Free Speech & Cyberspace: part 3

1. Free Speech & Cyberspace:part 3 Inciteful speech, hate speech, threatening speech Violence in Video Games

2. Foundations of Free Speech • Make careful reading of pp. 244-249 • Look thru the list of the kinds of speech people have wanted to control or suppress: • Meanings and definitions • protection or not & reasoning behind the choices. • (Not all of these are protected)

3. UNPROTECTED SPEECH:Speech that Incites • Incite: to encourage, bring about, to move to action • Kinds: • True Threats: http://www.firstamendmentcenter.org/n-y-judge-aggravated-harassment-law-%e2%80%98cries-out-to-be-reworked%e2%80%99 • Fighting words: intentionally directed at a listener with malice to cause listener to immediately retaliate. Their utterance inflicts injury and an immediate breach of peace

4. Old Standard: • p. 247-9 Clear and present danger rule from Schenck v. US (1919) • "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." • “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.”

5. New Standard: • Current test for speech that incites: • imminent lawless action test from Brandenburg v. Ohio(1969) • Intent, imminence, likelihood • “These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

6. Discussion Examples • Lady threatens cop • http://www.firstamendmentcenter.org/her-cop-cussing-ruled-fighting-words-not-free-speech • Threatening presidential candidate Obama on yahoo message board: • http://www.time.com/time/nation/article/0,8599,2084921,00.html • Terry Jones the Koran burning preacher • F* the Draft jacket: Cohen v. California, http://www.firstamendmentcenter.org/40-years-ago-a-ruling-that-still-rings-today • Tweets that threaten as free speech: 8,000 “troublesome” tweets at Alyce • http://venturebeat.com/2011/12/16/tweets-online-stalking/ • Flash mobs: • http://www.usatoday.com/news/nation/2011-08-18-flash-mobs-police_n.htm

7. Harassment & Bullying Issues • As Bullies Go Digital, Parents Play Catch-Up http://nyti.ms/hSQbkF • There’s Only One Way to Stop a Bully http://nyti.ms/9Yu0pY

8. Hate Speech • Hate Speech: speech that disparages a group based on a characteristic • In the United States, hate speech may be protected under the First Amendment. • Only hate speech that meets the imminent lawless action standard (likely to incite immediate violence, or a threat) is unprotected speech. • Planned Parenthood v. American Coalition of Life Activists (ACLA) • Nuremberg Files, abortion providers website. • In France and Germany, hate speech is illegal. • Note the use of US servers to bypass regulations.

9. More on Threatening Speech:The Jake Baker case Class discussion: case study materials Other resources for the Jake Baker case: • Timeline of US v. Bakerat wikipedia • Entry for Jake Baker at wikipedia • Archived resources: • http://www.mit.edu/activities/safe/safe/cases/umich-baker-story/Baker/Jake_Baker.html

10. Resolution of the Baker case • Charge against him for story about named classmate dropped. • The case against him (5 counts) for violating 18 USC 875 dismissed • Exchange of emails with Gonda detailing fantasy/plans for rape, torture murders • Was found that it was not a credible or “ true threat” • Was determined Baker was within 1st amendment writes to compose his “story/fantasy emails” since the stories were not a true threat

11. Questions for discussion • My ISP removed my post. Have my First Amendment rights been violated? • The forum moderator edited/removed my comments. Have my First Amendment rights been violated?

12. Private Censorship and First Amendment (pp. 260-262) • The First Amendment protects against government action. What if… • “If a private corporation gains sufficient power to effectively act like a government in censoring our speech, should the government intervene to protect the free speech rights of the general public?” • First Amendment interpretations: • Negative interpretation • (trending) • Affirmative interpretation • (was the mainstay)

13. Laws impacting communication conduits • Public forum doctrine • State must facilitate not discriminate • State Action Doctrine • Marsh v. Alabama (1946) • Fairness Doctrine • Fiduciary (trust) for public interest • Must carry doctrine • Common Carriage Doctrine

14. Misc. Free Speech Issue:Net Neutrality pp. 263-4 • What does that term mean? • Controversy in America • Divided FCC adopts rules to protect Web traffic http://usat.me?41894204

15. Private Censorship and the First Amendment Should broadband Internet providers be considered common carriers? Suppose e-mail were given the same protections as regular mail. Would that have any effect on your view of whether broadband Internet providers should be common carriers? Do you agree with Google’s argument that its search ordering is necessarily neutral? Ethics in a Computing Culture

16. Private Censorship and the First Amendment (continued) • Suppose a particular Web site is the cause for an extreme amount of traffic and one or more Internet providers block all traffic to and from that site in an effort to avoid delays for the rest of their customers. • Is this a legitimate curtailing of Internet traffic? Ethics in a Computing Culture

17. Violence in Video Games • Impact: • http://www.npr.org/2013/02/11/171698919/video-game-violence-why-do-we-like-it-and-whats-it-doing-to-us

18. Misc. Free Speech & Technology Issues: Video Games • See Case 7.6 pp. 249-50 • Does a state law that restricts the sale or rental of violent video games to minors comport with the First Amendment? • 2001 7th Circuit decision American Amusement Machine Assn v. Kendrick • Indianapolis ordinance limited access to minors of games depicting violence by requiring owners of facilities w/ 5 or more game machines to have a separate area w/ parent or guardian accompaniment. • Ordinance found to violate 1st Amendment. • Brown v. Entertainment Merchants US S Ct 2011 • 2005 California law, section I of the opinion • Note how the language tracks the Miller test for obscenity.

19. Brown v. Entertainment Merchants US S Ct 2011 • “… video games qualify for First Amendment protection.” • Why? Games communicate ideas & social messages using plot, characters, music • “Esthetic and moral judgments … are for individuals … not governments” US v. Playboy Entertainment US S Ct 2000 • “And whatever the challenges of applying the Constitution to ever-advancing technology, ‘the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary’ when a new and different medium for communication appears.” Burstyn v. Wilson US S Ct 1952

20. Brown cont’d • “The most basic of those principles is this: ‘[A]s a general matter, . . . government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’” Ashcroft v. American Civil Liberties Union US S Ct 2002 • Scalia lists the only acceptable areas for gov’t to restrict content of speech: obscenity, incitement, & fighting words. • Scalia says last term’s holding in Stevens precludes adding other categories that legislatures deem to harmful. • US v. Stevens: http://en.wikipedia.org/wiki/United_States_v._Stevens • No new categories by virtue of a “simple balancing test”

21. Brown cont’d • CA law is trying to shoehorn in by looking like it’s a permissible obscenity statute. • “Violence is not a part of the obscenity that the Constitution permits to be regulated.” • Obscenity is only concerned about depictions of sexual conduct. • Distinguishing Ginsberg

22. A New Category for Governmental Regulation of Speech? • No, there will be no new category of content-based restrictions directed at children. • Court notes that there has been no historic (successful) prohibition of violence in stories directed at children. • Fairy tales, high school reading lists • Comic books • Interactive argument? • Choose Your Own Adventure • Judge Posner (all literature as interactive)

23. Content Regulations holding • Content regulations subjected to strict scrutiny • Compelling gov’t interest • Narrowly tailored • Ct says California does not meet its burden show direct causal link between violent games and harm to minors. • Lasting measurable effects? no • About the same as tv viewing of violence, other violence

24. Violence in Video Games –Recent Updates • http://www.joystiq.com/2013/01/17/house-bill-proposes-fines-on-retail-games-without-esrb-ratings/ • http://www.joystiq.com/2013/01/17/dont-panic-missouri-lawmaker-proposes-violent-game-tax/