Transcript Gift of Fire

A Gift of Fire
Third edition
Sara Baase
Chapter 3: Freedom of Speech
Slides prepared by Cyndi Chie and Sarah Frye (and Liam Keliher)
What We Will Cover
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Legal Foundations
Changing Communication Paradigms
Controlling Offensive Speech
Censorship on the Global Net
Anonymity
Net Neutrality or De-regulation (Free
Market)?
Offensive / Dangerous
Material Online
• Material that may be very offensive to
some, and potentially dangerous, is readily
available online:
– Ku Klux Klan (www.kkk.com)
– Aryan Nations (www.aryan-nations.org)
– bomb-building information
– pornography
Fighting Fire With Fire
• Of course, those who oppose such
material can also use the Internet to get
their messages out:
– National Association for the Advancement
of Colored People (www.naacp.org)
– Simon Wiesenthal Center
(www.wiesenthal.com)
– anti-pornography groups
• www.cybertip.ca
Ethical Questions
• What should be allowed / forbidden on the
Internet?
• Does protection of children justify
restricting material that adults can access?
• Does providing material that could be
misused (e.g., bomb-building information)
constitute a crime?
• Where is the line between art and
pornography?
Legal Foundations
• In the U.S., the First Amendment to the
Constitution is the basis for almost legal
considerations of free-speech:
– 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.
Legal Foundations
• In Canada, Section 2 of the Charter of
Rights and Freedoms lists four
fundamental freedoms:
– (a) freedom of conscience and religion;
– (b) freedom of thought, belief, opinion and
expression, including freedom of the press
and other media of communication;
– (c) freedom of peaceful assembly; and
– (d) freedom of association.
Changing Communication
Paradigms
Pre-Internet, there were three main
categories of communications media:
• Print media (newspapers, magazines,
books)
• Broadcasters (television, radio)
• Common carriers (telephone, postal
system)
Legally, each of these was treated differently
Changing Communication
Paradigms
Different legal treatments:
• Print – strongest protection
• Broadcast – fact that it could reach into
homes unsolicited led to tighter rules
• Common carrier – often treated as
“neutral”, not responsible for content
transmitted
Changing Communication
Paradigms (cont.)
Free-speech Principles:
• Written for offensive and/or
controversial speech and ideas
• Restriction on the power of government,
not individuals or private businesses
Changing Communication
Paradigms (cont.)
Free-speech Principles (cont.):
• U.S. Supreme Court principles and guidelines:
– Advocating illegal acts is often legal
– Does not protect libel (false and damaging
statements) and direct, specific threats
– Allows some restrictions on advertising
– Inciting violence is sometimes illegal
– Protects anonymous speech
Changing Communication
Paradigms (cont.)
Free-speech Principles (cont.):
• In U.S., laws that have a “chilling effect” on
freedom of speech are often struck down
– create an atmosphere of fear that restricts
legal speech
Controlling Offensive
Speech (cont.)
What was already illegal?
• Obscenity
– 1. Depicts a sexual act against state law
– 2. Depicts these acts in a patently offensive
manner that appeals to prurient interest as
judged by a reasonable person using
community standards
– 3. Lacks literary, artistic, social, political or
scientific value
Controlling Offensive
Speech (cont.)
Internet Censorship Laws & Alternatives:
• Communication Decency Act (CDA) – 1996
– Attempted to avoid conflict with First
Amendment by focusing on children
– Fine of $100,000 and 2 years in prison for
anyone making indecent or obscene material
available to a person under 18
– Global reach of Net makes this complicated
– anyone with an open Web site (not
subscription-based) is making material
available to children
Controlling Offensive
Speech (cont.)
Internet Censorship Laws & Alternatives (cont.):
• Communication Decency Act (CDA) (cont.)
– Found to be unconstitutional:
• The worst material threatening children
was already illegal
• It was too vague and broad
• It did not use the least restrictive means
of accomplishing the goal of protecting
children
Controlling Offensive
Speech (cont.)
