Thesis: Because first amendment protections and laws protecting Internet Service Providers impede a great deal of government regulation, the best way to ensure minors are protected from improper content online is to empower individuals, companies and organizations to take the intiative to self-regulate.

Citation: Reno v. ACLU 117 S.Ct. 2329. 1997. Cornell Law School. 4 April 2009. <ttp://www.law.cornell.edu/supct/html/96-511.ZO.html>.

This source is a Supreme Court decision that curtailed the federal government's ability to prohibit that could be harmful for children.   The laws in question were provisions of section 223 of the Communications Decency Act of 1996 that prohibit knowingly transmitting "indecent" and "patently offensive" material on the Web to minors.  The Supreme Court ruled that these provisions were unconstitutional, and upheld the ruling of a lower court, because they violated the first and fifth amendments of the Constitution. The court believed the terms "indecent" and "patently offensive" were too broad, and could restrict content that is actually not harmful.  Additionally, the provisions were struck down because the court felt there was no good way to specifically target and identify Internet users under the age of 18, making this law difficult to violate or enforce.  The portions of the law that prohibited knowingly transmitting obscene materials and child pornography to minors were upheld, because obscene content warrants less free-speech protection than indecent content.  In the decision, written by Justice Stevens and agreed to by a large majority of the justices, there was also an overview of the history of the Internet and an explanation as to why cases upholding government laws monitoring commercial interests to protect children did not apply to this case.

Reno v. ACLU relates to my paper because it is a court case imporatnt to the ongoing battle to determine how best to protect children from harmful content online.  If free speech bars the government from protecting children from certain types of potentially harmful content, then government regulation is not going to be the only solution needed to help shield children.   However, since the government can pass laws regulating obscenity and child pornography, this case does demonstrate that there is a place where government regulation could potentially be helpful and useful.  Stevens' decision would support my thesis, because the difficulty he acknowledges in detecting the age of Internet users makes it difficult for any organization to properly filter content. In order for children to be protected from some content, there will need to be intrinsic motivation for indecent websites to self-regulate and to try not to reach children.

 

Citation: Thierer, Adam.  "Parental Controls and Online Child Protection: A Survey of Tools and Minds." Version 3.1. Fall 2008. Progress & Freedom Foundation. 5 April 2009. <http://www.pff.org/parentalcontrols/Parental%20Controls%20&%20Online%20Child%20Protection%20[VERSION%203.1].pdf>

Thierer’s document covers a variety of aspects and issues relating to parental control of children’s media consumption.   Different methods of controls are discussed, including informal rules implemented by parents, ratings systems, filtering and monitoring software, increased media literacy, self-regulation by companies and governmental regulation.  Much of the document relates to media other than the Internet, but the Internet is discussed, particularly when describing different types of filtering programs and the Internet’s relationship to the problems with governmental regulation.  Because no one method of parental controls is completely effective, Thierer concludes that parents take an interdisciplinary approach when regulating their children’s media content, and employ a combination of strategies.  Educational and empowerment and informal strategies have the added bonus of being the least likely to restrict freedom of speech.  There is also a discussion of how to protect children from sexual predators online.  Age verification and extensive data monitoring are seen to be a poor remedies, while the right solution is determined to be “education, empowerment and enforcement.”

             This article, much like some of the other documents, places an importance on efficacy and education as optimal ways to protect children from the dangers of the Internet. The focus of the ineffectiveness of other types of controls relates to questions concern those methods’ constitutionality which supports my theseis. The document is a particularly good source because it is very detailed and thoughrough in its analyses of the types of contols.  This article also helps to better compare and contrast the views of Thierer and Palfrey, who co-authored another source. While they may have disagreed about reforming CDA 230, the two men both supported internal regulations by parents and community members and desires for non-governmental groups to come up with their own strategies concerning controlling content. Thierer is perhaps more skeptical of technology than Palfrey is, and he places more of an emphasis on educating and empowering parents and children about how to optimally use the Internet.

