Cybertelecom Federal Internet Law & Policy An Educational Project

Free Speech & Internet Censorship

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. -- First Amendment to the US Constitution

Although children can use the Internet to tap into the Library of Congress or download pictures from the surface of Mars, not all of the material on the Internet is appropriate for children. As a parent, you can guide and teach your child in a way that no one else can. You can make sure that your child's experience on the Internet is safe, educational and enjoyable. - President Bill Clinton (1997).

Since 1996, every Congressional session has passed at least one piece of legislation attempting to censor the Internet, almost always in the name of protecting the youth of America.  The first such attempt came with Sen Exon's Communication's Decency Act (CDA), passed as an amendment to the Telecommunications Act of 1996.  The CDA constituted both the worst and the brightest moment in Internet legal history.  It was the worst moment in that the legislation was so wrong headed, so ignorant of the technology it sought to regulate, and so unconstitutional that it was overturned by a unanimous U.S. Supreme Court.  It also constituted a bright moment in legal history in that it cause the US legal system, at an early point of Internet development, to stop and reflect on the importance of the Internet for free speech in our society.  The declaration that "the Internet is a never ending market place of ideas" set the tone of the policy debate to come for many years.

The CDA has been followed by a flurry of other mostly unsuccessful attempts: The Children's Online Protection Act, also known as the Son of the CDA, has suffered under the judgment of "unconstitutional" almost from the beginning. The Child Pornography Prevention Act, seeking to apply child porn laws to the digital age, hit a problem when there was no child involved and the content was not obscene. The Children's Internet Protection Act has faired better, conditioning the use of Erate by Schools and Libraries upon the use of filters.

In the mean time, the role of ISPs as Internet Police increased. And some stuff is so bad it has always been illegal.

Government Activity

• NTIA NOI Global Free Flow of Information on the Internet
  • Comments Due Nov. 15, 2010
  • The Department of Commerce's Internet Policy Task Force is examining issues related to the global free flow of information on the Internet. Specifically, the Department seeks public comment from all stakeholders, including the commercial, academic, and civil society sectors, on government policies that restrict information flows on the Internet. The Task Force seeks to understand why these restrictions have been instituted; what, if any, impact they have had on innovation, economic development, global trade and investment; and how best to address negative impacts. After analyzing the comments responding to this Notice, the Department intends to publish a report which will contribute to the Administration's domestic policy and international engagement on these issues.... Online submissions in electronic form may be sent to freeflow-noi- 2010@ntia.doc.gov.
• REMARKS OF COMMISSIONER JONATHAN S. ADELSTEIN, POINTSMART.CLICKSAFE. SUMMIT ON CHILDREN'S ONLINE SAFETY AND LITERACY.  CMMR. PointSmart.ClickSafe: Summit on Children's Online Safety and Literacy June 10, 2008 | DOC | PDF | TXT |
• House Commerce Hearing: Images Kids See on the Screen June 22, House 6/19/2007
• New Global Internet Freedom Task Force Established
  Under Secretary Shiner (Feb. 14): "The U.S. Government and the State Department have been on the front of the battle to ensure global access to information through the internet." watch | listen
• House Comm on Govt Reform: Pornography on the Internet, Cong 7/27/01
• Canadian Govt:  Illegal and Offensive Content on the Internet
• Remarks By MICHAEL K. POWELL Commissioner Federal Communications Commission Before the Media Institute  Acceptance Speech for the Freedom of Speech Award Washington, D.C. October 20, 1999
• Mar 28 Sen. Health Comm  Children and Families Subcommittee: Children Safety and the Internet
• IFEA Letter to Ch Kennard asking for a more balanced presentation on Internet filtering.  5/13/1999.
• Chairman Kennard Announces Launch of "Parents, Kids, and Communications Page" on FCC Website in Remarks at the Annenberg Public Policy Center Conference on Internet and the Family in Washington, DC. [ Speech | News Release | Parents Information Page ] 5/4/99
• Internet Online Summit: Focus on Children July 1997

