Amendment is to protect speech that promotes a robust public debate. Therefore, where speech is less valuable&endash;&endash;a judgement made on the basis of the speech's category, not its content&endash;&endash;it is granted less protection or no protection at all.

Lawful Regulation on Speech

Obscenity. Speech defined as obscenity is outside the boundaries of First Amendment protection. As defined by Miller v. California, obscenity is speech that (1) the average person, applying contemporary community standards, would find, taken as a whole, to appeal to the prurient interest; (2) depicts or describes in a patently offensive manner specifically defined sexual conduct; and (3) lacks as a whole serious literary, artistic, political or scientific value. The definition of obscenity, developed in 1973, focuses on a local "community standard," and has proven to be the crux of litigation surrounding internet censorship cases, which by their nature cannot depend upon local community standards. Further information is available at EPIC's COPA Litigation Page.

Fighting Words. Speech likely to provoke an average listener to retaliation, and thereby cause a breach of peace, falls outside the protection of the First Amendment because the words have no important role in the marketplace of ideas the freedom of speech is designed to promote. Chaplinsky v. New Hampshire.

Commercial Speech. Commercial speech, which was warranted no protection by the Court until 1980 in Central Hudson Gas & Electric, is now protected under an intermediate level of scrutiny because the motivation to market goods and services is believed sufficient to overcome any chill caused by government regulation. The government can ban deceptive or illegal commercial speech; any other regulation must be supported by a substantial interest to be achieved by restrictions, regulations in proportion to that interest, and a limitation on expression designed carefully to achieve the state's goal.

Incitement ("clear and present danger"). The government can regulate speech that is intended and likely to incite "imminent lawless action," or where the speech presents a "clear and present danger" to the security of the nation. Brandenburg v. Ohio.

Relevant case law:
  • Schenck v. United States. Upholding defendants' convictions under the Espionage Act for distribution of anti-war materials during World War I because even "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

Time Place and Manner. Content-neutral regulation of the time, place, or manner of speech that does not interfere with the message being delivered and leaves open adequate alternative channels of communication is permissible.

Libel/Slander. In New York Times Co. v. Sullivan, the Supreme Court recognized that expansive libel protection chills speech because speakers will be less likely to publish if they can be punished merely for being wrong. Therefore, the First Amendment requires public officials and public figures prove "actual malice" (knowing or reckless disregard for the truth of the statement). Public figures include those with fame, notoriety, and those who have injected themselves into the public debate on an issue. However, in Gertz v. Welch, the Court limited this expansive protection to public figure, not public causes: a publisher of defamatory statements about an individual who is neither a public official nor a public figure may not claim protection against liability for defamation on the ground that the statements concern an issue of public or general interest. Private figures must prove that a statement is false, and that the speaker engaged in some degree of negligence (mere falsity of the statement is insufficient). Laws vary state to state.

Relevant case law:
  • Hustler Magazine v. Falwell. Public figures and public officials may not recover for the tort of outrage (intentional infliction of emotional distress) without proving actual malice.

First Amendment Law and Technology

When the First Amendment was adopted, the "speech" at issue was person-to-person or newsprint. As new methods of communication are developed, they have presented unique challenges to First Amendment doctrine.

Post World War I, when motion pictures became readily accessible to all, the government became concerned over the potentially great influence this new medium would have over the morality and education of the American public. Specifically, many were concerned the availability and persuasiveness of the medium presented opportunities for filmmakers to seduce viewers with prurient images and religious or political propaganda. In response to these fears, licensing systems were implemented and upheld as constitutional. In 1915 the Court upheld licensing regulations against free speech challenges on the grounds that "the exhibition of moving pictures is a business, pure and simple, originated and conducted for profit, like other spectacles, not to be regarded ... as part of the press of the country." However, in 1948 the Court extended First Amendment protection to the film industry, and condemned government licensing systems. As a result, the industry moved towards self regulation through the development of what is now the Motion Picture Association of America, and the self-imposed ratings system.

