First Amendment Notes

First Amendment Doctrines

Children

Federal Agency Implementation of Law

1. Vagueness:
1. If a law gives no clear notice of what is prohibited, it violates due process. See Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) ("It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined").
2. As stated in the Interactive Working Group Report to Senator Leahy,
Neither the Congress nor the Supreme Court have ever established a single definition for what constitutes "indecent" material. The FCC has offered different definitions for indecency depending on the communications medium. Embarking on such a process for interactive media would be fraught with Constitutional disputes and challenges in court. Efforts to ban indecency on dial-a-porn services lead to ten years of constitutional litigation, thus delaying the enforcement of those regulations considerably.

IWG Report, supra note 24, at 4.

Overbreath

^16. Justice STEVENS' conclusion to the contrary is based on little more than "speculation." See, e.g., post, at      8 (KENNEDY, J., concurring in judgment). The only objective evidence cited in the dissenting opinion for the proposition that COPA "will restrict a substantial amount of protected speech that would not be considered harmful to minors in many communities" are various anecdotes compiled in an amici brief. See post, at      10 (citing Brief for Volunteer Lawyers for the Arts et al. as Amici Curiae 4 10). Justice STEVENS, however, is not even willing to represent that these anecdotes relate to material restricted under COPA, see post, at      10, and we understand his reluctance for the vast majority of the works cited in that brief, if not all of them, are likely unaffected by the statute. See Brief for Volunteer Lawyer for the Arts et al. as Amici Curiae 4 10 (describing, among other incidents, controversies in various communities regarding Maya Angelou's I Know Why The Caged Bird Sings, Judy Blume's Are You There God? It's Me, Margaret, Aldous Huxley's Brave New World, J.D. Salinger's Catcher in the Rye, 1993 Academy Award Best Picture nominee The Piano, the American Broadcasting Corporation television network's NYPD Blue, and songs of the "popular folk  rock duo" the Indigo Girls). These anecdotes are therefore of questionable relevance to the matter at hand and certainly do not constitute a sufficient basis for invalidating a federal statute.
Moreover, we do not agree with Justice KENNEDY's suggestion that it is necessary for the Court of Appeals to revisit this question upon remand. See post, at             8 9. The lack of evidence in the record relevant to the question presented does not indicate that "we should vacate for further consideration." Post, at      9. Rather, it indicates that respondents, by offering little more than "speculation," have failed to meet their burden of demonstrating in this facial challenge that COPA's reliance on community standards renders the statute substantially overbroad.

If the law burdens more free speach than is necessary for a compelling interest, it violates the 1A. See Members of City Council of City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800, 104 S.Ct. 2118, 80 L.Ed.2d 772, 783 (1984) (defining overbreadth); New York v. Ferber, 458 U.S. 747, 772, 73 L.Ed.2d 1113, 102 S.Ct. 3348 (1982) (defining overbreadth).

1. Freedom not to Speak:
1. govt can not force you to endorse any symbol or slogan. If you dont believe, dont have to say it. "Live free or die"
2. N: if mandatory state bar lobbies with regard to abortion, member has right to opt out and get refund. cannot be force to speak.
2. No Legislative Deference
1. "To the extent that the federal parties suggest that we should defer to Congress' conclusion about an issue of constitutional law, our answer is that while we do not ignore it, it is our task in the end to decide whether Congress has violated the Constitution. This is particularly true where the Legislature has concluded that its product does not violate the First Amendment. "Deference to a legislative finding cannot limit judicial inquiry when First Amendment rights are at stake." Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 843, 98 S.Ct. 1535, 1543, 56 L.Ed.2d 1 (1978). " -- Sable v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2838 (1989)


Content Neutral Restrictions on Speech

[I]t furthers an important or substantial governmental interest;  if the governmental interest is unrelated to the suppression of free expression;  and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Junk Mail - Solitication

Press

A primary purpose of the First Amendment is "to preserve an untrammeled press as a vital source of public information."  Grosjean, 297 U.S. at 250, 56 S.Ct. at 449.   The free press clause protects not only the words which appear on a newspaper's pages, but its printing and circulation as well.   As Justice Stewart has written:
[T]he Free Press guarantee is in essence a structural provision of the Constitution.   Most of the other provisions in the Bill of Rights protect specific liberties or specific rights of individuals:  freedom of speech, freedom of worship, the right to counsel, the privilege against compulsory self-incrimination, to name a few.   In contrast, the Free Press Clause extends protection to an institution.
  Potter Stewart, "Or of the Press," 26 Hastings L.J. 631, 633  (1975) (emphasis added).
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 693 (S.D.Fl. Nov. 8, 2000)

 When the Constitution was proposed without an explicit guarantee of freedom of the press, the antifederalists objected.   Richard Henry Lee, one of Virginia's leading anti-Federalists, had been a signer of the Declaration of Independence and president of the Continental Congress.   Within a month after adjournment of the Constitutional Convention, he published what quickly became the most popular and influential anti-ratificationist tract, Letters from the Federal Farmer.   Subsequently, he published An Additional Number of Letters, which included a discussion of freedom of the press:

All parties apparently agree, that the freedom of the press is a fundamental right, and ought not to be restrained by any taxes, duties, or in any manner whatever.   Why should not the people, in adopting a federal constitution, declare this, even if there are only doubts about it ... Printing, like all other business, must cease when taxed beyond its profits;  and it appears to me, that a power to tax the press at discretion, is a power to destroy or restrain the freedom of it.   There may be other powers given, in the exercise of which this freedom may be effected;  and certainly it is of too much importance to be left thus liable to be taxed, and constantly to constructions and inferences.   A free press is the channel of communication as to mercantile and public affairs;  by means of it the people in large countries ascertain each others sentiments;  are enabled to unite, and become formidable to those rulers who adopt improper measures.
  Richard Henry Lee, "Letter XVI, January 20, 1788," in An Additional Number of Letters from the Federal Farmer to the Republican 151-53 (Chicago:  Quadrangle Books, 1962) (1788);  see also Leonard W. Levy, Freedom of the Press from Zenger to Jefferson 142-44 (Carolina Academic Press, 1996).   Concerns voiced by the anti-Federalists led to the adoption of the Bill of Rights, including the First Amendment, in 1791. [FN3]
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 695 (S.D.Fl. Nov. 8, 2000)

Spending Clause Restrictions

Prevention of Crime

 
1. Content based restriction of free speach
1. Strict Scrutiny: Necessary & Compelling State Interest
1. "The Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest. We have recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. Ginsberg v. New York, 390 U.S. 629, 639-640, 88 S.Ct. 1274, 1280-81, 20 L.Ed.2d 195 (1968); New York v. Ferber, 458 U.S. 747, 756-757, 102 S.Ct. 3348, 3354-55, 73 L.Ed.2d 1113 (1982). The Government may serve this legitimate interest, but to withstand constitutional scrutiny, "it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. Hynes v. Mayor of **2837 Oradell, 425 U.S. [610], at 620 [96 S.Ct. 1755, 1760, 48 L.Ed.2d 243]; First National Bank of Boston v. Bellotti, 435 U.S. 765, 786 [98 S.Ct. 1407, 1421, 55 L.Ed.2d 707] (1978)." Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637, 100 S.Ct. 826, 836, 63 L.Ed.2d 73 (1980). It is not enough to show that the Government's ends are compelling; the means must be carefully tailored to achieve those ends." -- Sable v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2836-37 (1989)
2. " As we did in Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983), we distinguish Pacifica from the cases before us and reiterate that "the government may not 'reduce the adult population ... to ... only what is fit for children.' " 463 U.S., at 73, 103 S.Ct., at 2883, quoting Butler v. Michigan, supra, 352 U.S., at 383, 77 S.Ct., at 525. " -- Sable v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2837 (1989)
1. Least Restrictive Means
1. "In Butler v. Michigan, 352 U.S. 380, 77 S.Ct. 524, 1 L.Ed.2d 412 (1957), a unanimous Court reversed a conviction under a statute which made it an offense to make available to the general public materials *127 found to have a potentially harmful influence on minors. The Court found the law to be insufficiently tailored since it denied adults their free speech rights by allowing them to read only what was acceptable for children. As Justice Frankfurter said in that case, "[s]urely this is to burn the house to roast the pig." Id., at 383, 77 S.Ct., at 525. In our judgment, this case, like Butler, presents us with "legislation not reasonably restricted to the evil with which it is said to deal." Ibid. " -- Sable v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2837 (1989)
2. Regulation of this form of speech must be by the least restrictive means possible in order to further a compelling government interest. Sable, 492 U.S. at 126. "Supreme Court precedent certainly rejects the notion that a content-based regulation of speech will survive regardless of the burden on speech simply because it is the most effective means to achieve a compelling state interest." Alliance for Community Media, 56 F.3d at 136 (J. Wald, dissenting opinion).
3. In so regulating indecent speech, "the government may not 'reduce the adult population ... to ... only what is fit for children.'" Sable, 492 U.S. at 128 (citing Bolger v. Youngs Drug Products Corp., 463 U.S. at 73, 103 S.Ct. at 2883; Butler v. Michigan, 352 U.S. 380, 383 (1957)). According to the Conference Report, the government may, however, force adults to change the way in which they communicate to each other.
[P]rohibiting indecency merely focuses speakers to re-cast their message into less offensive terms, but does not prohibit or disfavor the essential meaning of the communication. Pacifica, 438 U.S. at 743, n. 18. Likewise, requiring that access restrictions be imposed to protect minors from exposure to indecent material does not prohibit or disfavor the essential meaning of the indecent communication, it merely puts it in its appropriate place: away from children.
Conferece Report, supra note 30 (discussing Sec. 502).
4. When technology presents a solution, that solution must be selected against government intrusion. Sable, 492 U.S. 130-31.

