Class Notes for September 27, 2007
Class 7 - Free Speech
What is “Free Speech”?
- First Amendment to the U.S. Constitution states: “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.”
1st Amendment Aspects:
- Speech
- Expressive conduct
- Decision to remain anonymous or use pseudonym
1st Amendment:
- Applies to the government’s restriction on speech (public and quasi-public institutions).
- Gov’t restrictions must relate to legitimate purpose and least-restrictive means.
- Very sensitive to context.
Protected Speech Spectrum:
| Most valued | Least valued | ||
| Political Speech / News reports | Creative Works | Commercial Speech | Non-obscene sexually explicit |
| Campaign Finance Rules / Libel | Libel / Copyright | Advertising Laws/ CAN SPAM Act | FCC Regs. |
Non-protected speech
- Fighting Words
- Libel and slander
- Obscenity
Communication Technologies
- Print media - strongest protection
- Broadcast (tv and radio) - highly regulated (eg Janet Jackson)
- Common carriers - cannot restrict content carried; no liability.
Obscenity & pornography
- Pornographic works are “ok” unless they “cross the line” into “obscenity”.
- Obscenity =
Sexual or excretory acts whose depiction are prohibited (by state or federal law)
Patently offensive, appealing to prurient interest per the “community standard”
No serious literary, artistic, social, political or scientific value
Obscenity & cyberspace:
Communications Decency Act (CDA):
- Applies to Interstate transmissions.
- Prohibition on “obscenity” is ok under 1st Amendment (1999).
- Prohibition on “indecent” and “patently offensive” not Ok under 1st Amendment (1997).
Child Online Protection Act (COPA)
- Would have criminalized posting for "commercial purposes," of World Wide Web content that is "harmful to minors” (with exception for screening by credit card or other techniques).
- US Supreme Court held “probably violates 1st Amendment - remanded (June 2004). USDC ED PA ruled unconstitutional (March 2007).
Filtering Websites
Childrens Internet Protection Act - requires libraries that receive federal funds to install filtering software to block obscenity and materials harmful to minors.
- Problem - filtering software “over-filters”
- Ok restriction, so long as adult can ask to have filtering “disabled” (June 2003)