Copyright 1997 Steven L. Worona and Marjorie W. Hodges. This article appeared in CAUSE/EFFECT Volume 20, Number 3, Fall 1997, pp. 4-8. Permission to copy or disseminate all or part of this material is granted provided that the copies are not made or distributed for commercial advantage, and that this copyright information appears as part of the article. To disseminate otherwise or to republish, contact Steven Worona at 607-255-8308 or [email protected].
by Marjorie W. Hodges and Steven L. Worona
In July 1996, a three-judge United States District Court panel in Pennsylvania unanimously declared the Communications Decency Act of 1996 unconstitutional. Specifically, the Court held that this act of the federal government abridged citizens' free-speech rights as protected by the First Amendment. In his written opinion, Judge Stewart Dalzell called the Internet "the most participatory form of mass speech yet developed." He also said the Internet is entitled to "the highest protection from government intrusion." Statements such as these contribute to the widespread belief that anyone can say anything in cyberspace. After all, "It's a free country. I have my First Amendment rights."
Is that true? Does the First Amendment really apply in cyberspace? And just how absolute are our free-speech rights, even in the real world? To answer these questions, we'll explore two key factors:
This extension applies not just to governments, but to government-run institutions, such as public school systems and state colleges and universities. Public institutions of higher education are thus fully constrained by the federal Constitution, including the free-speech requirements of the First Amendment. Private schools, however -- including private colleges and universities -- are not. Even so, many private schools have voluntarily chosen to adopt policies ensuring freedom of speech, and several states have mandated free-speech provisions for private schools within those states.
Application to cyberspace: Institutions that are required to uphold First Amendment free-speech rights generally must uphold these rights in cyberspace as well. For higher education, this means, for example, that public colleges and universities have limited ability to filter incoming or outgoing Web pages or Usenet newsgroups based on content.
When called upon to answer such questions, courts typically ask whether the location is a "public forum," a public place that has public access, such as streets, sidewalks, and parks. As noted in Hague v. CIO (1939), public forums are places that have "immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens and discussing public questions." Under common law tradition, the government could regulate speech in the public domain by time, place, and manner restrictions, but could not deny access. Current Supreme Court doctrine requires that content-neutral restrictions on speech in public forums be "narrowly tailored to a substantial government interest, and leave open ample alternative channels of communication."
Application to cyberspace: Is cyberspace a public forum? The United States District Court for the Western District of Oklahoma addressed this issue in Loving v. Boren (1997), (http://www.jmls.edu/cyber/cases/loving.html). After an elected representative complained that material available in news groups stored on the public university's server violated state law, the university blocked access to some groups. A professor said this violated his free speech rights and filed suit. The court held that the computer systems of public institutions are not inherently public forums and that such institutions could limit servers to officially approved material. This decision would not prevent a public or a private institution from creating a public forum, either intentionally or unintentionally.
Unless that cocktail party was part of a government function, or took place in a state building, or could somehow be considered a public forum, Bill's rights weren't violated. The host's rights to control his own property are not limited by the First Amendment. The First Amendment does not give individuals the right to say whatever they want whenever they want.
Now replace the cocktail party in the above example with a classroom at a private university. Could the university's code of conduct specify expulsion for expressing certain opinions or beliefs? Yes, indeed.
Application to cyberspace: Many private institutions with religious affiliations prohibit blasphemy on campus. These institutions may apply the same restrictions in cyberspace, limiting expression in Web pages, e-mail, Usenet postings, chat rooms, and any other Internet communication.
Even First Amendment absolutists recognize that the government has a legitimate interest in and ability to impose a variety of restraints on speech. As Justice Holmes said, in Schenck v. United States (1919), "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic." The First Amendment addresses "abridging the freedom of speech," but not every restriction of speech is considered an abridgment. The Supreme Court has held that content-based restrictions are constitutional when "they are narrowly tailored to a compelling government interest." This, however, is a very difficult test to pass.