The regulation must "do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms." Sable, 492 U.S at 126 (citing Hynes v. Mayor of Oradell, 425 U.S. 610, 620, 96 S. Ct. 1755, 1760, 48 L.Ed.2d 243); First National Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S. Ct. 1407, 1421, 55 L.Ed.2d 707 (1978); Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637, 100 S. Ct. 826, 836, 63 L.Ed.2d 73 (1980)). See also Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 540, 100 S.Ct. 2326, 2334-35, 65 L.Ed.2d 319 (1980); Alliance for Community Media, 56 F.3d at 124 (stating that balancing analysis must be conducted between compelling state interest of protecting children from indecency and "interest of adults in having access to such material").

the government "may not reduce the adupt population . . . to reading only what is fit for children."  Butler v. Michigan, 352 US 380 (1957)
 

1. If Technological Solution, then not Narrowly Tailored
1. " For all we know from this record, the FCC's technological approach to restricting dial-a-porn messages to adults who seek them would be extremely effective, and only a few of the most enterprising and disobedient young people would manage to secure access to such messages. [FN10] If this is the case, *131 it seems to us that s 223(b) is not a narrowly tailored effort to serve the compelling interest of preventing minors from being exposed to indecent telephone messages. Under our precedents, s 223(b), in its present form, has the invalid effect of limiting the content of adult telephone conversations to that which is suitable for children to hear. It is another case of "burn[ing] the house to roast the pig." Butler v. Michigan, 352 U.S., at 383, 77 S.Ct., at 525. " -- Sable v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2839 (1989)
1. Compelling State Interest
1. the protection of children is agreed as a legitimate government interest. Sable, 492 U.S. at 126 (citing Ginsberg v. New York, 390 U.S. 629, 639-640, 88 S. Ct. 1274, 1280-81, 20 L.Ed.2d 195 (1968); New York v. Ferber, 458 U.S. 747, 756-757, 102 S. Ct. 3348, 3354-55, 73 L.Ed.2d 1113 (1982)); Alliance for Community Media, 56 F.3d at 124.
1. incitement to immediate violence
2. fighting words: must be addressed to someone who might hit back. triggers to violence. in fact all fighting words statutes are unconsti vague and or overbroad.
3. Indecent
1. Indecency is defined as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs." 47 C.F.R. ' 76.701(g); In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. ' 1464, 8 F.C.C.R. 704, 705 n.10 (1993). In explaining the difference between indecency and obscenity, Judge Wald explained
'[i]ndecency' is not confined merely to material that borders on obscenity-- 'obscenity lite.' Unlike obscenity, indecent material includes literarily, artistically, scientifically, and politically meritorious material. Indeed, by definition, it includes all 'patently offensive' material that has any of these kinds of merit, and cannot be branded as obscene under the standard established by the Supreme Court in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419 (1973).
Alliance for Community Media, 56 F.3d at 130 (J. Wald, dissenting opinion). See also FCC v. Pacifica, 438 U.S. 726, 732 (1978); Action for Children's Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991).
2. "In enforcing section 1464 of the Radio Act, the Federal Communications Commission defines "broadcast indecency" aslanguage or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs.

- In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. ' 1464, 8 F.C.C.R. 704, 705 n. 10 (1993) ("1993 Report and Order ")." This definition has remained substantially unchanged since it was first enunciated in In re Pacifica Foundation, 56 F.C.C.2d 94, 98 (1975)." -- Action for Children's Television v. FCC, 58 F.3d 654, *657, 313 U.S.App.D.C. 94, **97 (D.C. Cir. 1995), cert. denied, 116 S.Ct. 701 (1996).
3. FN10. The Commission defines broadcast indecency as language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs." -- In re Enforcement of Prohibitions Against Broadcast Indecency in 18 U.S.C. ' 1464, 8 F.C.C.R. 704, 705 n. 10 (1993) ("1993 Report and Order ").
4. FN4. An indecent program is one that "describes or depicts sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the cable medium." Implementation of Section 10 of the Cable Consumer Protection and Competition Act of 1992, 58 Fed.Reg. 7990, 7993 (1993) (to be codified at 47 C.F.R. ' 76.701(g)). As all agree, this definition of indecency does not encompass all of the elements of obscenity. A work is legally obscene, according to Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614- 15, 37 L.Ed.2d 419 (1973), if (a) " 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, ..."; (b) "the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law"; and (c) "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." -- Alliance for Community Media v. FCC, 56 F.3d 105, 113, 312 U.S.App.D.C. 141, 149 (D.C. Cir. 1995) affirmed in part and rvsd in part Sub. Nom. Denver Area Educational Telecommunications Consortium, Inc. v. F.C.C., 116 S.Ct. 471 (1995)

 
5. "The Commission characterized the language used in the Carlin monologue as "patently offensive," though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to those found in the law of nuisance where the "law generally speaks to channeling behavior more than actually prohibiting it. . . . [T]he concept *732 of 'indecent' is intimately connected with the exposure of children to language that describes,in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs at times of the day when there is a reasonable risk that children may be in the audience." 56 F.C.C.2d, at 98. [FN5]

FN5. Thus, the Commission suggested, if an offensive broadcast had literary, artistic, political, or scientific value, and were preceded by warnings, it might not be indecent in the late evening, but would be so during the day, when children are in the audience. 56 F.C.C.2d, at 98.
-- FCC v. Pacifica Foundation, 438 U.S. 726, 732, 98 S.Ct. 3026, 3031(1978).
1. NOTE: Many people point to Pacifica as setting forth a constitutional definition of "Indecency". But, as can be seen above, Pacifica merely notes that this is the definition of "indecency" as fset forth by the FCC; Pacifica makes no further comment concerning the legitimacy of the definition. Below are the references to indecency in Pacifica
2. "Pacifica takes issue with the Commission's definition of indecency, but does not dispute the Commission's preliminary determination that each of the components of its definition was present. Specifically, Pacifica does not quarrel with the conclusion that this afternoon broadcast was patently offensive. Pacifica's claim that the broadcast was not indecent within the meaning of the statute rests entirely on the absence of prurient appeal." 438 U.S. 726, *739, 98 S.Ct. 3026, **3035
3. "FN15. Indeed, at one point, he used "indecency" as a shorthand term for "patent offensiveness," 370 U.S., at 482, 82 S.Ct., at 1434, a usage strikingly similar to the Commission's definition in this case. 56 F.C.C.2d, at 98." 438 U.S. 726, *740, 98 S.Ct. 3026, **3036
4. "The first argument fails because our review is limited to the question whether the Commission has the authority to proscribe this particular broadcast. As the Commission itself emphasized, its order was "issued in a specific factual context." 59 F.C.C.2d, at 893. That approach is appropriate for courts as well as the Commission when regulation of indecency is at stake, for indecency is largely a function of context--it cannot be adequately judged in the abstract." Pacifica, 438 U.S. 726, *742, 98 S.Ct. 3026, **3037
5. "It is true that the Commission's order may lead some broadcasters to censor themselves. At most, however, the Commission's definition of indecency will deter only the broadcasting of patently offensive references to excretory and sexual organs and activities. [FN18] While some of these references may be protected, they surely lie at the periphery of First Amendment concern. Cf. Bates v. State Bar of Arizona, 433 U.S. 350, 380-381, 97 S.Ct. 2691, 2707- 2708, 53 L.Ed.2d 810. Young v. American Mini Theatres, Inc., 427 U.S. 50, 61, 96 S.Ct. 2440, 2448, 49 L.Ed.2d 310. The danger dismissed so summarily in Red Lion, in contrast, was that broadcasters would respond to the vagueness of the regulations by refusing to present programs dealing with important social and political controversies. Invalidating any rule on the basis of its hypothetical application to situations not before the Court is "strong medicine" to be applied "sparingly and only as a last resort." Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830. We decline to administer that medicine to preserve the vigor of patently offensive sexual and excretory speech." Pacifica 438 U.S. 726, *743, 98 S.Ct. 3026, **3037
6. "FN6. Chairman Wiley concurred in the result without joining the opinion. Commissioners Reid and Quello filed separate statements expressing the opinion that the language was inappropriate for broadcast at any time. Id., at 102-103. Commissioner Robinson, joined by Commissioner Hooks, filed a concurring statement expressing the opinion: "[W]e can regulate offensive speech to the extent it constitutes a public nuisance. . . . The governing idea is that 'indecency' is not an inherent attribute of words themselves; it is rather a matter of context and conduct. . . . If I were called on to do so, I would find that Carlin's monologue, if it were broadcast at an appropriate hour and accompanied by suitable warning, was distinguished by sufficient literary value to avoid being 'indecent' within the meaning of the statute." Id., at 107-108, and n. 9." 438 U.S. 726, *732, 98 S.Ct. 3026, **3031
6. Much was made about the vagueness of the term indecency. However, First Amendment cases usually turn on issues other than the vaguness of this term. As Sen. Grassley pointed out, "the Supreme Court has never-not even once-ruled that the indecency standard is unconstitutional." 142 Cong. Rec. S687 (daily ed. February 1, 1996).
7. According to the Conference Report, the patent offensiveness inquiry involves two distinct elements: the intention to be patently offensive, and a patently offensive result. In the Matter of Sagittarius Broadcasting Corp. et al, 7 FCC Rcd. 6873, 6875, (1992); In the Matter of Audio Enterprises, Inc., 3 FCC Rcd. 930, 932 (1987). Material with serious redeeming value is quite obviously intended to edify and educate, not to offend. Therefore, it will be imperative to consider the context and the nature of the material in question when determining its "patent offensiveness."

