A Gift of Fire

Chapter 3:
Freedom of Speech

Slides prepared by Cyndi Chie and Sarah Frye. Fourth edition revisions by Sharon Gray.
What We Will Cover
 Communication Paradigms
 Controlling Speech
 Posting, Selling, and Leaking Sensitive Material
 Anonymity
 The Global Net: Censorship and Political
Freedom
 Net Neutrality Regulations or the Market?

Corresponding page number: 133

Communication Paradigms

Congress shall make no law… abridging the

freedom of speech or of the press…

- First Amendment
U.S. Constitution

Corresponding page number: 134-136

Communication Paradigms
 The Internet brought us extraordinary
opportunities for increasing free expression
of ideas, easy and inexpensive
communication between people of different
countries,
 and extraordinary opportunities for access to
many voices and points of view all over the
world.

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Communication Paradigms
 But freedom of speech has always been
restricted to some degree in the United
States and to a large degree in many other
countries.
 In this chapter, we examine how principles of
freedom of speech from earlier media affect
the Internet and how the Internet affects
them.

Corresponding page number:

Communication Paradigms
Regulating communications media
 The traditional three-part framework for First
Amendment protection and government
regulation of communications media are:
 Print media (newspapers, magazines, books)
 Broadcast (television, radio)
 Common carries (telephones, postal system)

Corresponding page number: 134-136

Communication Paradigms
 Print media: it has the strongest First
amendment protection
 Broadcast (television, radio)
 Television and radio are similar to newspapers in their
role of providing news and entertainment, but the
government regulates both the structure of the
broadcasting industry and the content of programs.
 The government grants broadcasting licenses.
 The government has more control over television and
radio content than it has over communication
methods.
 Broadcast material comes into the home and is
difficult to keep from children.

Corresponding page number: 134-136

Communication Paradigms
 Common carries (telephones, postal system)
 It provides a medium of communication (not
content) and must make their service
available to everyone.
 Common carriers had no control over content,
so they had no responsibility for illegal
content passing through.

Corresponding page number: 134-136

Communication Paradigms
Telecommunication Act of 1996
 Changed regulatory structure and removed
artificial legal divisions of service areas and
restrictions on services that telephone
companies can provide.
 No provider or user of interactive computer
services shall be treated as a publisher of any
information provided by another information-
content provider.

Corresponding page number: 137

Communication Paradigms
Free-speech Principles (first amendment, US
constitution)
 Written for offensive and/or controversial speech
and ideas
 Covers spoken and written words, pictures, art, and
other forms of expression of ideas and opinions
 Restriction on the power of government, not
individuals or private businesses
 Publishers do not have to publish material they don’t
like
 Websites may decline specific advertisements. This is
not violating the advertisers freedom of speech.

Corresponding page number: 137-138

Communication Paradigms
Free-speech Principles (cont.)
 Supreme Court principles and guidelines
 Advocating illegal acts is (usually) legal.

 listener has the opportunity and responsibility to

weigh the arguments and decide whether or not
to commit the illegal act.
 Laws with significant ‘chilling effect’ are
unconstitutional
 When a government action or law causes people
to avoid legal speech and publication out of fear
perhaps because a law is vague—the action or law
is said to have a “chilling effect

Corresponding page number: 138

Communication Paradigms
Free-speech Principles (cont.)
 Supreme Court principles and guidelines
 Libel and direct, specific threats are not

protected.
 Inciting violence, in certain circumstances, is

illegal.
 Anonymous speech is protected.

 Some restrictions are allowed on advertising –

‘second class speech’.

Corresponding page number: 138

Controlling Speech
Offensive speech: What is it? What is illegal?
 Answers depend on who you are.
 Most efforts to censor the Internet focus on
pornographic and other sexually explicit
material.
 Different people have different standards

The discussion of right or wrong is beyond our

scope of this course. We are focusing specifically
on new problems and issues related to computer
systems and cyber space.
Corresponding page number: 139
Controlling Speech
What was already illegal?
 Obscenity
 First amendment does not protect obscene
material.
 Three part guideline to determine obscenity:
 Depicts a sexual act against state law
 Depicts these acts in a patently offensive manner
that appeals to immodest/indecent interest as
judged by a reasonable person using community
standards
 Lacks literary, artistic, social, political or scientific
value

Corresponding page number: 140

Controlling Speech
Straining old legal standards
 The definition of “community”
 The definition of “distribution”

Corresponding page number: 140

Controlling Speech
Freedom of speech guidelines
Principles courts use to help determine if censorship
law is constitutional:
 Distinguish speech from action. Advocating
illegal acts is (usually) legal.
 Laws must not chill expression of legal speech.

 Do not reduce adults to reading only what is fit

for children.
 Solve speech problems by least restrictive
means. The courts found that the then newly
developing filtering software was less restrictive
and more desirable than censorship.