U.S. Statutes

• Online Version of the United States Code
• 47 U.S.C. § 223 Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications (Communications Act)
• 47 U.S.C. § 326 Censorship; Indecent Language
  • "Nothing in this Act shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication."
• 18 U.S.C. § 1460. Possession with intent to sell, and sale, of obscene matter on Federal property.
• 18 U.S.C. § 1462. Importation or transportation of obscene matters
• 18 U.S.C. § 1464. Broadcasting obscene language.
• 18 U.S.C. § 1465. Transportation of obscene matters for sale or distribution.
• 18 U.S.C. § 1466. Engaging in the business of selling or transferring obscene matter.
• 18 U.S.C. § 1467. Criminal forfeiture
• 18 U.S.C. § 2251. Sexual exploitation of children
• 18 USC § 2252C Misleading Words or Digital Images on the Internet
• 18 U.S.C. § 2510. Definitions

Federal Regulations

• Online copy of the Code of Federal Regulations
• 47 C.F.R. § 64.201 Restrictions on indecent telephone message services.
• 47 C.F.R. § 73.3999 Enforcement of 18 U.S.C. 1464 (restrictions on the transmission of obscene and indecent material).
• 47 C.F.R. § 73.4165 Indecent broadcasts.
• 47 C.F.R. § 73.4170 Obscene broadcasts.
• 47 C.F.R. § 76.227 Blocking of indecent sexually-oriented programming channels.
• 47 C.F.R. § 76.701 Leased access channels.
• 47 C.F.R. § 76.971 Commercial leased access terms and conditions.
• 47 C.F.R. § 95.181 Permissible communications (General Mobile Radio Service)
• 47 C.F.R. § 95.413 (CB Rule 13) What communications are prohibited? (Citizens Band, CB).
• 47 C.F.R. § 97.113 Prohibited transmissions (Amateur Radio).

International

• Universal Declaration of Human Rights, Article 19

Legislation

• DOPA
  • Justice Dept. defends mandatory Web-labeling bill, CNET 9/18/2006
• Internet Community Ports Act
  • See Network Neutrality: Port Blocking
  • Cheryl Preston, Making Family-Friendly Internet a Reality: The Internet Community Ports Act , Brigham Young University Law Review, Vol. 2007, pp. 1471-1533 Available at SSRN: http://ssrn.com/abstract=1146651
  • Utah backs calls to boot porn from Port 80, Register 3/21/2007
  • Utah Legislature Repeals Part of Internet Censorship Law, CDT 3/21/2007
  • CP80 Foundation Lauds Resolution to "Protect Children from Internet Pornography" as a Step in the Right Direction, eMediaWire 3/14/2007
  • Utah Legislators Considering 'Porno Ports' to Access Mature Content, KSL TV 1/23/2007

Webcasts & Podcasts

• May 6 House Hearing Online Pornography: Closing the Doors on Pervasive Smut
• "Internet Filters' Affect on Online Health Information", Kaiser  Dec 2002
• The Great Firewall of China - Internet Filtering and Free Expression: Will Doherty, Ben Edelman, Kimberley Heitman, Kijoong Kim and Arturo Quirantes CFP2003
• Beyond LICRA v. Yahoo Free Speech In A World Without Borders: Ann Brick, Christopher Chiu, Claire Kelly, Cedric Laurant, Paul Levy and Mary Wirth. CFP2003
• Internet Architecture & Free Speech: Paula H. Ford, Jeff Chester,  Mike Schooler and Jay Stanley CFP2003
• NPR Justice Talking Censoring Cyberspace: Library Internet Filtering  Date: 10/15/2001
• NPR Justice Talking Cleanspeak: A Look at Web Censorship  Date: 7/13/1999
• The House Committee On  Energy and Commerce Hearing:  E-Rate and Filtering: A Review of the Children’s Internet Protection Act. April 4, 2001 Real Audio
• NPR Justice Talking  Indecency on the Airwaves Nov 11, 2002