Conference Report, supra note 30 (discussing Sec. 502). See also 142 Cong. Rec. H1145 (daily ed. February 1, 1996) (remarks of Rep. Hyde, commenting on constitutionality of definition of indecency).
8. Indecent speech is protected by the Constitution. Sable, 492 U.S. at 126. See 141 Cong. Rec. S15152 (October 13, 1995) (remarks of Sen. Feingold, noting constitutionally protected status of indecency). But see Conferece Report, supra note 30 (discussing reconcilations of Sec. 502, refering to "indecency" as of low value and marginally protected by First Amendment).

Obscenity:

Under Miller v. Califronia, 413 US 15 (1973), the Government must prove that the work, taken as a whole, appeals to the prurient interest, is patently offensive in light of community standards, and lacks serious literary, artistic, political, or scientific value.  Id., at 24.  -- Ashcroft v. Free Speech Coalition, Slip-op, No. 00-795, 535 U.S. __, Sec. II (April 16, 2002)

    Obscene speech, for example, has long been held to fall outside the purview of the First Amendment. See, e.g., Roth v. United States, 354 U.S. 476, 484  485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). But this Court struggled in the past to define obscenity in a manner that did not impose an impermissible burden on protected speech. See Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 704, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968) (Harlan, J., concurring in part and dissenting in part) (referring to the "intractable obscenity problem"); see also Miller v. California, 413 U.S., at 20 23, 93 S.Ct. 2607 (reviewing "the somewhat tortured history of th[is] Court's obscenity decisions"). The difficulty resulted from the belief that "in the area of freedom of speech and press the courts must always remain sensitive to any infringement on genuinely serious literary, artistic, political, or scientific expression." Id., at 22 23, 93 S.Ct. 2607.
    Ending over a decade of turmoil, this Court in Miller set forth the governing three part test for assessing whether material is obscene and thus unprotected by the First Amendment: "(a) [W]hether 'the average person, applying contemporary community standards ' would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.'' Id., at 24, 93 S.Ct. 2607 (internal citations omitted; emphasis added).
     Miller adopted the use of "community standards" from Roth, which repudiated an earlier approach for assessing objectionable material. Beginning in the 19th century, English courts and some American courts allowed material to be evaluated from the perspective of particularly sensitive persons. See, e.g., Queen v. Hicklin [1868] L.R. 3 Q.B. 360, 1868 WL 9940; see also Roth, 354 U.S., at 488 489, and n. 25, 77 S.Ct. 1304 (listing relevant cases). But in Roth, this Court held that this sensitive person standard was "unconstitutionally restrictive of the freedoms of speech and press" and approved a standard requiring that material be judged from the perspective of "the average person, applying contemporary community standards." Id., at 489, 77 S.Ct. 1304. The Court preserved the use of community standards in formulating the Miller test, explaining that they furnish a valuable First Amendment safeguard: "[T]he primary concern ... is to be certain that ... [material] will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person  or indeed a totally insensitive one." Miller, 413 U.S., at 33, 93 S.Ct. 2607 (internal quotation marks omitted); see also Hamling v. United States, 418 U.S. 87, 107, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (emphasizing that the principal purpose of the community standards criterion "is to assure that the material is judged neither on the basis of each juror's personal opinion, nor by its effect on a particularly sensitive or insensitive person or group").
- Ashcroft, V. American Civil Liberties Union, No. 00 1293, __ S.Ct. __ (May 13, 2002)

The definition of "obscenity" was articulated by the Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607 (1973). According to Miller, the test for obscenity is
(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Id., at 24, 93 S.Ct., at 2615 (internal quotation marks and citations omitted).

"Obscenity has no constitutional protection, and the government may ban it outright in certain media, or in all. R.A.V. v. City of St. Paul, 505 U.S. 377, ----, 112 S.Ct. 2538, 2545, 120 L.Ed.2d 305 (1992)." --Alliance for Community Media v. FCC, 56 F.3d 105, 113, 312 U.S.App.D.C. 141, 149 (D.C. Cir. 1995) affirmed in part and rvsd in part Sub. Nom. Denver Area Educational Telecommunications Consortium, Inc. v. F.C.C., 116 S.Ct. 471 (1995)

Obscenity is defined as material, taken as a whole, which the average person, applying contemporary community standards, would find as appealing to the purient interests and lacks serious educational or artistic value. Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419 (1973); Alliance for Community Media, 56 F.3d at 113 n. 4; Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 504-05 (1985) (obscenity must appeal to "shameful or morbid" sexual desires, not merely "normal interest in sex"). The Supreme Court has determined that obscenity is one of those rare forms of speech which is not protected by the First Amendment. Sable, 492 U.S. at 124 (citing Paris Adult Theatre I v. Slaton, 413 U.S. 49, 69, 93 S. Ct. 2628, 2641, 37 L.Ed.2d 446 (1973)); Alliance for Community Media, 56 F.3D at 112 & 121-22.

Lewd, lascivious, and filthy

"The words of ' 1461, 'obscene, lewd, lascivious, indecent, filthy or vile,' connote something that is portrayed in a manner so offensive as to make it unacceptable under current community mores. While in common usage the words have different shades of meaning, the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex. Although the *120 statute condemns such material irrespective of the effect it may have upon those into whose hands it falls, the **1702 early case of United States v. Bennet, 24 Fed.Cas. 1093 (No. 14571), put a limiting gloss upon the statutory language: the statute reaches only indecent material which, as now expressed in Roth v. United States, supra, at 489 [77 S.Ct., at 1311] 'taken as a whole appeals to prurient interest.' " Manuel Enterprises, Inc. v. Day, 370 U.S. 478, 482-484 [82 S.Ct. 1432, 1434-1435, 8 L.Ed.2d 639] (1962) (footnotes omitted; emphasis in original). --Osborne v. Ohio, 495 U.S. 103, *119, 110 S.Ct. 1691, **1701 (1990).

Hamling rejected a vagueness attack on ' 1461, which forbids the mailing of "obscene, lewd, lascivious, indecent, filthy or vile" material. In holding that the statute's coverage is limited to obscenity, the Court followed the lead of Mr. Justice Harlan in Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962). In that case, Mr. Justice Harlan recognized that ' 1461 contained a variety of words with many shades of meaning. **3036 [FN15] Nonetheless, he thought that the phrase "obscene, lewd, lascivious, indecent, filthy or vile," taken as a whole, was clearly limited to the obscene, a reading well grounded in prior judicial constructions: "[T]he statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex." 370 U.S., at 483, 82 S.Ct., at 1434. In Hamling the Court agreed with Mr. Justice Harlan that ' 1461 was meant only to regulate obscenity in the mails; by reading into it the limits set by Miller v. California, supra, the Court adopted a construction which assured the statute's constitutionality. -- Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726, *740, 98 S.Ct. 3026, **3035 (1978).

'The words of s 1461, 'obscene, lewd, lascivious, indecent, filthy or vile,' connote something that is portrayed in a manner so offensive as to make it unacceptable under current community mores. While in common usage the words have different shades of meaning, the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex. Although the statute condemns such material irrespective of the effect it may have upon those into whose hands it falls, the early case of United States v. Bennett, 24 Fed.Cas. p. 1093, No. 14,571, put a limiting gloss upon the statutory language: the statute reaches only indecent material which, as now expressed in Roth v. United States, supra, at 489, 77 S.Ct. at 1311, 'taken as a whole appeals to prurient interest.'' 370 U.S., at 482--484, 82 S.Ct., at 1434 (footnotes omitted) --Hamling v. United States, 418 U.S. 87, *112, 94 S.Ct. 2887, **2905 (1974)

Elements

must be sexy (appeal to the purient interests)
must make society sick. patently offensive to average person in community.
must have right standards
must lack serious value: educational, artistic.