 

Citation: Etzioni, Amitai.  “On Protecting Children from Speech.” Chicago-Kent Law Review. 2004: 3-53. Google Scholar. 5 April 2009. http://lawreview.kentlaw.edu/articles/79-1/Etzioni.pdf

 

            This article discusses and analyses the issues concerning children’s rights to free speech.  According to the author, past court cases care more about how restricting access for children would inadvertently affect adults than they do about how there is a compelling state interest to protect children from harmful speech.  To remedy this, Etzoini thinks Internet access for children and adults should become separate.  Where it is not possible to make a separation, government regulation is needed, because voluntary measures, such as parents choosing to purchase filtering softwares, are generally ineffective.  A review of research studies concludes children can be harmed by viewing objectionable media content, although this has been more definitely proven for violent content than for pornography.  Etzoini also says that as children get older, they should have greater free speech rights, and should have their content restricted less.

 

            The article provides a counterargument to some of the other documents published concerning how children can be protected from harmful content on the Internet. The Supreme Court cases concerning section 223 of the CDA and COPA were struck down in part because it was believed that there was truly no way for to restrict content for children without also inadvertently restricting it for adults.  Etzioni, however, believes there may be ways to separate Internet access based on age. Additionally, this article differs from the arguments made by Thierer, because it  favors governmental regulation of content over self-regulation. Etizoni’s reason for the ineffectiveness of voluntary regulation does however relate to a concept Thierer discusses – that of self efficacy.  If people’s motivation to filter the Internet content of minors, self-regulation could potentially work. The problem right now is that efficacy is too low for people to want to take an initiative and regulate content.

Citation: Ashcroft v. ACLU 542 U.S. 656. 2004. Cornell Law School. 4 April 2009.  <http://www.law.cornell.edu/supct/html/03-218.ZS.html>.

This document is a Supreme Court decision that ruled the Child Online Protection Act (COPA) unconstitutional.  COPA, a law passed by Congress, established a $50,000 fine and six months in prison for knowingly posting content online for commercial purposes that is harmful to minors.  A person could avoid conviction for posting such content by making a concerted effort to have prevented minors from having access to the content.  The justices ruled that COPA was unconstitutional because it restricted some speech protected by the first amendment of the US Constitution.  The definition of content harmful to minors is broader than the definition of obscenity, which is the type of speech not protected by the first amendment.  In the decision, Justice Kennedy also wrote that there were probably more effective alternatives to govermental regulation, such as encouraging parents to use filtering software.  According to the majority opinion, the government is only allowed to restrict free speech as much as it is absolutely necessary to achieve its desired goal, and there was no proof that free-speech had to have been curtailed as much as it was in COPA in order to protect children.

 

            Ashcroft v. ACLU is important because it helped to define the legal restrictions on governmental regulation of Internet content for purposes of protecting children.  This case is similar to Reno v. ACLU in that laws were struck down on first amendment grounds because they restricted types of protected speech.  Congress tried to fix the mistakes it made with the CDA by having COPA apply to material harmful to minors, rather than to indecent material.  However, the Supreme Court still thought that content harmful to minors was too broad a terminology using a strict scrutiny approach to the law. The court case is also relevant to my paper because it explains how the government could legally help regulate Internet content. By suggesting Congress protect children from potentially threatening content by promoting use of filtering software, Kennedy is essentially laying out for Congress what he believes to be the most constitutionally acceptable method of governmental online content-regulation.  Note that by promoting filtering, the government would be indirectly involved with regulation, implying the government cannot fix the problem of youth exposure to harmful content alone.

The purpose of copyright law is to "promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." Such a goal presumably serves the public interest because copyright protection encourages creativity and learning and thus benefits the progression of society. The First Amendment intends to protect freedom of expression and freedom of speech, including political speech. These rights also serve the public interest, as political speech allows the public to make educated and informed decisions when partaking in the democratic process held so sacred in the United States Constitution. There must be a delicate balance between copyright law and First Amendment rights, as copyright somewhat limits these rights. For example, political campaigns employ copyrighted material in ads, speeches, and videos for the purpose of (free) political speech. It can be argued that to treat such acts of political campaigns as copyright infringement limits the First Amendment right to freedom of speech. If such action of political campaigns is copyright infringement and thus eliminated or censored, it can be said that copyright severely hurts the public interest. When examining the role of copyright, it must then be addressed, does copyright help or harm the public interest?

