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

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

3. 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

4. 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

5. 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”

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

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

16. 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

17. Emerging Issues Internet journalists Public figures privacy
Russia hacking investigation

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