Community Standards

⁶While petitioner contends that a speaker on the Web possesses the ability to communicate only with individuals located in targeted geographic communities, Brief for Petitioner 29, n. 3, he stipulated below that "[o]nce a provider posts its content on the Internet and chooses to make it available to all, it generally cannot prevent that content from entering any geographic community." App. 187. The District Court adopted this stipulation as a finding of fact, see American Civil Liberties Union v. Reno, 31 F.Supp.2d 473, 484 (E.D.Pa.1999), and petitioner points to no evidence in the record suggesting that this finding is clearly erroneous.
⁷Although the phrase "contemporary community standards" appears only in the "prurient interest" prong of the Miller test, see Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), this Court has indicated that the "patently offensive" prong of the test is also a question of fact to be decided by a jury applying contemporary community standards. See, e.g., Pope v. Illinois, 481 U.S. 497, 500, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987). The parties here therefore agree that even though "contemporary community standards" are similarly mentioned only in the "prurient interest" prong of COPA's harmful to minors definition, see 47 U.S.C. § 231(e)(6)(A), jurors will apply "contemporary community standards" as well in evaluating whether material is "patently offensive with respect to minors," § 231(e)(6)(B).
^8. While the CDA allowed juries to find material to be patently offensive so long as it depicted or described "sexual or excretory activities or organs," COPA specifically delineates the sexual activities and anatomical features, the depictions of which may be found to be patently offensive: "an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post pubescent female breast." 47 U.S.C. § 231(e)(6)(B).
^9.Justice STEVENS argues that the "prurient interest" prong does not "substantially narrow the category of images covered" by COPA because "[a]rguably every depiction of nudity  partial or full  is in some sense erotic with respect to minors," post, at             6 7 (dissenting opinion) (emphasis in original). We do not agree. For example, we have great difficulty understanding how pictures of a war victim's wounded nude body could reasonably be described under the vast majority of circumstances as erotic, especially when evaluated from the perspective of minors. See Webster's Ninth New Collegiate Dictionary 422 (1991) (defining erotic as "of, devoted to, or tending to arouse sexual love or desire").
^10. Justice STEVENS contends that COPA's serious value prong only marginally limits the sweep of the statute because it does not protect all material with serious value but just those works with serious value for minors. See post, at      7. His dissenting opinion, however, does not refer to any evidence supporting this counterintuitive assertion, and there is certainly none in the record suggesting that COPA restricts about the same amount of material as did the CDA. Moreover, Justice STEVENS does not dispute that COPA's "serious value" prong serves the important purpose of allowing appellate courts to set "as a matter of law, a national floor for socially redeeming value." Reno, 521 U.S., at 873, 117 S.Ct. 2329.
^11. Although nowhere mentioned in the relevant statutory text, this Court has held that the Miller test defines regulated speech for purposes of federal obscenity statutes such as 47 U.S.C. § 223(b) (1994 ed.). See, e.g., Smith v. United States, 431 U.S. 291, 299, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977).
^12. This fact was perhaps omitted because under the federal statute at issue in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), a defendant could be prosecuted in any district through which obscene mail passed while it was on route to its destination, see id., at 143 144, 94 S.Ct. 2887 (Brennan, J., dissenting), and a postal customer obviously lacked the ability to control the path his letter traveled as it made its way to its intended recipient.
^13. Justice STEVENS' contention that this Court "upheld the application of community standards to a nationwide medium" in Sable due to the fact that "[it] was at least possible" for dial a porn operators to tailor their messages to particular communities is inaccurate. See post, at      4 (dissenting opinion). This Court's conclusion clearly did not hinge either on the fact that dial a porn operators could prevent callers in particular communities from accessing their messages or on an assessment of how burdensome it would have been for dial a porn operators to take that step. Rather, these companies were required to abide by the standards of various communities for the sole reason that they transmitted their material into those communities. See Sable, 492 U.S., at 126, 109 S.Ct. 2829 ("If Sable's audience is comprised of different communities with different local standards, Sable ultimately bears the burden of complying with the prohibition on obscene messages").
^14. In addition, COPA does not, as Justice KENNEDY suggests, "foreclose an entire medium of expression." Post, at      6 (quoting City of Ladue v. Gilleo, 512 U.S. 43, 55, 114 S.Ct. 2038, 129 L.Ed.2d 36 (1994)). While Justice KENNEDY and Justice STEVENS repeatedly imply that COPA banishes from the Web material deemed harmful to minors by reference to community standards, see, e.g., post, at     6 (opinion concurring in judgment); post, at     ,      7, 11 (dissenting opinion), the statute does no such thing. It only requires that such material be placed behind adult identification screens.
^15. Obscene material, for instance, explicitly falls within the coverage of COPA. See 47 U.S.C. § 231(e)(6) (1994 ed., Supp. V).

National Standards s 223

We stated in United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), that the Miller standards, including the "contemporary community standards" formulation, apply to federal legislation. As we have said before, the fact that "distributors of allegedly obscene materials may be subjected to varying community standards in the various federal judicial districts into which they transmit the materials does not render a federal statute unconstitutional because of the failure of application of uniform national standards of obscenity." Hamling v. United States, supra, 418 U.S., at 106, 94 S.Ct., at 2902. " --Sable v. FCC, 492 U.s. 115, 109 S.Ct. 2829, 2835-36 (1989)
 

Child Pornography

Virtual Child Pornography

The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment's vast and privileged sphere.  Under this principle, the CPPA is unconstitutional on itts face if it prohibits a substantial amount of protected expression.  See Broadrick v. Oklahoma, 413 US 601, 612 (1973).  -- Ashcroft v. Free Speech Coalition, Slip-op, No. 00-795, 535 U.S. __, Sec. II (April 16, 2002)

1. Profanity:
1. The last catagory is the "profane." This word is not in common usage in the caselaw. Most cases turn on obscenity and indecency. Indeed, I could not find a definition for the "profane" until back in 1931. See cite list attached (listing cases where "1464" and "profane" are found, all lacking definitions of the word "profane"). In 1931, the Ninth Circuit defined "profane" as the equivolent of sacrilidges. Duncan v. United States, 48 F.2d 128, 132 (9th Cir. 1931) cert. denied 283 U.S. 863, 51 S.Ct. 656. In that case, the court recognized the definition of "profane" as
"Irreverent toward God or holy things; speaking or spoken, acting or acted, in manifest or implied contempt of sacred things; blasphemous: as, profane language; profane swearing." . . . "any words importing an imprecation of divine vengence or implying divine condemnation, so used as to constitute a public nuisance, would suffice."
Id. at 133.

Material Harmful to Minors

Cursing

1. Finally, it has been recognized by the Courts that mere cursing is not a type of speach which can be restricted by the sovereign. In Duncan, the case where the Court was willing to suppress profane speach, the court stated
course, vulgar, and indecent [speach] was not within the purview of the statute because its tendency was to excite anger and condemn and repel rather then excite feelings of an impure, lascivious, or unchaste character.


Duncan, 48 F.2d at 132.

2. "As stated by Judge Baker of the United States District Court of Indiana in U.S. v. Males, 51 F. 41, 43: 'It seems to me that the statute under consideration was intended to prohibit the dissemination by the mails of printed or written matter or pitcotiral productions calculated to excite the animal passions, and to corrupt and debauch the mind, and not such as are merely coarse, vulgar, or indecent in the popular sense of those terms.' In that case he held that the language used, although coarse, vulgar and indecent, was not within the purview of the statute because its tendency was to excite anger and condemn and repel rather thhen excite feelings of an impure, lascivious, or unchaste character. See, alse, U.S. v. Clark (D.C.) 43 F. 574; Griffin v. U.S. (C.C.A.) 248 F. 6; Knowles v. U.S. (C.C.A.) 107 F. 409; Dysart v. U.S. (C.C.A.) 4 F. (2d) 765; Krause v. U.S. (C.C.A.) 29 F. (2d) 248."

- Duncan v. United States, 48 F.2d 128, 132 (9th Cir. 1931) cert. denied 283 U.S. 863, 51 S.Ct. 656..
3. "The question of what constitutes profane language has been before the courts for centuries. The subject is usually dealt with as a branch of the comon-law offense of blasphemy, but in the United States particularly it has been a frequent subject of legislation. In the Century Dictionary, 'profane' is defined as follows: 'Irreverent toward God or holy things; speaking or spoken, acting or acted, in manifest or implied contempt of sacred things; blasphemous: as, profane language; profane swearing.' In Gaines v. State, 7 Lea (75 Tenn.) 410, 40 Am. Rep. 64, decided in 1881, the defendant was charged with uttering a profane oath in a public place, Etc. It was said: 'Any words importing an imprecation of divine vengence or implying divine condemnation, so used as to constitute a public nuisance, would suffice. Isom v. State, September Term, 1880; Holcomb v. cornish, 8 conn. 375.'"

Duncan v. United States, 48 F.2d 128, 132 (9th Cir. 1931) cert. denied 283 U.S. 863, 51 S.Ct. 656. .
4. "Under these decisions, the indictment having alleged that the language is profane, the defendent having referred to an individual as 'damned,' having used the expression 'By God' irreverently, and having announced his intention to call down the curse of God upon certain individuals, was properly convicted of using profane language within the meaning of that term as used in the act of Congress prohibiting the use of profane language in radio broadcasting." Duncan v. United States, 48 F.2d 128, 132 (9th Cir. 1931) cert. denied 283 U.S. 863, 51 S.Ct. 656.

Offensive Speech

First Amendment and Communications

FCC Generally

Censorship of Communications Generally

Red Lion: The Public right is more imporatnat than the broadcasters right. The spectrum is scarce. Broadcasters must give back to the public when they use the public resource.