Celia Goldwag's article in Columbia Law Revew analyzes the clash between copyright law and the First Amendment as well as discussing any implications that this may or may not have on providing special privilages to copyright infringers. The first portion of the paper mentions that because copyright law intends to advance public welfare, four limits on copyright exist to curtail most conflictions with First Amendment rights. These include limited duration of protection, authorship requirements, distinction between ideas and expression, and the fair use doctrine. The distinction betwee ideas and expression satisfies most concerns with First Amendment rights because access to ideas, not expressions, is what satisfies the purpose of the First Amendment. When expression is necessary for the purpose of the work, however, the fair use doctrine can come to the defense of those charged with infringement. The article then goes on to discuss the narrow circumstance in which these four precautions do not stop all collisions between copyright and the First Amendment, namely when a work's idea is "wedded" to the protected expression, such as graphic images. Goldwag sites a case (Rosemont Enterprises, Inc. v. Random House, Inc.) in which the court ruled that copied articles were not infringement because that would deprive the public of dissemination of important facts of public interest. She then discusses how that decision was applied in Time, Inc. v. Bernard Geis Associates (discussed elsewhere). While "commentators have read Rosemont and Geis as establishing a public interest-based first amendment privilege to copyright infringement," this article takes an opposing view. It holds that such decisions were improperly made and such a privilege would not be effective. A general privilege and exemption from infringement of such cases where the First Amendment is at stake would undermine the intent of copyright law, as "every thing is imbued with public interest to some degree; any privilege, therefore, would be either totally dependent on the subjective values of the judiciary, or so broad in scope that the mere fact of infringement would be proof of public interest." The article continues to say that regardless of if a privilege was even possible to construe, the First Amendment's conflictions with copyright does not demand it. The area of contention is so narrow that all that is necessary to solve this problem is to balance society's interests- public interest in free expression, receiving information, protecting individuals' rights to create and express themselves- with the interest of copyright protection. The article holds that when a conflict does occur, no privilege is necessary as long as the infringer can still print the material without injunction while the copyright owner receives compensatory damages and nothing else.

The opinion held in this article applies to the question of how copyright effects the public interest because while one side may argue that in some cases, the First Amendment is violated and thus harms the public interest, this opposing view holds that copyright law in itself resolves such conflicts, as its intent is already to protect the public interest. No other measures, according to this view, are necessary. The article contributes support to the notion that copyright itrinsically serves the public interest, thus providing one answer to the question of this project.

This article discusses the development of the DMCA and the reasons it was drafted. The author describes in depth the protection guaranteed by the Safe Harbor law before he begins to describe the development of the DMCA. Because I have discussed Safe Harbor elsewhere, I will focus on the part of the article detailing the creation of the DMCA, beginning in section C. In 1993, President Clinton created a task force designed to “fine tune” copyright laws to make them relevant in the digital world. A preliminary report ruled that ISPs be held wholly liable for infringement. ISPs immediately retaliated, claiming that under this law they would be liable whenever their users sent infringing works across their networks. They also argued that the law would require them to monitor their users’ transmissions while trying to detect copyrighted material, thus violating their users’ First Amendment Rights. Representative Rick Boucher argued that “Congress should provide ISPs with an incentive to invest in the development of computer networks without fear of litigation.” ISPs rationalized that they should only be liable if they have knowledge of the infringements. Copyright holders, however, argued that giving ISPs freedom from liability would encourage them to purposefully allow infringement on their servers. Because of the stark contrasts in opinion between the groups, a decision was not reached immediately. After months of negotiations between ISPS and Copyright Holders, the Online Copyright Infringement Liability Act was introduced in February 1997, which sought to protect ISPs from Direct Liability and monetary damages if they were not aware of “information indicating that the material is infringing.” In House Bill 3209, the Senate created the “red-flag test” for ISPs to use to determine infringement. ISPs did not have to monitor for infringement, but if they became aware of a “red-flag,” they would lose Safe Harbor protection unless they removed the content immediately.
This article is very important for my paper because it addresses the attitudes of both ISPs and Copyright Holders before the creation of the DMCA. Without the DMCA in place, both these groups were forced to come up with their own arguments to defend themselves, something ISPs are much less likely to do now that they can simply hide behind the Safe Harbor clause of the DMCA. The interesting aspect of this article, however, is that many, if not all, of the concerns of ISPs and Copyright Holders made their way into the finalized version of the DMCA. ISPs, such as Youtube today, were worried that they would violate their users’ rights if forced to monitor for copyright violations. Thus, the DMCA was written so that the burden fell on Copyright Holders to identify infringing material and report it to the ISPs. Similarly, the Copyright Holders were worried ISPs would turn a blind eye towards infringement, so the DMCA requires ISPs to remove infringing material at the request of the Holder. Thus, it is clear that the DMCA was created to appease both ISPs and Copyright Holders.

