The Internet, Freedom The Internet, Freedom of Speech, and the of Speech, and the

CDACDA

Mike HolmesMike Holmes

CS 99CS 99

February 29, 2000February 29, 2000

IntroductionIntroduction• The Internet is a new medium, so few The Internet is a new medium, so few

laws or ethical guidelines exist to laws or ethical guidelines exist to control its content.control its content.

• It is sufficiently different from other It is sufficiently different from other communication technologies that communication technologies that existing laws governing those existing laws governing those mediums have been deemed mediums have been deemed inappropriate or inadequate for inappropriate or inadequate for regulation of the Internet.regulation of the Internet.

The Internet is not like The Internet is not like print because…print because…

• Its content is rarely displayed out Its content is rarely displayed out in the open, where it may be in the open, where it may be accidentally seen by those who do accidentally seen by those who do not wish to view it. (As opposed to not wish to view it. (As opposed to in a bookstore window or at a in a bookstore window or at a newsstand.)newsstand.)

The Internet is not like a The Internet is not like a broadcast because…broadcast because…

• Its content is not broadcast over the Its content is not broadcast over the airwaves, where one might airwaves, where one might accidentally “tune in” to it merely by accidentally “tune in” to it merely by turning on a device. turning on a device.

• One cannot always specifically One cannot always specifically request to receive or not receive request to receive or not receive certain broadcasts. A radio or certain broadcasts. A radio or television antenna will pick up all television antenna will pick up all available content.available content.

The Internet is not like a The Internet is not like a telephone because…telephone because…

• It is searchable.It is searchable.• It is visual as well as aural.It is visual as well as aural.• The content is generally stored The content is generally stored

instead of transitory.instead of transitory.• Communications are often open to Communications are often open to

the community.the community.

A major attempt by the US A major attempt by the US Government to regulate Government to regulate

Internet content:Internet content:

•The Communications The Communications Decency Act (CDA) of 1996Decency Act (CDA) of 1996

•Declared unconstitutional by Declared unconstitutional by a unanimous Supreme Court a unanimous Supreme Court decision on June 26, 1997. decision on June 26, 1997.

QuestionsQuestions

• Was the CDA ethical?Was the CDA ethical?• Was it any more or less ethical Was it any more or less ethical

than similar laws because of the than similar laws because of the nature of the Internet?nature of the Internet?

• Are any such laws ethical?Are any such laws ethical?

An example of some An example of some guidelines for content:guidelines for content:

• ““No…individual may use the No…individual may use the Internet to harm national security, Internet to harm national security, disclose state secrets, harm the disclose state secrets, harm the interests of the State, of society or interests of the State, of society or of a group, the legal rights of of a group, the legal rights of citizens or to take part in criminal citizens or to take part in criminal activities.”activities.”

• ““No…individual may use the Internet to create, No…individual may use the Internet to create, replicate, retrieve or transmit the following kinds replicate, retrieve or transmit the following kinds of information:of information:

• Inciting to resist or break the Constitution or Inciting to resist or break the Constitution or laws or the implementation of administrative laws or the implementation of administrative regulations;regulations;

• Inciting to overthrow the government…;Inciting to overthrow the government…;• Inciting division of the country, harming national Inciting division of the country, harming national

[unity];[unity];• Inciting hatred or discrimination…;Inciting hatred or discrimination…;• Making falsehoods or distorting the truth, Making falsehoods or distorting the truth,

spreading rumors, destroying the order of spreading rumors, destroying the order of society;society;

• Promoting…sexually suggestive material, Promoting…sexually suggestive material, gambling, violence, murder;”gambling, violence, murder;”

• Terrorism or inciting others to criminal activity, Terrorism or inciting others to criminal activity, openly insulting other people or distorting the openly insulting other people or distorting the truth to slander people;truth to slander people;

• Injuring the reputation of state organs;Injuring the reputation of state organs;• Other activities against the Constitution, laws, Other activities against the Constitution, laws,

or administrative regulations.”or administrative regulations.”