Must Take Medium into Account

Regulation of indecency in the past was found to appropriate given the unique characteristics of the medium. When considering the printed press, regulation of content has largely not been tolerated by the Courts. This changed, however, with broadcast. Due to the "pervasive" nature of the broadcast and the possibility that a listener, in his or her car or home, might stumble upon an offensive broadcast as he or she spins down the dial, restrictions on the broadcast of indecency have been upheld by the Supreme Court. Pacifica v. FCC, 438 U.S. 726 (1978).Again, technology changed with the creation of "dial-a-porn" and, again, the old law was not permitted to be applied to the new medium. The "pervasiveness" of the broadcast medium was seen as irrelevant to dial-a-porn. New restrictions appropriate to the new medium had to be promulgated by the FCC. See Alliance for Community Media, 56 F.3d at 124 (recounting history of indecency law in light of differences in medium; analyzing constitutionality of permitting cable companies to censor lease accessed channels, taking into account unique features of cable).

Many of the FCC governing statutes and regulations implicate First Amendment concerns. Historically, however, no single First Amendment framework has been applicable to all speakers regulated by the FCC. Instead, the level of First Amendment protection afforded to various speakers regulated by the FCC has varried according to the communications medium over which the communication has been carried (i.e., broad cast, common carrier, or cable). For example, while content-based common carrier regulations generally have been reviewed under the traditional First Amendment strict scrutiny standard of review, content based broadcast regulations geerally have been reviewed under intermediate scrutiny or under deferential version of strict scrutiny. In addition, certain ownership restrictions are deemed to be akin to economic regulation and thus are reviewed under the most deferential standard of review, the rational basis test. Each of these standards is addressed in turn below.

It must be noted that the FCC's First Amendment jurisprudence always is subject to reevaluation by the courts and that the analysis provided herein cannot substitute for thorough legal research and analysis. For example, recently, several Justices of the Supreme Court indicated that they would prefer to review restrictions on speech regulated by the FCC on a case-by-vsdr basis, and not by reference to the communications medium over which the speech is carred. Denver Area Educational Telecommunications Consortium, Inv. v. FCC, 116 S.Ct. 2374, 2385 (Beyer, J., plurality opinion with Justices Stevens, O'Connor, Souter joining). Under this new approach, whih has not been approved by a majority of the Supreme Court, certain FCC statutes or regulations that affect speech would be reviewed under a standard that falls somewhere betweeen intermediate and strict scrutiny, requiring that such provisions must "properly address[] an extremely inportant problem, wihtout inposing, in light of therelevant interestes, an uncecessarily great restriction on speech." Id.

Promote First Amendment

FCC v National Citizens Committee for Broadcasting, 436 US 774 (1978)

Red Lion Broadcasting Co., Inc. v. FCC, 395 US 367, 386-92 (1969)

Cable, Broadcast, Video

Turner Boradcasting System, Inc. v. FCC, 117 S.Ct. 1174 (1997) ("Federal policy ... has long favored preserving a multiplicity of broadcast outlets of whether the donduct that threatens it is motivated by anticompetitive animus or rises to the level of an antitrust violation."
 

Circulation - conduit

 The Supreme Court, however, has repeatedly held that "[l]iberty of circulating is as essential to [freedom of the press] as liberty of publishing;  indeed, without the circulation, the publication would be of little value."  Ex Parte Jackson, 96 U.S. 727, 733, 6 Otto 727, 24 L.Ed. 877 (1877);  see also City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 768, 108 S.Ct. 2138, 2150, 100 L.Ed.2d 771 (1988) ("The actual 'activity' at issue here [placement of newsracks] is the circulation of newspapers, which is constitutionally protected.");  Lovell v. City of Griffin, Ga., 303 U.S. 444, 452, 58 S.Ct. 666, 669, 82 L.Ed. 949 (1938) ("The ordinances [prohibiting distribution of circulars] cannot be saved because it relates to distribution and not to publication.").   Liberty of circulating is not confined to newspapers and periodicals, pamphlets and leaflets, but also to delivery of information by means of fiber optics, microprocessors and cable.  "The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion."  Id.
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 691 (S.D.Fl. Nov. 8, 2000)
 

Content and conduit Connected

 In arguing that the conduit or transmission capability of speech can be separated from its content, the County ignores the relationship between the two.   Although all would agree that the First Amendment protects freedom of thought and expression, it is equally true that thought is nonverbal and necessarily requires speech to be communicated.   Moreover, technology extends the senses, permitting faster communication beyond reach of the human voice. The printed word brought uniformity and repeatability and permitted widespread circulation through books and then newspapers.   The increasing speed of information gathering and publication also has created new forms of arranging and circulating information affecting not only the physical appearance of the press but also the prose of those contributing to it.   For example, movies, by speeding up the mechanical, moved us from sequence to configuration and structure while the immediacy of radio and television has eliminated distance and time.   In short, content and technology are intertwined in ways which make analytical separability difficult and perhaps unwise.
        The present case involves broadband technology.   Broadband cable Internet service brings instant two-way communication that can accommodate tremendous amounts of information in video, audio, and printed form.   Undoubtedly, it will affect our economy and culture, as have the other technologies for human expression.   As Marshall McLuhan said over thirty years ago, to a substantial extent, "the medium is the message."   Marshall McLuhan, Understanding Media: The Extension of Man, McGraw-Hill (1964).   If so, the question then becomes, can government regulate the technology of expression without also changing its meaning?
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 692 (S.D.Fl. Nov. 8, 2000)
 

Discrimination Against a Conduit


 The Broward County ordinance operates to impose a significant constraint and economic burden directly on a cable operator's means and methodology of expression.   The ordinance singles out cable operators from all other speakers and discriminates further against those cable operators who choose to provide Internet content.   The ordinance has no application to wireless, satellite, or telephone transmission or other providers of Internet service.   In these respects, the ordinance operates in much the same manner as the use tax held to violate the First Amendment in Minneapolis Star and Tribune Co. v. Minnesota Com'r of Revenue, 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d 295 (1983);  see also Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987);  Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936).   But see Leathers v. Medlock, 499 U.S. 439, 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991).
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 692-93 (S.D.Fl. Nov. 8, 2000)

Forced Access

A newspaper is more than a passive receptacle or conduit for news, comment, and advertising.   The choice of material to go into a newspaper, and the decisions made as to the limitations on the size and content of the paper, and treatment of public issues and public officials--whether fair or unfair-- constitute the exercise of editorial control and judgment.   It has yet to be demonstrated how government regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved this time.

GateKeeper

Broadcast

1. 18 USC 1464: This section states "Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both."
2. "While the *113 **149 government may nevertheless restrict the showing of indecent programs, it may do so only in a manner consistent with the First Amendment. See Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836-37, 106 L.Ed.2d 93 (1989)." --Alliance for Community Media v. FCC, 56 F.3d 105, 113, 312 U.S.App.D.C. 141, 149 (D.C. Cir. 1995) affirmed in part and rvsd in part Sub. Nom. Denver Area Educational Telecommunications Consortium, Inc. v. F.C.C., 116 S.Ct. 471 (1995).
3. " In attempting to justify the complete ban and criminalization of the indecent commercial telephone communications with adults as well as minors, the federal parties rely on FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978), a case in which the Court considered whether the FCC has the power to regulate a radio broadcast that is indecent but not obscene. In an emphatically narrow holding, the Pacifica Court concluded that special treatment of indecent broadcasting was justified. Pacifica is readily distinguishable from these cases, most obviously because it did not involve a total ban on broadcasting indecent material. The FCC rule was not " 'intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it.' " Pacifica, supra, at 733, 98 S.Ct., at 3032, quoting Pacifica Foundation, 59 F.C.C.2d 892 (1976). The issue of a total ban was not before the Court. 438 U.S., at 750, n. 28, 98 S.Ct., at 3040, n. 28.

The Pacifica opinion also relied on the "unique" attributes of broadcasting, noting that broadcasting is "uniquely pervasive," can intrude on the privacy of the home without prior warning as to program content, and is "uniquely accessible to children, even those too young to read." Id., at 748-749, 98 S.Ct., at 3039-3040." -- Sable v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2837 (1989)
4. Traditionally, broadcasters have "received the most limited First Amendment protection." FCC v. Pacifica Foundation, 438 U.S. 725, 748 (1978). Indeed, in affirming an FCC order barring radio broadcasts of indecent speech during daytime hours, the Supreme Court in Pacifica appeared to apply the rational basis standard of review . Id at 750 ("The ease with which children may obtain access to broadcast material . . . justified the regulation of otherwise protected expression"); see also Red Lion Broadcasting Co v. FCC, 395 U.S. 367. Generally, however, the courts have reviewed broadcast restrictions under either intermediate scrutiny or under a deferential version of the strict scrutiny test. See FCC v. League of Woman Voters, 468 U.S. 364, 380 (1984) (requiring broadcast provisions to be "narrowly taylored to further a substantial governmental interest"); Action for Children's Television v. FCC, 58 F.3d 654, 657 (D.C. Cir. 1995) (requiring broadcast restrictions to "promote a compelling interest" and be carefully tailored" to further the articulated interest, taking into considertion the "unique context of the broadcast medium"), cert denied, 116 S.Ct. 701 (1996) (sic). The rights of the viewers and listeners are "paramount." Action for Children's Television, 58 F.3d at 558.