Francione's article in the University of Pennsylvania Law Review discusses infringment and fair use of copyrightable or noncopyrightable factual information and uses "The Nation" case, which went through multiple appeals and reversed decisions, as evidence. The Nation case (Harper & Row, Publishers, Inc., Et Al. v. Nation Enterprises Et Al) involves The Nation's publication of Gerald Ford's then unpublished manuscripts, the rights of which were owned by Time. Originally, The Nation's publication of the material was ruled as copyright infringement, but in an appeal, the decision was reversed. The use was seen as fair because it disseminated factual information of a political figure to the public. The Supreme Court, however, then reversed that decision. Until this case, fair use was seen as a "cure all" when it came to factual information and copyright infringement claims, but the Supreme Court "[truncated] substantially the fair use defense." Francione examines the approaches taken to reach the different decisions in this case. He denounces the "totality approach," which acknowledges that ideas and facts cannot be copyrighted but, when integrated with copyrightable forms of expression, the sum of the work is transformed into protectable material. He believes that the Supreme Court's final decision limits the fair use doctrine, which is a component of the law necessary to protect the First Amendment in order to "ensure the continued broad dissemination of factual works."

The Nation case and its analysis relates to the topic of copyright and the public interest because it sheds light on different opinions of how much consideration should be given to a work that includes information of note to the public. The original decision rejected the defense that the publication was was protected by the First Amendment. Rather, since the heart of the work was taken for commercial use and thus hurt the copyright owner's market, this was not fair use. When looked at in totality with the rest of the work, copyright laws did apply, despite the presence of factual information. The court of appeals, however, focused on the distinction between facts/ideas and expression, only the latter of which is protected by copyright. The court saw First Amendment values as crucial because The Nation's article included information on "political events of major significance, involving a former President of the United States. The paraphrasings concern the very essence of news and history." The court also rejected the original "totality approach." Although the court acknowledged that the work was for profit, it "noted that profit was 'legally irrellevant' when public benefit was involved." Clearly, this decision implies that when works benefit the public interest, the need to distribute such information trumps the owners' copyright benefits. The court in this case, in addition to the article's author, believes that serving the public interest is of utmost importance and in order for copyright law to do so, the fair use doctrine must be interpreted widely. The Supreme Court, however, reversed this decision and focused on the unpublished nature of the work. Copyright owners cannot suppress facts, but the First Amendment also protects the right not to speak publically, and thus fair use of unpublished works should be strictly defined. The Court rejects that information of public interest should widen the scope of fair use because doing so would "destroy any expectation of copyright protection in the work of a public figure." The dissenting opinion notes that such a constricted interpretation of fair use hurts the goals to promote science and the arts and to protect the First Amendment. Examination and analysis of this case highlights two sides of the argument concerning copyright's role in serving the public interest.

In this article, Neil Turkewitz attacks figures such as Lawrence Lessig, who argue that copyright is a "special interest" and therefore hurts the public interest. Turkewitz claims that the belief that "the public's interest should triumph over the private" serves as "moral comfort" for those who steal intellectual property. In such an argument, Turkewitz interprets the opposing side's definition of the public interest as the ability to easily and cheaply appropriate copyrighted material. He corrects this misinterpretation and claims that the public actually has a primary interest in ensuring the production and distribution of copyrighted works so that such accessible works can even exist. According to this article, copyright protection is how we serve this public interest. Copyright protection furthers the public interest by ensuring the "promotion and development of the arts and sciences." Turkewitz does admit, however, that the system can be abused, although at present, it is the most effective system for "fostering creativity and democratizing cultural production and access thereto." Further, Turkewitz raises the issue of fair use as a protection against copyright laws infringing upon the First Amendment's right to free speech. He agrees that there must be limits of copyright to ensure protection of the First Amendment, but he argues that making unauthorized copies of copyrighted materials merely for personal use is not an extension of fair use and in no way involves free speech or the public interest. According to this article, implementing fair use as a defence against copyright infringment does not do anything to further protect the First Amendment or benefit the public interest.

