The First Amendment - 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.
The United States Supreme Court has extended this to include a prohibition against the States’ making laws limiting freedom of speech and of the press (which is included in the constitution of most states.
Every citizen may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. --- Article 1, Section 8, New York State Constitution
Section 20. Freedom of press. The liberty of the press being essential to the security of freedom in a state, any person may publish sentiments on any subject, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be sufficient defense to the person charged.
Section 21. Right to assemble Redress of grievances Freedom of speech. The citizens have a right in a peaceable manner to assemble for their common good, and to apply to those invested with the powers of government, for redress of grievances, or for other purposes, by petition, address, or remonstrance. No law abridging the freedom of speech shall be enacted. ---From Article 1 of the Rhode Island State Constitution
Paragraph V. Freedom of speech and of the press guaranteed.
No law shall be passed to curtail or restrain the freedom of speech or of the press. Every person may
speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that
liberty.
Paragraph VI. Libel.
In all civil or criminal actions for libel, the truth may be given in evidence; and, if it
shall appear to the trier of fact that the matter charged as libelous is true, the party
shall be discharged.
---From Article I, Section 1 of the Georgia State Constitution
The freedoms of the press and of speech have been expanded by Court ruling to cover a general freedom of expression and to express our opinions in a variety of ways (including burning the flag) and over a variety of media (including radio, television and the Internet).
In a landmark 1997 decision, the Supreme Court ruled that the Internet is a unique medium entitled to the highest protection under the free speech protections of the First Amendment to the US Constitution. This gives the Internet same free speech protection as print. The Internet is the first electronic media to achieve this because of low barriers to access, abundance, many speakers, no gatekeepers.
The Court struck down the Communications Decency Act (CDA), Congress' first attempt to censor speech online. Writing for the court, Justice John Paul Stevens held that "the CDA places an unacceptably heavy burden on protected speech" and found that all provisions of the CDA are unconstitutional as they apply to "indecent" or "patently offensive" speech. In a separate concurrence, Chief Justice William Rhenquist and Justice Sandra Day O'Connor agreed that the provisions of the CDA are all unconstitutional except in their narrow application to "communications between an adult and one or more minors."
The Communications Decency Act was passed in February 1996. The CDA imposed broadcast-style content regulations on the open, decentralized Internet and severely restricted the first amendment rights of all Americans. CDT strongly opposed this legislation because it threatened the very existence of the Internet as a means for free expression, education, and political discourse. Although well intentioned, the CDA was ineffective and failed to recognize the unique nature of this global, decentralized medium.
The CDA prohibited posting "indecent" or "patently offensive" materials in a public forum on the Internet -- including web pages, newsgroups, chat rooms, or online discussion lists. This would have included the texts of classic fiction such as the "Catcher in the Rye" and "Ulysees", the "7 dirty words", and other materials which, although offensive to some, enjoy the full protection of the First Amendment if published in a newspaper, magazine, or a book, or in the public square. It is also important to note that the CDA was not about child pornography, obscenity, or using the Internet to stalk children. These were already illegal under current law.
On Wednesday June 12, 1996 at 9:00 am, a panel of three federal judges in Philadelphia, PA granted the Citizens Internet Empowerment Coalition's (CIEC) request for a preliminary injunction against the Communications Decency Act (CDA). In a unanimous decision, the judges ruled that the CDA would unconstitutionally restrict speech on the Internet.
[http://www.cdt.org/speech/cda/]After the Supreme Court struck down the CDA, the Congress passed a newer law,
entitled the Child Online Protect Act. Its singular difference from the CDA is that it was
aimed at commercial distribution of material judged to be harmful to minor. This, too,
was opposed by the Civil Liberties lobby:
In Oct. 1998, Congress passed and President Clinton signed into law a new
"sequel" to the unconstitutional Communications Decency Act. This new
Internet censorship bill, the Child Online Protect Act (COPA, a.k.a. "CDA
II") would establish criminal penalties for any "commercial" distribution
of material deemed "harmful to minors". The numerous problems with this
legislation include overbreadth, vagueness of definitions of key terms
such as "commercial", an illegal attempt to force adults to give up
privacy to excerise their right to read, prior restraints on publication,
and a flawed "community standards" approach that would allow the most
conservative jurisdiction in the US country to set the "decency" standards
for all Web content nationally (indeed, globally).