The Supreme Court adopted this lesser standard of review for several reasons. First, it ensures that broadcasters use the scarce and public resource of the electromagnetic spectrum in the public interest. See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390 (1969) ("[w]here there are substantially more individuals who want to broadcast than there are frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to broadcst comparable to the right of every individual to speak, write, or publish."). Second, the lower standard of review recognizes that "a licensed broadcaster is 'granted the free and exclusive use of a limited and valuable part of the public domain . . . [and that] when he accepts that franchise it is burdened by enforceable public obligations.'" CBS, Inc. v. FCC, 453 U.S. 367, 395 (1981) (upholding a challenge to the statute (47 U.S.C. s 312(a)(7)) that requires broadcasters to provide reasonable access to individual candidates seeking federal elective office). Third, broadcasting has a "uniquely pervasive presence" in the lives of all Americans and is "uniquely accessible to children," therefore warranting special treatment of this medium. See, Pacifica, 438 U.S. at 748-50.
5. Narrow Holding
1. "The Court in Pacifica was careful "to emphasize the narrowness of [its] holding." Id., at 750, 98 S.Ct., at 3040." -- Sable v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2837 (1989)
1. General Mobile Radio Service
1. 47 C.F.R. ' 95.181 (1996)
2. Amatuer Radio
1. 47 C.F.R. ' 97.113(a)(4) (1996).
2. 47 U.S.C. ' 312(a)(6) (citing 18 U.S.C. ' 1304, 1343, 1464)
3. Citizens Band
1. 47 C.F.R. ' 95.413 (1996)
4. FAX
1. Statute making it unlawful to use any telephone facsimile machine, computer or other device to send unsolicited advertisement to telephone fascimile (FAX) machine was valid content-based restriction on commercial speech; interest in protecting consumers from economic harm resulting from unfair shifting of advertising costs from advertiser to customer was substantial interest directly advanced by statute and restriction was narrowly tailored to serve specific purpose for which it was intended. Destination Ventures, Ltd., v. F.C.C., 844 F.Supp. 632 (D.Or. 1994), 46 F.3d 54.

Cable

"For purposes of paragraphs (b)-(f) of this section, "indecent programming" is any programming that describes or depicts sexual or excretory activiites or organs in a patently offensive manner as measured by contemporary community standards for the cable medium." 47 C.F.R. ' 76.701(g).

 The Broward County ordinance invidiously impacts a cable operator's ability to participate in the information market.   The cable operator, unlike a telephone service, does not sell transmission but instead offers a collection of content.   Like a newspaper, a cable operator sells advertising to defray the costs of its service.   Advertising allows an operator to keep subscriber rates lower than would otherwise be the case, an attraction in obtaining the critical mass of subscribers necessary to pay for the sizable investment in physical plant.   See Affidavit of Thomas Cullen  11, Exhibit I, Plaintiffs Comcast and Advanced Cable's Appendix to Statement of Material Facts in Support of Summary Judgment (Volume II).... The imposition of an equal access provision by operation of the Broward County ordinance both deprives the cable operator of editorial discretion over its programming and harms its ability to market and finance its service, thereby curtailing the flow of information to the public.   It distorts and disrupts the integrity of the information market by interfering with the ability of market participants to use different cost structures and economic approaches based upon the inherent advantages and disadvantages of their respective technology.
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 693 (S.D.Fl. Nov. 8, 2000)

In Turner I, the Supreme Court held that cable operators are generally entitled to the same First Amendment protection as the print media. The standard adopted by the Court in Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969), which was grounded on the scarcity of broadcasting frequencies, was held inapplicable to cable.   See Turner I, 512 U.S. at 637, 114 S.Ct. at 2456.  "[T]he rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation ... does not apply in the context of cable regulation".  Id. at 639, 114 S.Ct. at 2457.  "[A]pplication of the more relaxed standard of scrutiny adopted in Red Lion and the other broadcast cases is inapt when determining the First Amendment validity of cable regulation."  Id.
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 696 (S.D.Fl. Nov. 8, 2000)
 

Thus far, the Supreme Court has declined to extend the same deferential standard of review afforded broadcast regulations to content-based cable regulations, reasoning that "the rationale for applying a less rigorous standard of First Amendment scrutiny to broadcast regulation [e.g., the scarsity of spectrum] . . . does not apply in the context of cable regulation." Turner Broadcasting System, Inc. v. FCC, 114 S.Ct. 2445, 2456 (1994). Although the Supreme Court has not spoken with one voice as to exactly how it will review content-based cable regulations, it appears that the applicable standard of review is a varriant of strict scrutiny, either Justice Breyer's standard that regulations must "properly address[] an extremely important problem, without imposing, in light of the relevant interests, an unnecessarily great restriction on speech" or a more traditional strict scrutiny standard that at a minimum does not ignore "the unique phyical characteristics of cable transmission." Denver Area, 116 S.Ct. at 2385 (Breyer, J. Plurality opinion) & at 2410 (Kennedy, J., concuring in part and dissenting in part); Turner, 114 S.Ct. at 2457.

In contract to the heightened scrutiny afforded content-based cable regulations, non=content based cable regulations are subjected to intermediate scrutniy. Turner, 114 S.Ct. at 2469. for example, in Turner, the Supreme Court held that the Commission's must-carry rules, which require cable systems to carry local broadcast stations, were constitutional because they "further[ed] an important or substantial government interest . . . [and] the restruction . . . [was] no greater than is essential." Id.
 

Must Carry

 Nevertheless, in Turner I, the Court upheld the must-carry provisions adopted by the FCC which require carriage of local broadcast stations on cable systems.   The Court determined that the applicable standard to evaluate the must-carry provisions was the intermediate level of scrutiny applicable to content-neutral restrictions that impose an incidental burden on speech. However, the reasons given by the Court for applying intermediate rather than strict scrutiny do not apply in this case.
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 696 (S.D.Fl. Nov. 8, 2000)
 

Must Carry =/= Open Access

 Nevertheless, in Turner I, the Court upheld the must-carry provisions adopted by the FCC which require carriage of local broadcast stations on cable systems.   The Court determined that the applicable standard to evaluate the must-carry provisions was the intermediate level of scrutiny applicable to content-neutral restrictions that impose an incidental burden on speech. However, the reasons given by the Court for applying intermediate rather than strict scrutiny do not apply in this case.
     First, unlike the must-carry rules which applied to virtually all cable operators in the country, the Broward County ordinance applies only to the select few that seek to operate broadband Internet service.   This ordinance is targeted only at the Plaintiffs, and it is likely to result in the elimination of broadband cable Internet service in unincorporated Broward County.   The ordinance was adopted at the behest of a telephone company seeking to eliminate or hamper a competitor.
     Moreover, differential treatment is not justified by some special characteristic of the medium being regulated.   In Turner I, the Supreme Court found that when an individual subscribes to cable, the physical connection between the television set and the cable network gives the cable operator bottleneck or gatekeeper control over most (if not all) of the television programming that is channeled into the subscriber's home.  512 U.S. at 656, 114 S.Ct. at 2466.   According to the Court, cable operators possessed "bottleneck monopoly" power that threatened the "viability of broadcast television."  Id. at 661, 114 S.Ct. at 2468.   This was the reason the Court found Tornillo not to control the must-carry provisions.
      Cable operators control no bottleneck monopoly over access to the Internet.   Today, most customers reach the Internet by telephone.   Those who obtain access through cable can use the Internet to reach any Internet information provider.   After inquiry, the FCC has concluded that it does not foresee monopoly, or even duopoly in broadband Internet services.   See Advanced Services Report.   The "bottleneck" theory offers no justification for less than heightened scrutiny of the Broward County ordinance.
     Finally, the Court found that the must-carry regulations did not force the cable operators to alter their own message or create a risk that a cable viewer might assume that ideas or messages of the broadcaster were endorsed by the cable operator.   The Court pointed out that cable had a long history of serving as a conduit for broadcast signals and that broadcasters were required by FCC regulation to identify themselves at least once every hour.   The Court stated that no aspect of must-carry would cause a cable operator to avoid controversy and by so doing diminish the free flow of information and ideas. See Turner I, 512 U.S. at 655-56, 114 S.Ct. at 2465-66.
      In contrast, there is no history of cable operators serving as a conduit for Internet service providers.   During oral argument, counsel for Broward County estimated that there may be around 5,000 Internet service providers at present, and unlike broadcasters, there is no limit on the number that might demand access.   Nor is there any reason to expect that Internet information services granted access to the cable system would not be offensive to the operator and its subscribers.⁴  The cable operator under the ordinance would be required to adopt technology which would allow its system to identify each subscriber's choice of Internet service provider so that equal access could be provided and accommodate the demands of the service providers, all in contravention of existing contracts.   The Broward County ordinance, unlike the must-carry regulations of the FCC, threaten to diminish the free flow of information and ideas.

⁴For example, the Internet is becoming a primary platform by which white supremacist groups and other purveyors of hate such as the White Aryan Resistance and the World Church of the Creator reach out to their small but dangerous constituency.   The Southern Poverty Law Center estimates there are 350 to 500 hate sites on the Internet, some offering multi-page content with audio and video.   To these groups, the Internet offers a place without governance or accountability.   See, HATE.com, Extremists on the Internet, an HBO documentary by HBO and the Southern Poverty Law Center (http://www.hbo.com/ hate).