The most notable examples of existing medium-specific government restrictions are the regulations imposed on radio and television broadcasters. The Radio Act was passed in 1927, permitting spectrum allocation by the government to those broadcasters who pledged to serve the public interest. The alleged justification for such a licensing system (an unconstitutional prior restraint in other media contexts) was the natural scarcity of the spectrum, and the need to cut down on signal interference for national security or emergency. The 1927 Act and the 1934 Communications Act imposed numerous content restrictions on broadcasters, including the "right of reply," (unlawful in print) and prohibitions on indecent, profane, or obscene speech. Such content regulations have been upheld because of the unique pervasiveness of the medium, which intrudes into the home and poses a risk that children will hear. The right of reply has been upheld because it was believed that the spectrum cannot accommodate everyone, therefore those granted a license must act as public fiduciaries.

Relevant case law:
  • FCC v. Pacifica Foundation George Carlin's monologue "filthy words" (listing the "seven dirty words" in a variety of contexts and colloquialisms ) because "vulgar," "offensive" and "shocking" was properly subject to time, place, and manner regulation and could be played only late at night when the possibility that children were listening was vastly reduced. The First Amendment protection available to broadcast media is the most limited because "of the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive."
    Real Audio
    recording of the oral argument before the Court.
  • Red Lion v. FCC upholding a "right of reply" requirement.

Digital Millennium Copyright Act (DMCA)

The Digital Millennium Copyright Act (DMCA) is a 1998 law designed to increase copyright holders' rights. The DMCA, which interferes with a user's ability to legitimately access content, created civil and criminal penalties for the creation or distribution of Digital Rights Management (DRM) circumvention tools. As a result, a user attempting to circumvent copyright protection, even for legitimate reasons, may violate federal law. Hollywood studios, and others seeking to prevent the dissemination of circumvention tools, have argued that publication of the codes permitting circumvention constitutes a violation of the DMCA. Those publishing the code have argued in response that code is speech, and that the DMCA's prohibition violates the First Amendment by placing government limitations on the ability to publish freely.

In June 2001, a Russian programmer named Dmitry Sklyarov published a program that can defeat the Digital Rights Management (DRM) technology used to secure Adobe eBooks. In July, at the behest of Adobe, the Department of Justice arrested Sklyarov for violating the DMCA shortly after he presented a paper on cracking Adobe copy protection. Sklyarov remained in jail for several weeks and has been released on $50,000 bail. The Electronic Frontier Foundation (EFF) is assisting in his defense, arguing that the DMCA is vague, violates the First Amendment, and exceeds constitutional authority under the Copyright Clause.

In January 2000, the Motion Picture Association of America (MPAA) initiated suits against web publishers in California, New York, Connecticut, and Norway, alleging that the DeCSS (a DVD descrambling program) software available on their sites constituted distribution of DRM circumvention tools in violation of the DMCA. In January 2000, a New York court barred 2600 Magazine from publishing or linking to DeCSS. In November, 2001, the Second Circuit upheld the restrictions on the grounds that DeCSS code is only partially protected speech, and that such speech can be restricted on the Internet. The court acknowledged that there is a trade off between allowing unfettered speech and preventing the misuse of copyrighted material.

The same week, the Federal District Court in Trenton, NH dismissed a lawsuit brought by Princeton professor Edward Felten against the Recording Industry Association of America (RIAA). RIAA sponsored a music industry challenge to crack proposed technologies for protecting music. Felten and his research group successfully participated in the challenge, and decided to publish their findings, at which point the music industry sent a letter threatening legal action for violation of DMCA if Felten published his work.

Felten challenged the constitutionality of the DMCA and asked the court for permission to publish Felten's work without fear of reprisal. The judge dismissed the case after 25 minutes of arguments that did not address the First Amendment implications of the DMCA. Felten's attorneys, led by the Electronic Frontier Foundation (EFF) plan to appeal.

Further information is available at EPIC'S Digital Rights Management Page.

