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Feature - About the Net
Law and the Net: Freedom of Speech

By Dudette
(October 11, 1998)

Can you say anything that you want on the Internet? Can WebTV or another online service remove your access to newsgroups that it considers unsuitable? Can your online service be cancelled because of what you say, or your website taken down because of what you've posted? Can you be sued or even go to jail because of things you've said by email or posted on the Net?


How do you feel about it? It's our Questtion of the Week

The answer to all of these questions is a qualified "yes." If this answer is confusing, the reason is that the questions above aren't just "can what you say be censored?" There are a number of rights and relationships in these questions; your constitutional rights are not universal and also don't apply to all situations. In this part of Law and the Net, we'll take a look at the issues that these questions raise.

Your Constitutional Right to Free Speech

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.

Does your First Amendment right to free speech apply on the Internet? The short answer is "Yes!" and it was issued in a unanimous ruling by the US Supreme Court on June 26, 1997. At issue was the constitutionality of two provisions in the Communications Decency Act that were intended to protect minors from "indecent" and "patently offensive" material on the Internet. In the Reno v. ACLU decision, the Supreme Court upheld a lower court's ruling that the CDA was an unconstitutional infringement on the First Amendment right of free speech. The decision quoted the lower court judge's description of the Internet as "the most participatory form of mass speech yet developed," and that is entitled to "the highest protection from governmental intrusion."

Now, before you pick up your keyboard and head off to enjoy your rights, you should learn a bit more about just where your right to free speech applies:

1. The First Amendment Applies ONLY to Government Restriction

Note that the First Amendment reads "Congress shall make no law ...." The Fourteenth Amendment, which says "No State shall... deny any person ... liberty... without due process of law," has been interpreted to apply the protections of the First Amendment equally to state governments. But there is nothing here that requires a private party -- Internet bulletin board, magazine, employer, or ISP -- to grant you freedom of speech within their area of control. Only "state action" -- that is, action of the government -- is covered by the First Amendment, although some state constitutions and laws extend the privilege to cover some private entities.

And, even so, the government has certain leeway, depending on where and how it is acting. Where it acts as a sovereign, that is, in its capacity as government, lawmaker or regulator, it has the least power to limit speech. But if you're a government employee, you could be fired for telling your boss he's full of **** and it's unlikely to be ruled unconstitutional. If the government is subsidizing an art exhibit, it has no requirement to let anyone put up anything that they want to call art.

2. Some Speech Is NOT Protected

Even when the government is acting as sovereign, there are some classes of speech that the courts have ruled "Constitutionally Valueless" and therefore lacking in the free speech protections. These include:
  • False statements of fact said by people who know the statements are false (or who show reckless disregard of the possibility of falsehood) -- more about this below.
  • Obscenity.
  • Child pornography.
  • Statements that are intended to, and likely to, incite more or less immediate lawless conduct.
  • Threats.
  • Criminal solicitation or conspiracy.
Speech that is not obscene but quite sexually explicit also has some protection, but in some respects not as much protection as "fully protected" speech. Avoid engaging in this with someone who didn't specifically invite it, if you expect to use "freedom of speech" as your defense. Commercial speech is unprotected if it is false and/or misleading, and may also be unprotected in other cases.

WebTV User Alert!! Child pornography is constitutionally UNPROTECTED, and you can go to jail for distributing it or even possessing it. In this past week, we have seen child pornography posted in a Usenet group by a WebTV user, and have seen a number of WebTV users in the same group encouraging computer users to post child pornography there. Not only are these users at risk of losing their accounts if WebTV ever decides to take their Terms of Service seriously -- they are at risk of more serious consequences as well!

3. Your Rights End Where Mine Begin

Your offensive or obnoxious speech may be constitutionally protected, but what about harrassment, defamation and libel?

In the case of harrassment by email, it is likely that the government can restrict your speech if you continue to send email to someone who has told you that they want no more from you. Although it is a battle still to really be fought online (but is related to spam), the case of Rowan v. Post Office Department held that such a ban is constitutional for "real" mail. As we noted in our last issue, the courts generally follow the "real world" precedents where there is a close analogue to the cyber world.