Internet Censorship Laws & Alternatives (cont.):
• Child Online Protection Act of 1998 (COPA):
– Federal crime ($50,000 fine and 1 year in jail) for
commercial web sites making available to minors
material harmful by FCC standards
– Found to be unconstitutional:
• Government did not show that COPA was
necessary to protect children
• Reduces everyone to most conservative standards
• Child Online Protection Commission concluded
that less restrictive means, filtering, was superior
to COPA
Controlling Offensive
Speech (cont.)
Internet Censorship Laws & Alternatives (cont.):
• Children's Internet Protection Act of 2000 (CIPA):
– Requires schools and libraries that participate in
certain federal programs to install filtering software
– Upheld in court:
• Does not violate First Amendment since it does
not require the use of filters, impose jail or fines
• It sets a condition for receipt of certain federal
funds
Controlling Offensive
Speech (cont.)
Internet Censorship Laws & Alternatives (cont.):
• Filters
– Block sites with specific words, phrases or
images
– Parental control for sex and violence
– Updated frequently but may still screen out
too much (false positives) or too little
(false negatives)
– Not possible to eliminate all errors
– What should be blocked?
Controlling Offensive
Speech (cont.)
Spam:
• What’s the problem?
– Loosely described as unsolicited bulk email
– Mostly commercial advertisements
– Angers many people
• Free speech issues
– Spam imposes a cost on others not protected by
free speech
– Spam filters do not violate free speech (free
speech does not require anyone to listen)
Controlling Offensive
Speech
Discussion Questions
• Is the the Internet an appropriate tool for
young children? Why or why not?
Censorship on the Global
Net
Global Impact of Censorship
• Global nature of the Internet protects against censorship
(banned in one country, move to another)
• However, may result in more restrictive censorship
(block everything in an attempt to block one thing)
• Yahoo and French censorship
– French laws forbid display/sale of Nazi memorabilia
– Yahoo sued because Nazi material could be viewed
on Yahoo’s U.S. site (not Yahoo’s French site)
– Legal status unclear
– Yahoo removed “hate material” from all its sites
Censorship on the Global
Net (cont.)
Censorship in Other Nations:
• Attempts to limit the flow of information on the
Internet similar to earlier attempts to place
limits on other communications media
• Some countries own the Internet backbone
within their countries, block at the border
specific sites and content
• Some countries ban all or certain types of
access to the Internet, e.g., Afghanistan
Censorship on the Global
Net (cont.)
Aiding Foreign Censors:
• Companies who do business in countries that
control Internet access must comply with the
local laws
• Google argued that some access is better
than no access
Anonymity
Common Sense and the Internet:
• Anonymity protected by the First Amendment
• Services available to send anonymous email
(Anonymizer.com)
• Anonymizing services used by individuals,
businesses, law enforcement agencies, and
government intelligence services
Anonymity (cont.)
Against Anonymity:
• Fears
– It hides crime or protects criminals
– Glowing reviews (such as those posted on eBay
or Amazon.com) may actually be from the author,
publisher, seller, or their friends
• U.S. and European countries working on laws that
require ISPs to maintain records of the true identity of
each user and maintain records of online activity for
potential use in criminal investigations
Anonymity Discussion
Questions
• Where (if anywhere) is anonymity
appropriate on the Internet?
• What are some kinds of Web sites that
should prohibit anonymity?
• Where (if anywhere) should laws
prohibit anonymity on the Internet?
Protecting Access and
Innovation
Net Neutrality or De-regulation?
• Should companies be permitted to exclude or
give special treatment to content transmitted
based on the content itself or on the company
that provides it?
• Should companies be permitted to provide
different levels of speed at different prices?
Protecting Access and
Innovation (cont.)
Net Neutrality or De-regulation? (cont.)
• Net Neutrality
– Argue for equal treatment of all
customers
• De-regulation
– Flexibility and market incentives will
benefit customers