Export Regulations

In an effort to safeguard national security and foreign intelligence gathering capabilities, the U.S. government has long placed strict export controls on encryption technologies. Originally, export controls were regulated under the International Traffic in Arms Regulations (ITAR), which placed restrictions on programs using algorithms of greater than 40 bit key length.

The argument made by those challenging such regulations closely mirrors that made by those challenging DMCA restrictions: code is speech, and as such is warranted First Amendment protection.

In a trilogy of cases referred to as Bernstein I, II and III, the constitutional validity of the export licensing system was challenged. Daniel Bernstein had developed an encryption program called "Snuffle" while a graduate student at the University of California at Berkley. Because ITAR defined export to include divulging data to any foreign person, whether in the United States or abroad, Bernstein was advised that he might infringe the regulations by publishing his work on the internet or teaching it to foreign nationals in his classes. Bernstein brought suit claiming that the licensing scheme under ITAR violated his First Amendment right to free speech.

In Bernstein I, the district court held that source code constitutes speech within the meaning of the First Amendment. In Bernstein II, the Court looked at the substantive issue and held that the licensing system under ITAR, which gave the export authority exclusive and absolute discretion to decide whether or not to grant licenses, was a "paradigm of standardless discretion" and constituted an unconstitutional prior restraint of speech.

To thwart the result of this decision, the Clinton Administration transferred responsibility for exports of cryptographic technologies from the Department of State to the Department of Commerce and amended the Export Administration Regulations (EAR) of the Department of Commerce to essentially replicate the ITAR controls on cryptographic technologies.

In Bernstein III these new regulations were subject to challenge. The California District Court upheld its earlier ruling and found them to be unconstitutional. The court of appeals ruled in favor of Bernstein in 1999.

The constitutionality of the export rules was challenged again in Junger v. Daley, when Ohio law professor Peter Junger was informed by the Department of Commerce that he would need an export license to post examples of his encryption program on his website. Junger claimed that this restriction on publication constituted a prior restraint on speech. In April of 2000 the Sixth Circuit stated that because "the computer source code is an expressive means for the exchange of information and ideas about computer programming . . . it is protected by the First Amendment."

Internet Regulations

The challenges posed by Internet to "traditional" First Amendment law are widely recognized. Many argue that the Internet should "self-regulate" because any governmental regulatory regime would necessarily lag behind&endash;&endash;and thus fail to effectively regulate&endash;&endash;the rapidly developing technology. Nevertheless, the Internet has been subjected to numerous attempts at regulation, many which have presented legal obstacles and challenges.

COPA, its predecessors, and its progeny. In February of 1996, the Communications Decency Act (CDA) was enacted as part of the Telecommunications Act of 1996. CDA sought to protect minors from harmful material online by criminalizing internet transmission of "indecent" materials to minors. In 1997, the Supreme Court ruled 9-0 in Reno v. American Civil Liberties Union that CDA was an unconstitutional restriction on the Internet, a "unique and wholly new medium of worldwide human communication" deserving of full First Amendment protection. Because only obscenity is regulable, the regulations would effectively reduce the constitutionally protected material available to adults "to only what is fit for children." The unique characteristics of Internet communications (its ready availability and ease of use) were integral to the decision. Because it is possible to warn viewers about incipient indecent content (unlike radio, where warnings fail to protect all potential listeners), and because alternatives exist, at least in theory, the CDA's provisions cast a "far darker shadow over free speech which threatened to torch a larger segment of the Internet community than [any] speech restrictions previously encountered."

In October 1998, Congress passed and President Clinton signed into law the Child Online Protection Act (COPA), the "sequel" to CDA. COPA establishes criminal penalties for any commercial distribution of material harmful to minors. EPIC joined with the ACLU and other plaintiffs in a lawsuit to strike down the law. In February 1999, the federal district court in Philadelphia issued an injunction preventing the government from enforcing COPA. COPA was declared unconstitutional by the Third Circuit in June 1999 on the grounds that, because there is no way to prevent access to content on the basis of geography, the Act would require each individual speaker on the Internet to conform his speech to the most restrictive and conservative state's community standards of what constitutes material harmful to minors.

