The First Amendment and the Internet Lecture 27 Chapter 8 The First Amendment and the Internet

This Lecture We move to a Chapter devoted to issues involving the Internet Pages 363-378 Reno v. ACLU (1997) United States v. Williams (2008) This will finish the First Amendment materials after the next lecture!

How has the Internet changed things? It is more difficult to regulate Websites may originate from other countries It can move between counties and states One cannot limit the numbers of websites Anybody can set up a website for a small fee Makes getting information easier, but there is a dark side Pornography (sometimes illegal) Children can access things they might not have been able to otherwise Harassment trolls Fake News WikiLeaks, Russian interference in election Fraud, Stealing of information, Hacking

Reno v. ACLU- II Background Challenge to the Communications Decency Act of 1996 Designed to control minor’s access to sexually explicit material sent electronically Many organizations, including the ACLU challenged it 1) Prohibited online communication to minors if indecent or obscene, regardless of whether the user placed the call or initiated the communication 2) Patently offensive provision to those under the age of 18

Reno v. ACLU- III Arguments For the Janet Reno and the United States FCC v. Pacifica (1978) allows for this regulation Miller v. California (1973) set the obscenity standard which was used The impositions on adult-adult communication are justified no less restrictive means For the ACLU and other groups This infringes on protected speech Law not narrowly tailored to protecting minors The law is unconstitutionally vague by using “incident” and “patently offensive”

Reno v. ACLU- IV Stevens, J. for a 7-2 Court The statute fails on multiple points First Amendment is going to get print media level protections Overbreadth Does not distinguish between indecent on obscene Restricts protected speech Patently offensive a question of fact No way to verify if persons are minors This takes in way to much in breadth Vagueness Fails to clearly define indecent Is content based chilling effect on free speech Miller was limited to sexual activities, but this prohibits more

Reno v. ACLU- V O’Connor, J. joined by Rehnquist, C.J. concurring in judgment and dissenting in part Create different domains on the internet One for adults (xxx) and one for kids Internet zoning Would invalidate the statute on more narrow grounds

Ashcroft v. ACLU I (2002) Ashcroft v. ACLU I (2002) Congress tries again in 1998 changes things to “harmful to minors” Relies on the Miller test Uses a nationwide standard Statute upheld in an opinion by Thomas, J. Not facially invalid Limited ruling as to this point

Ashcroft v. ACLU II (2004) Ashcroft v. ACLU II (2004) Court for a 5-4 Court, Kennedy, J. invalidates it Did not meet the Least Restrictive Means test History of the law This case upheld a preliminary injunction against COPA Never enforced Cert denied on the preliminary injunction from the Third Circuit

United States v. American Library Association (2003) 6-3 ruling by Rehnquist, C.J. upheld a law prohibiting federal funds from places that did not use filtering software to ban nude images But did not go as far as to block those libraries that did not do so for adults

Ashcroft v. Free Speech Coalition (2002) Another challenge to the CPPA Applied to “virtual child pornography” too Court overturns this provision Should be limited to actual not depictions or descriptions Mentions Romeo and Juliet Says it goes too far Computer images not a crime

United States v. Williams (2008) Background Congress responds to Ashcroft v. Free Speech Coalition Only applied to real children The PROTECT Act of 2003 Law prohibited the “pandering” of child pornography Offering or requesting to transfer, sell, deliver, or trade the items 11th Circuit reversed on vagueness and overbreadth grounds

United States v. Williams- II Argument For the United States Act was designed to correct defects the Court found in Ashcroft v. Free Speech Coalition Law applies only to unprotected speech Law is particularly described as to the prohibited conduct For Williams Would criminalize those that brag about child pornography, not those that have it Targets protected speech Is vague does not put those on notice of violating conduct

United States v. Williams- III Scalia, for a 7-2 majority Overbreadth Offers of child pornography not protected speech Fraudulent offers also included Does not refer to Hollywood or Amazon simulated vs. real Only applies when the recipient thinks it involves real children Vagueness The Statute is clear Child pornography is a clear interest on the internet to prohibit

United States v. Williams- IV Stevens, J. joined by Breyer, concurring SLAPS test does not apply to this conduct

United States v. Williams- V Souter, J. joined by Ginsburg, J. dissenting Could involve fakeness They say the court was essentially overruling Ferber and Free Speech Coalition They think the Court went too far as to where they think only to prosecute real child pornography

Emerging Issues Internet journalists Public figures privacy Russia hacking investigation

Next Lecture Chapter 9 Pages 379-389 Right to Bear Arms District of Columbia v. Heller (2008) Does it apply to States?