 For these reasons, I believe this case falls within the rule of Tornillo,  Minneapolis Star and TribuneCo., and Pacific Gas and Elec. Co. and therefore strict scrutiny is required.   However, if I am mistaken, the ordinance fails content-neutral scrutiny as well.
Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685, 696-97 (S.D.Fl. Nov. 8, 2000)

Cable Open Access

• Harold Feld, Whose Line is it Anyway?  The First Amendment and Cable Open Access, 8 CommLaw Conspectus 23 (2000)
• David Wolitz, Open Access and the First Amendment: A Critique of Comcast Cablevision of Broward County, Inc. v. Broward County, 4 YALE SYMP. L. & TECH 6 (2001)
• Comcast Cablevision of Broward Country, Inc., v. Broward County, Florida, 124 F.Supp.2d 685 (S.D.Fl. Nov. 8, 2000) News articles on the case
• AT&T Corp. v. City of Portland, 43 F. Supp. 2d 1146, 1154 (D. Ore. 1999), reversed on other grounds, 216 F.3d 871 (9th Cir. 2000) News articles on the case

Telephones: Dial-a-Porn

1. 47 C.F.R. ' 64.201
2. The ability of the phone company to control the audience which received dial-a-porn was fundamental to the Sable decision. Sable, 492 U.S. at 125 (stating "Sable is free to tailor its messages, on a selective basis, if it so chooses, to the communities it chooses to serve.").
3. "In contrast to public displays, unsolicited mailings and other means of expression which the recipient has no meaningful opportunity to avoid, the dial-it *128 medium requires the listener to take affirmative steps to receive the communication. There is no "captive audience" problem here; callers will generally not be unwilling listeners. The context of dial-in services, where a caller seeks and is willing to pay for the communication, is manifestly different from a situation in which a listener does not want the received message. Placing a telephone call is not the same as turning on a radio and being taken by surprise by an indecent message. Unlike an unexpected outburst on a radio broadcast, the message received by one who places a call to a dial-a-porn service is not so invasive or surprising that it prevents an unwilling listener from avoiding exposure to it. " -- Sable v. FCC, 492 U.S. 115, 109 S.Ct. 2829, 2837 (1989)
4. Content-based restrictions on telephone communications are the subject of strict scrutiny. The rationale for not applying the deferential broadcast standard of review to relephone communications is that telphone comunications differ from broadcast communications in that a user of a telephone must take affirmative steps to receive telephone communications from a particular speaker while a user of a television or radio may come across unwelcome communications by a simple turn of the dial. Sable Communications v. California, Inc. v. FCC, 492 U.S. 115, 126-29 (1989) (invalidating a federal statute that denied adults access to indecent telephone messages). Thus, content-based regulations relating to telephone communications must "promote a compelling interest" and must be "the least restrictive means to further the articulated interest." Id.

Direct Broadcast Satellite Services

1. Regulations impacting speech on direct broadcast satellite (DBS) services (which are technically not "broadcast" services) are subject to the "same relaxed standard of scrutiny that the court has applied to the traditional broadcast media." Time Warner Entertainment Co. V. FCC, No. 93-5349, slip op. at 29 (D.C. Cir. August 30, 1996) (holding that mandaroyr set aside of DBS channels for educations use is constitutional because it is "'a reasonable means of promoting the public interest in diversified mass communications'") (citation omitted). the opinion in Time Warner also illustrates the general rule of thumb that FCC statutes or regulations that promote speech (as opposed to restricting speech) are more likely to pass constitutional muster. Id., slip op. at 33.

Internet

Value of Internet

¹For a thorough explanation of the history, structure, and operation of the Internet and World Wide Web, see Reno v. American Civil Liberties Union, 521 U.S. 844, 849 853, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997).

The Internet provides easy access to anyone who wishes to provide or distribute information to a worldwide audience; it is used by more than 143 million Americans.  Indeed, much of the world’s knowledge accumulated over centuries is available to Internet users almost instantly. -- ALA v. United States, CA 01-1303 Sec. 1 (ED PA May 31, 2002) http://www.paed.uscourts.gov/documents/opinions/02D0415P.HTM

"As we noted at the outset, the Internet is a vast, interactive medium consisting of a decentralized network of computers around the world.  The Internet presents low entry barriers to anyone who wishes to provide or distribute information.  Unlike television, cable, radio, newspapers, magazines or books, the Internet provides an opportunity for those with access to it to communicate with a worldwide audience at little cost.  At least 400 million people use the Internet worldwide, and approximately 143 million Americans were using the Internet as of September 2001.  Nat’l Telecomm. & Info. Admin., A Nation Online: How Americans Are Expanding Their Use of the Internet  (February 2002), available at http://www.ntia.doc.gov/ntiahome/dn/." - ALA v. United States, CA No. 01-1303 (EDPA May 31, 2002)
 

 Problem of the Internet

There is a vast amount of sexually explicit material available via the Internet and the Web.  Sexually explicit material on the Internet is easy to access using any public search engine, such as, for example, Google or AltaVista.  Although much of the sexually explicit material available on the Web is posted on commercial sites that require viewers to pay in order to gain access to the site, a large number of sexually explicit sites may be accessed for free and without providing any registration information.  Most importantly, some Web sites that contain sexually explicit content have innocuous domain names and therefore can be reached accidentally.  A commonly cited example is http://www.whitehouse.com.  Other innocent-sounding URLs that retrieve graphic, sexually explicit depictions include http://www.boys.com, http://www.girls.com, http://www.coffeebeansupply.com, and http://www.BookstoreUSA.com.  Moreover, commercial Web sites that contain sexually explicit material often use a technique of attaching pop-up windows to their sites, which open new windows advertising other sexually explicit sites without any prompting by the user.  This technique makes it difficult for a user quickly to exit all of the pages containing sexually explicit material, whether he or she initially accessed such material intentionally or not.
        The percentage of Web pages on the indexed Web containing sexually explicit content is relatively small.  Recent estimates indicate that no more than 1-2% of the content on the Web is pornographic or sexually explicit.  However, the absolute number of Web sites offering free sexually explicit material is extremely large, approximately 100,000 sites.
-- ALA v. United States, CA No. 01-1303 Finding of Fact: Internet (EDPA May 31, 2002)

Government Interest:  Pornography and Children

². When this litigation commenced in 1998, "[a]pproximately 70.2 million people of all ages use[d] the Internet in the United States." App. 171. It is now estimated that 115.2 million Americans use the Internet at least once a month and 176.5 million Americans have Internet access either at home or at work. See More Americans Online, New York Times, Nov. 19, 2001, p. C7.

 Problem of Filters

Mainstream Loudoun v. Board of Trustees of the Loudon County Library Civil Action No. 97-2049-A (ED Va 1998) ("unconstitutional for library to impose filtering software on all users, including adult users.")

 Communications Decency Act

The amendments made by the CDA have been declared unconstitutional. ACLU v. Reno, 929 F.Supp. 824 (EDPa 1996); Shea v. Reno, 930 F.Supp. 916 (S.D.N.Y. 1996). See also Robert Cannon, Communications Decency Act Declared Unconstitutional, FCBA News (September 1996) (discussing court decision).
 

Children's Online Protection Act

"any communication, picture, image, graphic image file, article, recording, writing, or other matter of any kind that is obscene or that
"(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;
"(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post pubescent female breast; and
"(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors." 47 U.S.C. § 231(e)(6).

^3. The statute provides that "[a] person shall be considered to make a communication for commercial purposes only if such person is engaged in the business of making such communications." 47 U.S.C. § 231(e)(2)(A) (1994 ed., Supp. V). COPA then defines the term "engaged in the business" to mean a person:

"who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, devotes time, attention, or labor to such activities, as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities (although it is not necessary that the person make a profit or that the making or offering to make such communications be the person's sole or principal business or source of income)." § 231(e)(2)(B).