Application to cyberspace: Perhaps because the parties have never met, e-mail and other Internet communications all too frequently break out into "flame wars," with insults, name-calling, and a leap-frog series of escalating invective. Inevitably, one of the combatants will demand that the other's fighting words be suppressed. As noted, however, a crucial aspect of the fighting-words doctrine is a face-to-face confrontation. It is thus highly unlikely that the courts will extend this doctrine to cyberspace, even when Internet videoconferencing is involved.
Application to cyberspace: This is one of the very few instances where a relevant case has been tried and a judgment issued. Jake Baker was a student at the University of Michigan when he was charged under the federal statute quoted above with transmitting threats to injure or kidnap another (http://www.vcilp.org/chron/news/jakebake.htm). The transmissions occurred over the Internet. This case originated with a complaint about a story that Baker posted on the Usenet newsgroup alt.sex.stories describing the rape, mutilation, and murder of a female character to whom Baker had given the same name as one of his classmates. Ultimately, the prosecution relied on e-mail messages between Baker and an individual in Canada.
In granting Baker's motion to quash the indictment, the United States District Court for the Eastern District of Michigan held that in order to qualify as a threat, the statement charged must "contain some language construable as a serious expression of an intent imminently to carry out some injurious act." The judge in this case concluded that the language used by Jake Baker "was only a rather savage and tasteless piece of fiction," and admonished the United States Attorney's office for pursuing the charges.
In the late 1980s, in order to address the perceived increase in incivility on college campuses, many institutions of higher education developed "hate speech" regulations. Hate speech is a term used to describe speech which is uncivil, antagonistic, or derogatory, especially when applied to classes of people. Every such regulation tested by the courts has been found to be unconstitutional.
Application to cyberspace: Sending e-mail is an action, and an individual who knowingly persists in sending unwanted e-mail to another person may well be subject to charges of harassment. It is less clear that repeated unwanted postings to a Usenet newsgroup or to a mailing list can constitute harassment, since the action of sending these messages is not targeted at a specific individual (regardless of the content). Similarly, unwanted or unflattering references to an individual on a Web page are unlikely to constitute harassment, although they may be actionable as defamation.
Application to cyberspace: The recent Supreme Court decision in ACLU v. Reno (1996) established that cyberspace content cannot be limited to only that which would be acceptable to minors. In general, First Amendment protections for adult material have followed that material into cyberspace.
Application to cyberspace: "Slander!" "Libel!" "Defamation!" These cries are sure to be heard in any Internet flame war. The handful of Internet-related cases dealing with complaints of defamation indicate that the law of defamation applies online. An interesting nuance in this area is the claim, made by some, that any individual with a visible presence in cyberspace is a "public figure," with the ability to publicly challenge allegedly defamatory information. As of this date, the courts have refused to accept this argument.
Application to cyberspace: While no Internet-related case law exists in this area, it seems unlikely that communications taking place solely in cyberspace can lead to the "clear and present danger" envisioned by Holmes, let alone meet the narrower standard set forth in Abrams.
Beyond this, it's also important to keep in mind that cyberspace cuts across national borders, and that not all governments care about citizens' free-speech rights. In recent cases, Germany, France, and Canada have attempted to apply speech restrictions on U. S. corporations and citizens. As Tim May has said, "The First Amendment is only a local ordinance in cyberspace."
CAUSE can help. One of the functions of our Web site is to serve as a clearinghouse of valuable information. We've collected the data so that you spend less time searching for it and more time evaluating it and putting it to use.
For example, there are currently more than 60 references to policies related to acceptable/ethical use and two dozen more on access. All you have to do is follow the link below to our online information resources library. You can search the library by keyword or browse through it in a variety of ways.
Take a look. We think you'll be pleased with what you find.
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1 Marjorie W. Hodges and Steven L. Worona, "Legal Underpinnings for Creating Campus Computer Policy," CAUSE/EFFECT, Winter 1996, pp. 5-9.
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Marjorie W. Hodges ([email protected]) is Policy Advisor, Office of Information Technologies at Cornell University, and Director of the Computer Policy and Law Program at Cornell.
Steven L. Worona ([email protected]) is Assistant to the Vice President for Information Technologies at Cornell University, and Director of the Computer Policy and Law Program at Cornell.
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