This article directly relates to the issue of copyright and its impact on serving the public interest. Turkewitz's view directly combats Lessig's view in "Copyright and Politics Don't Mix," in that Turkewitz sees copyright as helping the public interest while Lessig sees it as a harm. The problem, however, is that they may be using dissimilar definitions of "public interest." Lessig argues that the public is entitled to read about, listen to, etc. information regarding governmental affairs and, thus, restricting such information because of copyright is detrimental to the public interest. On the other hand, Turkewitz argues that the public is entitled to access creative works, but that copyright protection ensures the development of such works and thus is necessary to ensure such access. While Turkewitz directly refutes Lessig's opinions, it seems as though he is refuting an opinion in a different realm of the public interest. The article, however, reveals another side to the debate of whether copyright serves the public interest.

This article focuses on trademark law opposed to copyright law. While trademark and copyright are distinct, the argument for the protection of one has significant bearing on the argument for the protection of the other. Since this article argues against the protection of trademarks in political speech, it will have an impact on the topic of copyright in political speech, which contributes to the larger picture of copyright and the public interest.

Smith argues that the First Amendment should protect the use of trademarks in political campaigns. Trademark owners argue that use of slogans diminish the product's selling power by way of multiple associations. While such an argument is valid in holding a commercial organization responsible for infringment, it does not apply to political campaigns. This article holds that "the First Amendment should shield politicians' use of commercial slogans in speech that promotes their candidacies or conveys their positions on issues of public importance." In the discussion of campaign speech, Smith notes that the Supreme Court consistently supports the First Amendment's purpose to protect "free discussion of governmental affairs," which includes discussion of candidates. She also notes that political advertisements cannot be censored. Smith acknowledges the view that "the First Amendment does not protect all political speech; the theft of or trespass onto the mark constitutes a harm that should trump First Amendment protection even of political speakers; and a strong public interest in protecting trademarks exists." She rebuts this, however, by arguing that candidate speech deserves the most protection because it is imperative to the democratic process of self government. The article's ultimate conclusion is clear; trademark law trumps First Amendment protection if commercial use of a mark causes confusion or deception in the market, but First Amendment rights win when a mark is used for what should be highly valued and protected political speech.

As mentioned above, this article deals with trademark law opposed to copyright law. However, the argument against trademark law trumping First Amendment rights can transfer to the realm of copyright. It provides strong affirmative support for the position that copyright law should serve the public interest. This line of support focuses on the specific level of political campaigns, through which the public receives important information and can then partake in self government, a highly valued Constitutional right. Protecting speech, and limiting copyright, in such a realm as politics benefits the public interest.

Copyright (c) 1999 Publications Council of the College of William and Mary
William & Mary Bill of Rights Journal
December, 1999
8 Wm. & Mary Bill of Rts. J. 241

The ACLU blog fights for online service providers and content owners to safeguard free speech, as record amounts of individuals are using the "publically accessive but privately owned" arenas to discuss matters of governmental and political importance. The public, then, relies on service providers etc. to protect such free speech, which lately has been threatened for violating a site's terms of use or infringing copyright. The blog lists recent examples, such as YouTube's removal of a video about John McCain that used images necessary for commentary on the canditates support of the war in Iraq. The blog implies that such a video is fair use and as political commentary it should be permitted, but the video was taken down regardless. The authors of the entry, Nicole Ozer and Corynne McSherry, of the Electronic Frontier Foundation (EFF), push content owners and providers to assess whether such speech is fair use before "pulling the plug on political speech." Further, they acknowledge that those who wish to restrict others' free speech can instead exercise their own constitutional rights and respond with more free speech, thus serving the democratic process.