The parties' Supreme Court briefs and further information are available at EPIC's COPA Litigation Page.

CIPA & the Flaws with Filters. In December 1999 the Children's Internet Protection Act (CIPA) passed into law. The legislation requires schools and libraries receiving federal funds for Internet access to install filtering software to block access to materials that are obscene, child pornography, or harmful to minors. In a consolidated complaint filed in federal court in Philadelphia on March 2001, EPIC, the ACLU, and the American Library Association (ALA) challenged the Children's Internet Protection Act (CIPA) on both privacy and First Amendment grounds.

Congress approved CIPA even after its own 18-member committee rejected the proposal because of the risk that "protected, harmless, or innocent speech would be accidentally or inappropriately blocked."

The case survived a motion to dismiss in July 2001, and is scheduled to go before a special three-judge panel of the U.S. District Court of Philadelphia in March 2002.

EPIC has released a new collection of critiques and studies that document the negative impact of content blocking systems. Filters and Freedom 2.0: Free Speech Perspectives on Internet Content Controls warns that the adoption of software to limit the availability of material online may jeopardize free expression and facilitate government censorship. Often characterized by their proponents as mere features or tools, filtering and rating systems can also be viewed as fundamental architectural changes that may, in fact, facilitate the suppression of speech far more effectively than national laws alone ever could. Several popular Internet filters block websites of human rights organizations. A 1998 study by Consumer Reports noted "filters block harmless sites merely because their software does not consider the context in which a word or phrase is used. Far more troubling is when a filter appears to block legitimate sites based on moral or political value judgments."

More information about filters and internet regulation is available at Internet Filters: A Public Policy Report.

Criminal Sanctions for Online Speech Content . In May 2000, a French court ruled that Yahoo! had to ban French users from English-language auction sites where Nazi books, daggers, and other paraphernalia are sold. Yahoo! argued that because Yahoo.com services are U.S. governed, auctions of such materials cannot be barred because of the U.S. constitutional right to freedom of speech. (Yahoo's French-language portal yahoo.fr does not host auctions of the Nazi items, but there is no accurate method of identifying French users of the U.S. portal and blocking their access). The November ruling was issued after the judge issued a reprieve from his initial verdict in May, pending more in-depth testimony from technical experts as to the feasibility of blocking access to French users.

In November 2001, U.S. District Court Judge Jeremy Fogel ruled that the French decision could not be enforced in U.S. courts, because the First Amendment protects content generated in the U.S. by American companies from being regulated by authorities in countries that have more restrictive laws on freedom of expression. Two groups, the The League Against Racism and Anti-semitism and the French Union of Jewish Students are seeking an appeal on the grounds that U.S. law should not trump French law.

Relevant case law:

  • U.S. District Court decision in Blumenthal v. Drudge holding that America Online is immune from suits arising from content posted on AOL but created by other parties.
  • U.S. District Court decision in Cubby v. Compuserve, ruling that Compuserve is held to the standard of a library with regard to its content.
  • U.S. District Court decision in Cyber Promotions, Inc. v. America Online holding that AOL is not a public forum and can thus ban junk e-mail from its system.

Anonymity

"Anonymity is a shield from the tyranny of the majority ... It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation&endash;&endash;and their ideas from suppression&endash;&endash;at the hand of an intolerant society."

In three cases, spanning from 1960 to 1999, the Supreme Court has reaffirmed the principle that sacrificing anonymity "might deter perfectly peaceful discussions of public matters of importance."

Anonymity&endash;&endash;the ability to conceal one's identity while communicating&endash;&endash;enables the expression of political ideas, participation in the government process, membership in political associations, and the practice of religious belief without fear of government intimidation or public retaliation.

Disclosure laws have been upheld only where there is a compelling government interest at stake, such as assuring the integrity of the election process by requiring campaign contribution disclosures.