Just days after passage of this legislation, EFF in conjunction with the
ACLU and EPIC (two other civil liberties organizations) filed a lawsuit
challenging the constitutionality of this law and seeking to have it
overturned. In 1999, A federal District Court issued a preliminary
injunction against enforcement of the law, on the grounds that it is
probably unconstitutional. On June 22, 2000, the Third Circuit Court of
Appeals upheld the injunction.
Martin Rimm, a 1995 graduate of Carnegie Mellon University did an 18-
month study of cyberporn and determined that pornography was prevalent on the
Internet. The following comes from a draft of his abstract:
As Americans become increasingly computer literate, they are discovering
an unusual and exploding repertoire of sexually explicit imagery on the
Usenet and on "adult" computer bulletin board services (BBS). Every time
they log on, their transactions assist pornographers in compiling
databases of information about their buying habits and sexual tastes. The
more sophisticated computer pornographers are using these databases to
develop mathematical models to determine which images they should try to
market aggressively. They are paying close attention to all forms of
paraphilia, including pedophilic, bestiality, and urophilic images,
believing these markets to be among the most lucrative. They are using the
Usenet to advertise their products, and maintaining detailed records of
which images are downloaded most frequently.
Modem technology also enables researchers, for the first time, to use
computers to acquire vast amounts of information about the distribution
and consumption of pornography on a scale hundreds of times larger than
previously established methods. Because BBS pornographers rely primarily
upon verbal descriptions to market their images, researchers can develop
computer programs that classify these descriptions according to category
(e.g. oral, anal, vaginal, sadomasochism, etc.). The descriptions may be
sorted by frequency of downloads (consumer demand), size, and the date on
which each image was first posted onto the bulletin boards. What is even
more useful, the data can be easily reanalyzed under many different sets
of definitions and assumptions. This multidimensional characteristic of
digital pornography enables researchers to provide unbiased information to
those involved in the heated public policy debate over pornography.
The research team at Carnegie Mellon University has undertaken the first
systematic study of pornography on the Information Superhighway. The study
is also the first ever - whether print media or electronic - to track
detailed purchasing habits of consumers of sexually explicit materials.
All prior studies have assumed that those surveyed about their sexual
tastes would offer honest replies, while this study focuses entirely upon
what people actually consume, not what they say they consume. This proved
particularly important when analyzing such taboo imagery as incest,
bestiality, coprophilia, urophilia, and torture.
All available pornographic images from five popular Usenet boards were
downloaded over a six month period. In addition, descriptive listings were
obtained from 68 commercial "adult" BBS located in 32 states. These lists
described 450,620 pornographic images, animations, and text files which
had been downloaded by consumers 6,432,297 times, from 35 "adult" BBS;
(approximately) 75,000 for which only partial download information was
available, from six "adult" BBS; and another 391,790 for which no consumer
download information was available, from 27 "adult" BBS. Finally,
approximately 10,000 actual images were randomly downloaded or obtained
via the Usenet or CD-ROM. These were used to verify the accuracy of the
written descriptions provided in the listings.
This article analyzes only the 450,620 images and descriptions for which
complete download information was available. A survey of the remaining
images and descriptions suggests no substantive differences between the
two datasets. At least 36% of the images studied were identified as having
been distributed by two or more "adult" BBS. These "duplicates" enable
researchers to compare how identical imagery is consumed on commercial BBS
in different regions of the country.
The work was quoted in Time (where it was the cover article) and Newsweek and
received enough attention that it led Congress to pass the CDA. The article in Time was
considered somewhat sensational in its description of the problem:
Sex is everywhere these days--in books, magazines, films, television,
music videos and bus-stop perfume ads. It is printed on dial-a-porn
business cards and slipped under windshield wipers. It is acted out by
balloon-breasted models and actors with unflagging erections, then rented
for $4 a night at the corner video store. Most Americans have become so
inured to the open display of eroticism--and the arguments for why it
enjoys special status under the First Amendment--that they hardly notice
it's there.
Something about the combination of sex and computers, however, seems to
make otherwise worldly-wise adults a little crazy. How else to explain the
uproar surrounding the discovery by a U.S. Senator--Nebraska Democrat
James Exon--that pornographic pictures can be downloaded from the Internet
and displayed on a home computer? This, as any computer-savvy undergrad
can testify, is old news. Yet suddenly the press is on alert, parents and
teachers are up in arms, and lawmakers in Washington are rushing to ban
the smut from cyberspace with new legislation--sometimes with little
regard to either its effectiveness or its constitutionality.