Caselaw

• Doniger v. Niehoff, 2008 WL 2220680 (2nd Cir. May 29, 2008) (student used strong language on blog criticizing a school administrator for canceling a jamfest; school prohibited student from running for class secretary. Student sued for violation of first amendment. School held that comments which did not happen on school grounds created a foreseeable risk of substantial disruption at the school and therefore the school could discipline the girl).
• Urofsky v. Gilmore, 216 F.3d 401 (4th Cir. 2000)
• U.S. v. Thomas, 74 F. 3d 701 (6th Cir. 1996)
• J.S. v. Blue Mountain School District, (MD Pa September 2008) (student made a false and allegedly slanderous profile of principal on myspace; court rules that schools discipline of student of creation of profile did not violate students first amendmenr rights (once again showing that schools are afraid to practice what they teach))
• Langdon v. Google, Inc (D Del Mar 7, 2007)(holding that Google did not violate the First Amendment - Is not a state actor - when it refused to carry ads in its ad network that Google found objectionable)
• Murawski v. Pataki, 2007 U.S. Dist. LEXIS 72749 (S.D.N.Y. September 26, 2007) (defendant Yahoo! is not a government actor and therefore could refuse to post the emails of plaintiff, a political candidate, to its message boards)

Timeline

• 1625: "Virginia General Court convicted Richard Barnes of 'base and detracting speeches concerning the governor' and before banishing him from the colony, ordered both his arms broken, his body beaten, and his tongue 'bored through with an awl.'" [Starr p 56]

Papers

• Penny Nance: Online Pornography: Closing the Doors on Pervasive Smut. (criticizing P2P networks) Subcommittee on Commerce, Trade, and Consumer Protection May 6, 2004 10:00 AM (note - in July 2005 Penny Nance was hired by the FCC to the Office of Strategic Planning and Policy Analysis)
• Govt can't block porn sites, claim researchers, Bangkok Post 9/11/03
• Russell B. Weekes, Cyber-Zoning a Mature Domain: The Solution to Preventing Inadvertent Access To Sexually Explicit Content on the Internet?, V Jolt 5/14/03
• Racist and Xenophobic Content on the Internet - Problems and Solutions: Strategies to Tackle Racism and Xenophobia on the Internet - Where are we in Europe?, IJCLP 1/21/03
• A Parents Guide to Supervising a Child's Online Experience |
• CAIDA:  Internet Measurement: Myths about Internet data (5 dec 01) Myth: Most Internet file transfers are porn
• Jerry Berman and Daniel J. Weitzner, “Abundance and User Control: Renewing the Democratic Heart of the First Amendment in the Age of Interactive Media,” 104 Yale Law Journal 1619 (1995)

Books

• Sex, Laws, and Cyberspace : Freedom and Censorship on the Frontiers of the Online Revolution by Jonathan Wallace, Mark Mangan (Contributor)
• Computer and Internet Use on Campus: A Legal Guide to Issues of Intellectual Property, Free Speech, and Privacy by Constance S. Hawke
• Pornography : Private Right or Public Menace? by Robert M. Baird (Editor), Stuart E. Rosenbaum (Editor) (1998)
• Sex on the Net: The Dilemma of Policing Cyberspace by Yaman Akdeniz
• The Parent's Guide to Protecting Your Children in Cyberspace by Parry Aftab
• Law of Internet Speech by Madeleine Schachter
• Justice Talking: Censoring the Web: Leading Advocates Debate Today's Most Controversial Issues by Kathryn Kolbert (Editor), Zak Mettger (Editor)
• Cyber Rights : Defending Free Speech in the Digital Age by Mike Godwin
• Internet and the First Amendment : Schools and Sexually Explicit Expressions by Fred H. Cate
• Filters & Freedom 2.0: Free Speech Perspectives on Internet Content Controls

Links

• American Civil Liberties Union
• American Library Association, Challenged and Banned Books
• Censorware Project
• Center for Democracy and Technology
• Common Sense Media
• FCC
  • Enforcement
  • Obscene Profane & Indecent Broadcasts
  • V Chip
• Freedom Forum
• Internet Content Rating Association
• LII First Amendment an overview
• Media Access Project: Protecting Free Speech
• Peace Fire Youth Alliance Against Internet Censorship
• Public Citizen: The Litigation Group: Internet Free Speech
• SurfWatch Home Page
• Censorship and the Internet

News & Blogs

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