COPA History

Childrens Internet Protection Act CIPA

The Children’s Internet Protection Act (“CIPA”) was enacted as part of the Consolidated Appropriations Act of 2001, which consolidated and enacted several appropriations bills, including the Miscellaneous Appropriations Act, of which CIPA was a part.  See Pub. L. No. 106-554.  CIPA addresses three distinct types of federal funding programs: (1) aid to elementary and secondary schools pursuant to Title III of the Elementary and Secondary Education Act of 1965, see CIPA § 1711 (amending Title 20 to add § 3601); (2) LSTA grants to states for support of libraries, see CIPA § 1712 (amending the Museum and Library Services Act, 20 U.S.C. § 9134); and (3) discounts under the E-rate program, see CIPA § 1721(a) & (b) (both amending the Communications Act of 1934, 47 U.S.C. § 254(h)).  Only sections 1712 and 1721(b) of CIPA, which apply to libraries, are at issue in this case.
      As explained in more detail below, CIPA requires libraries that participate in the LSTA and E-rate programs to certify that they are using software filters on their computers to protect against visual depictions that are obscene, child pornography, or in the case of minors, harmful to minors.  CIPA permits library officials to disable the filters for patrons for bona fide research or other lawful purposes, but disabling is not permitted for minor patrons if the library receives E-rate discounts.
        a.   CIPA’s Amendments to the E-rate Program
    Section 1721(b) of CIPA imposes conditions on a library’s participation in the E-rate program.  A library “having one or more computers with Internet access may not receive services at discount rates,” CIPA § 1721(b) (codified at 47 U.S.C. § 254(h)(6)(A)(i)), unless the library certifies that it is “enforcing a policy of Internet safety that includes the operation of a technology protection measure with respect to any of its computers with Internet access that protects against access through such computers to visual depictions that are – (I) obscene; (II) child pornography; or (III) harmful to minors,” and that it is “enforcing the operation of such technology protection measure during any use of such computers by minors.”  CIPA § 1721(b) (codified at 47 U.S.C. § 254(h)(6)(B)).   CIPA defines a “technology protection measure” as “a specific technology that blocks or filters access to visual depictions that are obscene, . . . child pornography, . . . or harmful to minors.”  CIPA § 1703(b)(1) (codified at 47 U.S.C. § 254(h)(7)(I)).
        To receive E-rate discounts, a library must also certify that filtering software is in operation during adult use of the Internet.  More specifically, with respect to adults, a library must certify that it is “enforcing a policy of Internet safety that includes the operation of a technology protection measure with respect to any of its computers with Internet access that protects against access through such computers to visual depictions that are – (I) obscene; or (II) child pornography,” and that it is “enforcing the operation of such technology protection measure during any use of such computers.”  CIPA § 1721(b) (codified at 47 U.S.C. § 254(h)(6)(C)).  Interpreting the statutory terms “any use,” the FCC has concluded that “CIPA makes no distinction between computers used only by staff and those accessible to the public.”  In re Federal-State Joint Board on Universal Service: Children’s Internet Protection Act, CC Docket No. 96-45, Report and Order, FCC 01-120,  30 (Apr. 5, 2001).
        With respect to libraries receiving E-rate discounts, CIPA further specifies that “[a]n administrator, supervisor, or other person authorized by the certifying authority . . . may disable the technology protection measure concerned, during use by an adult, to enable access for bona fide research or other lawful purpose.”  CIPA §1721(b) (codified at 47 U.S.C. § 254(h)(6)(D)).
                                  b.   CIPA’s Amendments to the LSTA Program
        Section 1712 of CIPA amends the Museum and Library Services Act (20 U.S.C. § 9134(f)) to provide that no funds made available under the Act “may be used to purchase computers used to access the Internet, or to pay for direct costs associated with accessing the Internet,” unless such library “has in place” and is enforcing “a policy of Internet safety that includes the operation of a technology protection measure with respect to any of its computers with Internet access that protects against access through such computers to visual depictions” that are “obscene” or “child pornography,” and, when the computers are in use by minors, also protects against access to visual depictions that are “harmful to minors.”  CIPA § 1712 (codified at 20 U.S.C. § 9134(f)(1)).  Section 1712 contains definitions of “technology protection measure,” “obscene,” “child pornography,” and “harmful to minors,” that are substantially similar to those found in the provisions governing the E-rate program.  CIPA § 1712 (codified at 20 U.S.C. § 9134(f)(7)); see also supra note 2.
         As under the E-rate program, “an administrator, supervisor or other authority may disable a technology protection measure . . . to enable access for bona fide research or other lawful purposes.”  CIPA § 1712 (codified at 20 U.S.C. § 9134(f)(3)).  Whereas CIPA’s amendments to the E-rate program permit disabling for bona fide research or other lawful purposes only during adult use, the LSTA provision permits disabling for both adults and minors.
-- ALA v. United States, CA No. 01-1303 Finding of Fact II.A.2. (EDPA May 31, 2002) http://www.paed.uscourts.gov/documents/opinions/02D0415P.HTM

 Library Internet Access = Public Forum = Strict Scrutiny

 Strict Scrutiny

Ownership Restrictions

1. Traditionally, Congress and the Commission have imposed various cross-ownership restrictions that prohibit owners of certain communictions companies from owning interests in other types of communications companies (or that prohibit communications companies from providing two types of services within a certain geographic area). Courts generally consider these type of restrictions to be non-conent based restrictions and therefore review these types of restrictions under intermediate scrutiny. See, e.g., US West, Inc. v. United States, 48 F.3d 1092 (9th Cir. 1995) (invalidating under intermediate scrutiny the provision prohibiting telephone companies from providing video programming to subscribers within their service areas), vacated as moot, 116 S.Ct. 1037 (1996); Chesapeake and Potomac Telephphone Co. v. United States, 42 F.3d 181, 192 (4th cir. 1994) (same), vacated as moot, 116 S.Ct. 1036 (1996). In contrast, the rational basis test is applicable where cross-ownership rules implicate broadcast concerns (e.g., scarcity) or where certain restrictions are the equivalent of economic regulation. See FCC v. Nattional. citizens Committee for Broadcasting, 436 U.S. 775, 802 (1978) (holding newspaper-broadcast cross-ownership regulations to be valid under the First Amendment as a "reasonable means of promoting the public interest in diversified mass communications"); Associated Press v. United States, 326 U.S. 1, 20 (1945) ("The First Amendment affords not the slightest support for the contention that a combination to restrain trade in news and views has any constitutional immunity"); Lorain Journal Co. V. United States, 342 U.S. 143 (1951).

• First Amendment Quotes

 

 
 
 
 
 
 
 
 
 

Over three hundred and fifty years ago, John Milton wrote:

Truth and Understanding are not such wares as to be monopolized and traded in by tickets, and statutes, and standards.   We must not think to mark and license it like our broadcloth and our woolpacks.
J. Milton, Areopagitica, For the Liberty of Unlicensed Printing (London 1644).
 
1. Source: Louis Ingelhard, Famous Quotes on the First Amendment, First Amendment Cyber-Tribue (Last modified August 10, 1995, visited November 22, 1996) <http://w3.trib.com/FACT/1st.quotes.html>
1. Thomas Jefferson, 1786 "Our liberty depends on the freedom of the press, and that cannot be limited without being lost."
2. James Madison, 1798 "The Sedition Act was unconstitutional. ... The First Amendment was intended to supersede the common-law on speech and press. Freedom guaranteed by the amendment was absolute as far as the federal government was concerned because it could not be abridged by any United States Authority."
3. Ulysses S. Grant, 1875 "Leave the matter of religion to the family altar, the church, and the private school, supported entirely by private contributions. Keep the church and the state forever separate. "
4. Theodore Roosevelt, 1918 "Free speech, exercised both individually and through a free press, is a necessity in any country where people are themselves free."
5. Calvin Coolidge, 1925 "It is the ferment of ideas, the clash of disagreeing judgments, the privilege of the individual to develop his own thought and shape his own character which makes progress possible."
6. Herbert Hoover, 1929 "Absolute freedom of the press to discuss public questions is a foundation stone of American liberty."
7. Franklin Delanor Roosevelt, 1938 "If the fires of freedom and civil liberties burn low in other lands, they must be made brighter in our own. If in other lands the press and books and literature of all kinds are censored, we must redouble our efforts here to keep them free. If in other lands the eternal truths of the past are threatened by intolerance, we must provide a safe place for their perpetuation."
8. Harry S Truman, 1950 "There is no more fundamental axiom of American freedom than the familiar statement: In a free country we punish men for crimes they commit but never for the opinions they have."
9. Dwight D. Eisenhower, 1953 "Don't join the burners. Don't be afraid to go to your library and read every book, as long as any document does not offend your own ideas of decency; that should be your only censorship. "
10. John F. Kennedy, 1962 "We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is afraid of its people."
11. Lyndon B. Johnson, 1966 "Opinion and protest are the life breath of democracy - even when it blows heavy."
12. Richard Nixon, 1973 "It was the system that brought to light the facts [about Watergate] and that will bring those guilty to justice - a system that in this case included a determined grand jury, a courageous judge and a vigorous free press."
13. Jimmy Carter, 1981 "America did not invent human rights. In a very real sense, human rights invented America."
14. Ronald Reagan, 1985 "There can be no greater good than the quest for peace, and no finer purpose than the preservation of freedom."
15. Justice Oliver Wendell Holmes quotes
1. But the character of every act depends upon the circumstance in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. _ opinion in Schenck v. United States, 1919
2. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While the experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States through many years had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, "Congress shall make no law ... abridging the freedom of speech." _ dissent in Abrams v. United States, 1919
3. "Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. . . . Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, 'Congress shall make no law abridging the freedom of speech.' . . . I regret that I cannot put into more impressive words my belief that in their conviction upon this indictment the defendants were deprived of their rights under the Constitution of the United States." _ dissent in Abrams v. United States, 1919
4. Every idea is an incitement. It offers itself to belief and if believed is acted upon unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrowest sense is the speaker's enthusiasm for the result; eloquence may set fire to reason. ... The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word liberty as there used. If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way. Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from bondage of irrational fear. _ dissent in Gitlow v. State of New York, 1925
5. If there is any principle of the constitution that more imperatively calls for attachment more than any other, it is the principle of free thought - not for free thought for those who agree with us, but freedom for the thought we hate. _ dissent in U.S. v. Schwimmer, 1929

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