The People’s Republic of The People’s Republic of ChinaChina

Some controversial Some controversial provisions of the CDA:provisions of the CDA:

• It is illegal to: “[initiate] the It is illegal to: “[initiate] the transmission of, any comment, transmission of, any comment, request, suggestion, proposal, request, suggestion, proposal, image, or other communication image, or other communication which is obscene or indecent which is obscene or indecent knowing that the recipient of the knowing that the recipient of the communication is under 18 years communication is under 18 years of age regardless of whether the of age regardless of whether the maker of such communication maker of such communication placed the call or initiated the placed the call or initiated the communication;”communication;”

• It is illegal to: “[use] an interactive It is illegal to: “[use] an interactive computer service to send to a specific computer service to send to a specific person or persons under 18 years of age, person or persons under 18 years of age, or [use] any interactive computer service or [use] any interactive computer service to display in a manner available to a to display in a manner available to a person under 18 years of age, any person under 18 years of age, any comment, request suggestion, proposal, comment, request suggestion, proposal, image, or other communication that, in image, or other communication that, in context, depicts or describes, in terms context, depicts or describes, in terms patently offensive as measured by patently offensive as measured by contemporary community standards, contemporary community standards, sexual or excretory activities or organs, sexual or excretory activities or organs, regardless of whether the user of such regardless of whether the user of such service placed the call or initiated the service placed the call or initiated the communication” communication”

RENO, ATTORNEY GENERAL OF RENO, ATTORNEY GENERAL OF THE UNITED STATES, et al. v. THE UNITED STATES, et al. v. AMERICAN CIVIL LIBERTIES AMERICAN CIVIL LIBERTIES

UNION et alUNION et al

The Supreme Court case that The Supreme Court case that decided that the CDA was decided that the CDA was unconstitutional.unconstitutional.

The primary purpose of the The primary purpose of the CDA:CDA:

To protect minors from viewing certain To protect minors from viewing certain types of content which is legal for types of content which is legal for adults but which has been deemed adults but which has been deemed harmful to children and teenagers.harmful to children and teenagers.

Reasons why the CDA was struck Reasons why the CDA was struck down:down:

• The Internet is protected in a way that radio is The Internet is protected in a way that radio is not, because it is not considered “invasive.”not, because it is not considered “invasive.”

• It was vague, because “patently offensive” and It was vague, because “patently offensive” and “indecent” are subjective terms, and undefined “indecent” are subjective terms, and undefined in a legal sense. (Unlike “obscenity.”)in a legal sense. (Unlike “obscenity.”)

• Internet forums are so “open” that it is almost Internet forums are so “open” that it is almost impossible for adults to avoid communicating in impossible for adults to avoid communicating in such a way that minors may see it. This would such a way that minors may see it. This would restrict adults’ ability to communicate.restrict adults’ ability to communicate.

• Much useful and socially redeeming information Much useful and socially redeeming information would have been restricted.would have been restricted.

• Parents could not determine what their children Parents could not determine what their children may see.may see.

Ethical concerns of the CDA:Ethical concerns of the CDA:

• The CDA presumes that being exposed to The CDA presumes that being exposed to certain types of information is harmful.certain types of information is harmful.

• It also presumes that certain types of It also presumes that certain types of information that are not harmful to adults are information that are not harmful to adults are harmful to minors.harmful to minors.

• Laws governing broadcast and print media Laws governing broadcast and print media presume that making it easy for people to presume that making it easy for people to accidentally come into contact with “harmful” accidentally come into contact with “harmful” information is unethical.information is unethical.

• The CDA presumes that it is easy to The CDA presumes that it is easy to accidentally come into contact with “harmful” accidentally come into contact with “harmful” material on the Internet.material on the Internet.

• The CDA also presumes that it is unethical for The CDA also presumes that it is unethical for minors or their parents to be allowed to decide minors or their parents to be allowed to decide what information is harmful for them to what information is harmful for them to intentionally view.intentionally view.