Anonymity has been an appealing characteristic for the majority of Internet users. Individuals are able to post to message boards, visit chatrooms, and browse informational sites without revealing their identity. This anonymity allows those engaged in unpopular, controversial, or embarrassing activity to seek and disseminate information without sacrificing their privacy or reputations. However, this anonymity is increasingly being threatened as civil litigants have begun using the discovery process to pierce the veil of online anonymity. Since 1998, innumerable civil defamation lawsuits have been filed against "John Doe" defendants by plaintiffs allegedly harmed by anonymous Internet postings.

Current law permits any civil litigant to allege defamation and bring a civil suit. If the subpoena is approved by the court, the ISP must disclose the individual's name before the statement is proven defamatory. This enables companies to use the discovery process to intimidate anonymous users.

In the first appellate decision to address the issue, a New Jersey appeals court established stringent procedural and evidentiary standards that must be met before the identity of an anonymous online poster can be disclosed through litigation. The court recognized the constitutional right to communicate anonymously and refused to order the identification of a "John Doe" speaker who had posted comments on a Yahoo! message board. 

Relevant case law:
  • Buckley v. American Constitutional Law Foundation reaffirming the importance of anonymity in the context of political speech.
  • McIntyre v. Ohio upholding the right to distribute anonymous political leaflets. Real Audio recording of the oral argument before the Court.
  • Talley v. California upholding the right to anonymous speech by overturning a ban on anonymous leafleting. The majority stated: "Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all."
  • Buckley v. Valeo financial contributions are speech because it is a method of expressing political ideologies; however some disclosure requirements are necessary in this context in order to ensure the integrity of the electoral process.

International Developments

The development of the internet has created international havoc as countries around the world struggle to develop laws that will permit geographical regulation of a borderless medium. The internet is thought to offer unlimited free speech. But censorship is increasing as countries develop tools&endash;&endash;legal and technological&endash;&endash;for limiting content available to its citizens.

Press Freedom Survey 2001, an overview of current international free speech protection, is available in pdf. Following is a brief overview of online speech protection in various countries around the world.

Australia. The Commonwealth Internet Censorship legislation, came into force on January 01, 2000. ISPs have been made criminally liable for the content of the sites that their subscribers can access, and requires ISPs to remove and censor pornographic material. Proposed new Internet censorship laws are included in a Bill tabled in the Parliament on November 7, 2001. The Bill would criminalise making available content unsuitable for children online, even if the content is only made available to adults.

China. Chinese laws require Internet companies to secure licenses and provide liability for illegal content carried on their systems. Companies must keep records of users and their messages. For sending or receiving messages critical of Beijing or of Communist policy, a Chinese user can face up to 10 years in prison.

Great Britain. The settlement of what would have been the fountainhead case addressing liability of ISPs in defamation and libel cases has placed perceived pressure upon ISPs to take down internet content which carries defamatory content as defined by the Defamation Act of 1996. The Regulation of Investigatory Powers Act gives the police broad access to e-mail and other online communications. The British government has begun building a system to monitor all online activities. The system would require ISPs to hardwire links directly to it.

The Middle East. Although laws vary country to country, average internet speech restrictions in Middle Eastern countries is less severe than those imposed upon print media. However, the internet access in countries such as Jordan, Saudi Arabia, and Iran hovers at under two percent, and most countries ban through various means "inappropriate content." The more wired countries still censor on-line expression and access: Bahrain with six percent access pervasively monitors and bans any information critical of the ruling Al Khalifa family, and the United Arab Emirates with seventeen percent access requires users to access the Internet through a proxy server maintained by the state. The proxy refuses access to websites that are banned by the government or that reveal "objectionable" material.

Russia. President Putin ordered all ISPs to channel messages through security forces for monitoring.

Singapore. The Internal Security Act permits censorship of publications that incite violence or disobedience to the law, arouse tensions among social groups, or threaten national security, national interests, or public order. There are also strict defamation and press laws.

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