If you think things are crazy now, though, wait until the politicians get
hold of a report coming out this week. A research team at Carnegie Mellon
University in Pittsburgh, Pennsylvania, has conducted an exhaustive study
of online porn--what's available, who is downloading it, what turns them
on--and the findings (to be published in the Georgetown Law Journal) are
sure to pour fuel on an already explosive debate.
The study, titled Marketing Pornography on the Information Superhighway,
is significant not only for what it tells us about what's happening on the
computer networks but also for what it tells us about ourselves.
Pornography's appeal is surprisingly elusive. It plays as much on fear,
anxiety, curiosity and taboo as on genuine eroticism. The Carnegie Mellon
study, drawing on elaborate computer records of online activity, was able
to measure for the first time what people actually download, rather than
what they say they want to see. "We now know what the consumers of
computer pornography really look at in the privacy of their own homes,"
says Marty Rimm, the study's principal investigator. "And we're finding a
fundamental shift in the kinds of images they demand."
What the Carnegie Mellon researchers discovered was:
[ Philip Elmer-DeWitt , “On A Screen Near You: Cyberporn”, TIME,
July 3, 1995, downloaded from
http://www.eff.org/Censorship/Rimm_CMU_Time/time_cyberporn.articles]
Many scholars who have studied his work found flaws in his research
methodology:
It seems indisputable that the study to which Carnegie Mellon University
lends its name and its credibility contains disturbing ethical lapses.
These lapses seem sufficiently serious that they should be of concern to
both the CMU administration and to social scientists and computer
professionals elsewhere. If the methodology of the study is correct as
described in the GLJ article, and if the medias' reporting of the comments
of the study's principal investigator are accurate, then the Carnegie
Mellon study violates fundamental canons against deceptive data gathering,
informed consent, and revelation of potentially harmful information.
There are real reasons to be concerned about online pornography:
The Internet has provided different ways for hate groups and lone bigots to spread
their message of hate. Some maintain web sites, some maintain private electronic
bulletin board services, others post on Usenet. In any case, it has been way to spread hate
anonymously:
The Internet has provided the means for those on the far-right to create
an "electronic community of hate."
There are three important, measurable respects in which the "electronic
community of hate” strengthens the work of right-wing extremists offline.
The Internet:
These consequences of right-wing extremism on the Internet should be of
concern to us all.
Online, racists, anti-Semites, and anti-government extremists can reach a
much larger audience than ever before. Anyone using the Internet may
inadvertently be exposed to hate online.
Hate on Usenet can take different forms, including posting on racist content on ethnic groups such as soc.culture.jewish (which eventually led to the moderated newsgroup soc.culture.jewish.moderated) to separate groups aimed at racists such as alt.n****rs.
Both Canada and Germany have laws that makes hate speech a crime, if its aim is
to spread hatred of an ethnic, racial or religious group. Hate speech is considered
protected speech under the First Amendment according to several federal court rulings.
U.S. won't support Net "hate speech" ban WASHINGTON--The Bush administration said on Friday that it will not support
a proposed treaty to restrict "hate speech" on the Internet.
Last week, the Council of Europe approved an addition to a controversial
computer crime treaty that would make it illegal to distribute or publish
anything online that "advocates, promotes or incites hatred (or)
discrimination."
The United States has supported the underlying treaty, which is designed to
encourage other countries to enact computer crime and intellectual property
laws, but opposes adding the "hate speech" ban. The ban is titled an
"Additional Protocol to the Convention on Cybercrime."
"The important thing to realize is that the U.S. can't be a party to any
convention that abridges a constitutional protection," said Drew Wade, a
spokesman for the U.S. Justice Department.
Wade said that the U.S. Constitution's First Amendment, which guarantees
freedom of speech, prohibits the administration from endorsing last week's
vote by the Council of Europe.
According to a long line of U.S. Supreme Court rulings, "hate speech" is
generally protected by the First Amendment. There are relatively narrow
exceptions that allow the government to ban threats, words designed to
"incite an immediate breach of the peace" that are directed at an
individual, and words that are intended to provoke "imminent lawless
action."
Last modified: November 15, 2002, 9:47 AM PST
By Declan McCullagh
Staff Writer, CNET News.com