• Also presumes that some information is harmful Also presumes that some information is harmful to all, and some is only harmful to minors.to all, and some is only harmful to minors.

• Presumes that the Internet is not a sufficiently Presumes that the Internet is not a sufficiently invasive medium that the presence of material invasive medium that the presence of material that is only “harmful to minors” is unethical due that is only “harmful to minors” is unethical due to the possibility of accidental exposure.to the possibility of accidental exposure.

• It is more unethical to restrict adults from It is more unethical to restrict adults from communicating freely where minors may be communicating freely where minors may be present than it is to accidentally expose minors present than it is to accidentally expose minors to material that may be harmful to them.to material that may be harmful to them.

• It is ethical to allow parents to decide what It is ethical to allow parents to decide what material is harmful to their children.material is harmful to their children.

The Supreme Court/Constitution:The Supreme Court/Constitution:

• The CDA severely restricted adults’ ability to The CDA severely restricted adults’ ability to provide and to willingly and deliberately provide and to willingly and deliberately consume content that has been deemed not consume content that has been deemed not harmful to them. This was unethical because it harmful to them. This was unethical because it greatly sacrificed the good of the individual to greatly sacrificed the good of the individual to achieve a comparatively small (and debatable) achieve a comparatively small (and debatable) gain in the good of society.gain in the good of society.

• For a government to even define what For a government to even define what information is inherently harmful or not harmful information is inherently harmful or not harmful for people to expose themselves to is for people to expose themselves to is dangerous and unethical, because it presumes dangerous and unethical, because it presumes a monopoly on truth. It is a slippery slope from a monopoly on truth. It is a slippery slope from ruling that “it is harmful for you to view ruling that “it is harmful for you to view pornography” to ruling that “it is harmful for pornography” to ruling that “it is harmful for you to view criticism of the government.” you to view criticism of the government.”

My Opinion:My Opinion:

• It is ethical to restrict a few types of speech It is ethical to restrict a few types of speech because they are materially harmful:because they are materially harmful:• Child PornographyChild Pornography• LibelLibel• Threats of violence, aka. “fighting words.”Threats of violence, aka. “fighting words.”• Protected information (intellectual property, Protected information (intellectual property,

state secrets)state secrets)

• ““Indecent,” “patently offensive” and even Indecent,” “patently offensive” and even “obscene” are subjective terms, and the ability “obscene” are subjective terms, and the ability to determine whether it is harmful for a person to determine whether it is harmful for a person to view such material should lie solely with that to view such material should lie solely with that person. To do otherwise is to restrict that person. To do otherwise is to restrict that person’s autonomy with no verifiable benefit to person’s autonomy with no verifiable benefit to the person or to society.the person or to society.

• It is sometimes unethical to intentionally It is sometimes unethical to intentionally expose others to material that upsets (or expose others to material that upsets (or “harms”) them against their will, but it should “harms”) them against their will, but it should not be illegal, as no objective definition of what not be illegal, as no objective definition of what is upsetting or offensive can exist in a pluralistic is upsetting or offensive can exist in a pluralistic society.society.

• Even if it is illegal and/or unethical to expose Even if it is illegal and/or unethical to expose others to such material against their will, the others to such material against their will, the nature of the Internet is such that the vast nature of the Internet is such that the vast majority of exposure to information is majority of exposure to information is voluntary. voluntary.

In summary…In summary…

• The CDA would have greatly restricted legal speech in its effort to restrict illegal speech. (http://www.cdt.org/policy/freespeech/12_21.cda.html)

• The Supreme Court struck down the CDA…in part due to the unique nature of the Internet. (http://www.ciec.org/SC_appeal/syllabus.shtml)

• The CDA was not ethical because it greatly sacrificed the rights of the individual for no correspondingly great gain for society.

• Question if it is ethical for the government to determine that viewing certain material is somehow intrinsically harmful, even if the existence or distribution of the information is not materially harmful.