Corresponding page number: 142

Controlling Speech
Internet Censorship Laws & Alternatives
 Communications Decency Act of 1996 (CDA)
 Attempted to avoid conflict with First Amendment by
focusing on children
 Made it a crime to make available to anyone under 18
any obscene or indecent communication
 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

Corresponding page number: 141

Controlling Speech
Internet Censorship Laws & Alternatives
 Child Online Protection Act of 1998 (COPA)
 More limited than CDA
 Federal crime for commercial Web sites to make
available to minors material “harmful to minors” as
judged by community standards
 Found to be unconstitutional
 It was too broad
 It would restrict the entire country to the standards of
the most conservative community
 It would have a chilling effect

Corresponding page number: 142

Controlling Speech
Internet Censorship Laws & Alternatives
 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

 Outside of public schools and libraries, the trend of

judicial decisions is to give the Internet First Amendment
protection similar to that of print media, that is, the
highest degree of protection.

Corresponding page number: 142-143

Controlling Speech
Video Games
Interactivity more powerful than passively
watching tv or reading a book.
Children have played cops and robbers for
generations
A California law banned sale or rental of violent
video games to minors.
 In 2011, the Supreme Court of California ruled it
violated the First Amendment.
 ‘disgust not a valid basis for restricting
expression’

Corresponding page number: 143-144

Controlling Speech
Alternatives to censorship
 Filters
 Blocks sites with specific words, phrases or images
 Parental control for sex and violence
 Updated frequently but may still screen out too much
or too little
 Not possible to eliminate all errors
 What should be blocked?

Corresponding page number: 145

Controlling Speech
Alternatives to censorship
 Policies
 Commercial services, online communities, and social
networking sites develop policies to protect
members.
 Video game industry developed rating system that
provides an indication for parents about the amount
of sex, profanity, and violence in a game.

Corresponding page number: 145

Controlling Speech
Discussion Question
 Why is ‘least restrictive means’ important?
 Do you consider the Internet an appropriate
tool for young children? Why or why not?

Corresponding page number: 141-145

Controlling Speech
Spam
 What’s the problem?
 Loosely described as unsolicited bulk email
 Mostly commercial advertisement
 Angers people because of content and the way it’s sent
 It now applies to text messages, tweets, and phone
calls as well.

 Free speech and Spam

 E.g AOL , Intel
 Filters vs. injunctions (court orders)
 Spam may impose a cost on recipients.
 Spam filters do not violate free speech.

Corresponding page number: 148-149

Controlling Speech
Spam (cont.)
 Reducing spam
 Freedom of speech does not require the intended
listener to listen.
 How much discretion should anti spam service have in
deciding whom to include on its list of spammers?
 ‘Gaming’ system by competitors and difference of
opinions.
 Anti-spam Laws
 Controlling the Assault of Non-Solicited Pornography and
Marketing Act (CAN-SPAM Act)
 Targets commercial spam
 Criticized for not banning all spam, legitimized commercial
spam

Corresponding page number: 151

Controlling Speech
Spam (cont.)

Commercial messages must include:

 valid mail header information (that is, not
faking the “From” line to disguise the sender
is prohibited)
 valid return address
 clear and honest subject lines

Corresponding page number: 151

Controlling Speech
Examples of old structures and special interests
being challenged
 Self-help software to assist people in writing
wills, pre-marital agreements and other legal
documents
 Online newsletters for investments
 Reducing prices by selling online and removing
‘middle men’

Corresponding page number: 151

Posting, Selling, and Leaking
Sensitive Material
“Free speech is enhanced by civility.”-Tim O’Reilly

Policies of large companies

 Policy reversals
 Large social impact of a large company and censorship –
similar to government censorship. Should the two be
compared or view as separate.
A Web site with risks
 Site about suicide for terminally ill patients.

Consider potential risks. Consider unintended readers or

users. Consider ways to prevent access by unintended users.
Remember it will be difficult to withdraw material once
released.

Corresponding page number: 153

Posting, Selling, and Leaking
Sensitive Material
 Leaks
 Important to consider ethical arguments of leaking
 Depends on
 type of material
 Show evidence of wrong doing
 Internal discussions and business documents
 Value to society
 Risks to society and individuals
 Examples
 WikiLeaks
 Climategate
 Potentially dangerous leaks
 Releasing a huge mass of documents
 Responsibilities of operators of Web sites for leaks
Corresponding page number: 155-156
Posting, Selling, and Leaking
Sensitive Material
Discussion Question
 Does the value of informing the public of
controversial and sensitive information outweigh
the dangers and risks?

Corresponding page number: 155-156

Anonymity
 The press had a lot in common with the internet
including controversy about anonymity.
 ‘Common Sense’ – started American revolution
and Federalist Papers – adoption of new
constitution
 Opponents of government used anonymity
 In 19th century it was not considered proper for
women to write books – so they used male
pseudonyms or pen names
 Others used it just for fun
Corresponding page number: 159-161
Positive uses of Anonymity
 Considered an honorable tradition of advocacy and
dissent
 A shield from the tyranny of the majority.
 Protect against retaliation and embarrassment
E.g. on internet people talk about personal topics
using handles/aliases or screen names.
 Victims of rape, addicts trying to quit talk without
giving away identity.
 Whistleblowers