This post in the ACLU blog supports the notion that, at least in some circumstances, copyright protection can hurt the public interest. The constitution protects free speech, and exercising this right in the political realm is certainly protected. To suppress this right hurts not only the First Amendment, but also the public interest. By censoring political speech and opinions, copyright protection does not foster a fully free election in which, throughout the campaign, the public has appropriate access to information necessary to make a decision on who to elect and what policies are best. The policies and the people making them are crucial to the interests on the country, hence the public interest, and, according to this argument, copyright does not serve the public interest by restricting individuals' First Amendment rights.

In order to find this case on Findlaw, just search for it using "J.S. vs...." You can then create a free account. The link to the specific case is: http://caselaw.lp.findlaw.com/data2/pennsylvaniastatecases/supreme/j-111-2001mo.pdf. 

   This case deals with a middle school student who created a Website with defamatory statements about one of his teachers and his school principle. The site, “Teacher Sux,” was created on his home computer but was accessed at school. When it was discovered, it created a stir at school and the teacher he had mentioned, Ms. Fulmer, suffered from stress-related illnesses. The following summer, the school board expelled the student from school for the Website. The student’s parents sued the school board for their decision. The case made it to the Pennsylvania Supreme Court, which ruled that the Website did in fact cause “a material and substantial disruption of the school environment,” making it not protected under the 1^st amendment (even though the speech did not constitute a “true threat”). Because the Website affected the school environment, it did not matter that the student had created it at home.

   I am interested in how this precedent-setting case affects students’ postings on social networking sites of today, like Facebook.com and MySpace.com. Although these are log-in only websites, any one may gain access to them and may do so in a school environment. I wonder then if a student has been expelled for comments made on one of these social networking sites. This case brings to the forefront the issues of privacy and rights when it comes to personal postings on the internet, something that is all the more prevalent with the ubiquity of social networking sites in young people. The case illustrates the unique circumstances of a school environment and shows that the 1st amendment is limited in that space (going all the way back to the "Tinker" case which can also be found on FindLaw). What students put on their Facebook profiles or their friend’s wall can affect their standing at their university if it causes a “material and substantial disruption of the school environment” or portrays the student doing illegal activities. These Websites offer students a unique opportunity for self-expression and identity formation, but there is also the danger in the lack of privacy of internet postings.

     After doing some research online, I found a case where students were suspended from school for writing offensive and vulgar comments about their teacher on each other's facebook.com walls. The school used the "material and substantial disruption" clause to justify why the students were suspended. Apparently, the comments, though posted on Facebook.com from home, caused a disruption in school. The article can be found at: http://www.fox21.com/Global/story.asp?S=6195724&nav=2KPp.

 

 

This site aims to help people "understand the protections that the First Amendment and intellectual property laws give to online activities." A joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, University of San Francisco, University of Maine, George Washington School of Law, and Santa Clara University School of Law clinics.

Baker takes certain ideas touched upon in Bagdikian’s book, The (New) Media Monopoly and analyses them in much greater depth (Bagdikian has published many versions of his book, the first of which appeared when there were 50 major players in the media business… there are now only 5). He uses economic analysis to determine the efficiency of the current system (or lack thereof), and makes various policy arguments for remedying the current problem within our press. The structure is as follows: he illustrates the problem, proves it economically, introduces a policy proposal, compares it to programs implemented around the world, and then discusses the constitutionality of going forward with his recommendations.

Implicit throughout his book is that the media serves a distinct role in society and that given the current influence that advertisers can exercise, they prevent the media from fulfilling the needs of a democratic society. This idea is developed in greater depth in his book Media Markets and Democracy where he analyses a democratic society’s requirements of its press according to 4 different theories of democracy. He values diversity and that the media should work harder to meet the desires of its readers through content rather than from its advertisers by delivering the right readers.

Another key point of Baker’s argument is that advertising disproportionately hurts the poor. He points to the example of an English newspaper that had larger circulation than the other major newspapers combined, but not withstanding this fact, because the newspaper was read by people without a substantial disposable income, there were few (if any) advertisers who would subsidize the paper. Thus, the paper had to be profitable with only subscription revenues, and it eventually failed. Baker gives the case study and then explains why this is so on theoretical grounds and that this phenomenon most likely occurs rather often—advertisers seek a wealthy audience, and thus media products are disproportionately catered to their tastes, in terms of political leanings, interest pieces, and other editorial content.