Defamation and libel are two other areas where the right of free speech may be limited. You'll remember that an UNprotected speech is "false statements of fact said by people who know the statements are false (or who show reckless disregard of the possibility of falsehood)."

Libel is one of these forms of unprotected speech, and contains three elements in addition to known or negligent falsehood:
  1. The statement is made to someone else in writing (it's slander if it's in speech);
  2. It must be the type that affects reputation; and,
  3. It must actually affect the reputation (in other words, there must be damage).
So, if you tell me in email "you're a crook," it's not libel because the statement wasn't made to a third person (although I could demand that you stop mailing to me and take action against you if you continued). If you tell my mother that I'm a crook, she's known me too long and she's not going to believe you, so although it is the type of speech that could affect reputation, it's not going to. (Be careful, though -- she's a lawyer.) If you tell someone, "I don't think much of her writing," that's clearly a statement of your opinion, not a false statement of fact.

On the other hand, if you make the statement "she is a crook" (or even, "in my opinion, she is a crook") to someone else or post it in a public place and it affects my reputation, it is libel. In such a case, you won't go to jail, but you may very well go to court -- libel is a tort, not a crime.

The defense against libel is proving that the statement is true. A common myth on the Net is that we are all "public figures" if we are visible on the Net, and consequently the laws of libel do not apply. It is more difficult for a public figure to prevail in a libel case because there is a certain right of public comment, and also because they have more access to the media to defend themselves. However, even that does not mean that they cannot win (as the National Enquirer found in an educational experience that cost it several million dollars), and the courts are unlikely to equate each of us with Michael Jackson and President Clinton just because we post on the Net.

Still, there is a tension between your right to express yourself and others' rights not to be libelled. In Washington State just this week, a judge lifted a preliminary injunction against a cyber-protester who had attacked credit reporting agencies in his website and had posted managers' names and maps to their homes. A word of caution -- the actual case is still to come to trial; the judge merely ruled that the defamation had to be proven before he would stifle the protester's speech.

Free Speech v. the Private Sector

Even though the government may not have the right to limit your speech, except in the areas we've discussed, that doesn't mean that others don't.

You are on the Net by virtue of having access provided through an Internet Service Provider, which is a private, non-governmental arrangement. An ISP can impose Terms of Service or an Acceptable Use Policy of its own, which are the terms under which it is willing to serve you. This is a private contract between two parties, and your First Amendment rights do not mean that they have to provide service to you if you wish to speak in a way that violate those terms. As of this writing, it still is legal in most states to send mass commercial email (spam), but virtually every major ISP will terminate users who do.

Likewise, you have First Amendment rights for the material that you post on your webpage, but many web hosts have restrictions on the types of sites that they are willing to host. The government may not have the right to restrict you from posting your KKK site, but that does not mean that any web host has to sell or give you space for it.

What Does This Mean To You?

We've seen that, although we have the right of free speech, this right is not absolute in all cases, and it also applies to government limitations on speech, not generally to the private sector.

How is this different in the "cyber world" from the "real world?" Not very much. The biggest differences are the anonymity of the Internet (if you choose it to be) and the fact that your speech can be seen by more people. Just as in "real life," there is a tension between the rights of one person and the rights of others, and the requirement that we co-exist in a society means that none of our freedoms are absolute in all circumstances. That's why we have to have courts, to help us sort out those tensions, rights and freedoms.

Educate Yourself!

The Bill of Rights

First Amendment Cyber-Tribune

Reno v. ACLU - Supreme Court Rules Against CDA

The Senate Censorship Amendment to the Internet Tax Freedom Act (approved by the US Senate, Oct. 7, 1998)

The Child Online Protection Act (reported and send to the US House, October 5, 1998)
House Report on the Child Online Protection Act that accompanies and explains the bill.

ACLU: Court Upholds Free Speech of Cyber-Protester

Internet Free Expression Alliance

The Other Articles in "Law and the Net"

Copyright Basics. What's copyrighted? What's not? How do you know what you can use and what will get you a nasty letter -- or more?

Dangerous Ground. Where you're likely to get into copyright trouble is when you try to push the edge. This article explains how to stay away from the dangerous ground.

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