 Anonymizing services
 Enable us to surf Web and send email anonymously

 Used by individuals, businesses, law enforcement

agencies, and government intelligence services

Corresponding page number: 159-161

Negative uses of Anonymity
 protects criminal and antisocial activities
 E.g. aids fraud, harassment, extortion,
distribution of child pornography, theft, and
copyright infringement
 Spread false rumors
 Anonymity makes it difficult to track
wrongdoers
 masks illegal surveillance by government
agencies. E.g. CIA

Corresponding page number: 161-162

Anonymity
 Is anonymity protected?
 Secrecy of our identity in cyberspace depends on
the privacy policy of the service providers and
sites we visit and the local laws for internet
 Businesses and organizations can get court orders
to get lists from ISPs
 Many legal issues about anonymity are similar to
those discussed in Chapter 2.
 Some sites prohibit anonymity while others
provide it to encourage open and honest
discussion.
Corresponding page number: 162
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?

Corresponding page number: 159-162

The Global Net: Censorship and
Political Freedom
Tools for communication, tools for oppression
Authoritarian governments have impeded flow of
information and opinion throughout history.
The vibrant communication of the Internet threatens
governments in countries that lack political and cultural
freedom.
It was generally thought that the internet was thought to
protect against censorship and a tool for political freedom.
E.g. emails and fax and Soviet Union, Fb and cellphones in
2011 Arab spring.
Governments have learned and adopted countermeasures
to block flow of information
Corresponding page number: 163-165
The Global Net: Censorship and
Political Freedom
Tools for communication, tools for oppression (cont.)
 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 and block specific sites and content at the
border. E.g. China and Saudi Arabia
 Some countries ban all or certain types of access to the
Internet. E.g. Middle East, China, Turkey, Pakistan

Corresponding page number: 163-165

The Global Net: Censorship and
Political Freedom
Tools for communication, tools for oppression (cont.)
Avoiding censorship: the global nature of the Net allows
restrictions (or barriers) in one country to be circumvented
by using networks in other, less restrictive countries.
Creating censorship: the global nature of the Net makes it
easier for one nation to impose restrictive standards on
others.

Corresponding page number: 163-165

The Global Net: Censorship and
Political Freedom
“The office of communications is ordered to find ways to
ensure that the use of the Internet becomes impossible.
The Ministry for the Promotion of Virtue and Prevention of
Vice is obliged to monitor the order and punish violators.”
- Excerpt from Taliban edict banning Internet use in Afghanistan (2001)

Corresponding page number: 165

The Global Net: Censorship and
Political Freedom
Discussion Question
 Will the Internet and related communication
technologies be tools for increasing political
freedom, or will they give more power to
governments to spy on, control, and restrict
their people?

Corresponding page number: 163-165

The Global Net: Censorship and
Political Freedom
Aiding foreign censors and repressive regimes
 Yahoo and French censorship
 Yahoo, eBay and others make decisions to

comply with foreign laws for business reasons

 Skype and Chinese control
 Chinese government requires modified
version of Skype

Corresponding page number: 165-167

The Global Net: Censorship and
Political Freedom
Aiding foreign censors and repressive regimes
 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

Corresponding page number: 165-167

The Global Net: Censorship and
Political Freedom
Discussion Questions
 When U.S. or other non-Chinese companies set up
branches in China and comply with restrictive laws,
should we view them as providing more access to
information in China than would otherwise exist,
albeit not as much as is technically possible?
 Should we view them as partners in the Chinese
government’s ethically unacceptable restriction on
debate and access to information by its citizens?
 Should we view them as appropriately respecting the
culture and laws of the host country?

Corresponding page number: 165-167

The Global Net: Censorship and
Political Freedom
Discussion Questions
 What impact does the global net have on free
speech?
 Does censorship in other countries have an
impact on free speech in the U.S.?
 How does free speech in ‘free countries’ impact
more restrictive countries?

Corresponding page number: 165-167

The Global Net: Censorship and
Political Freedom
Selling surveillance tools
 Repressive governments intercept citizens’
communications and filter Internet content.
 Companies in Western democracies sell them
the sophisticated tools to do so.

Corresponding page number: 167

The Global Net: Censorship and
Political Freedom
Shutting down communications in free countries
Public safety
In the U.S., the Supreme Court would probably
declare unconstitutional a law that authorized a
government agency to order a private
communications service to shut down.

Corresponding page number: 168

Net Neutrality Regulations or
the Market?
 Net Neutrality
 Refers to a variety of proposals for restrictions
on how telephone and cable companies
interact with their broadband customers and
set fees for services.
 Advocates want gov. to mandate that telecom
companies treat all legal content the same
way.
 Companies that control transmission should
not control content access.

Corresponding page number: 169-171

Net Neutrality Regulations or
the Market?
 Net Neutrality
 Argue for equal treatment of all customers
 Else only large companies and orgs would be able
to afford sending content on internet
 Market
 Flexibility and market incentives will benefit
customers
 “Tiered” service
 Argue that regulations to control will slow
advance of high-speed internet.
 Unethical interference in the free choices of
sellers and buyers.

Corresponding page number: 169-171

Net Neutrality Regulations or
the Market?
Discussion Questions
 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?

Corresponding page number: 169-171