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The Thomas Jefferson Center for the Protection of Free Expression 1

Thomas Jefferson Center Constitution Day 2008: Free Speech in Cyberspace Robert M. O’Neil Director, Thomas Jefferson Center for the Protection of Free Expression rmo@virginia.edu http://www.tjcenter.org Educause Live Webcast September 17, 2008.

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The Thomas Jefferson Center for the Protection of Free Expression 1

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  1. Thomas Jefferson CenterConstitution Day 2008: Free Speech in CyberspaceRobert M. O’NeilDirector, Thomas Jefferson Center for the Protection of Free Expressionrmo@virginia.eduhttp://www.tjcenter.orgEducause Live WebcastSeptember 17, 2008 The Thomas Jefferson Center for the Protection of Free Expression 1

  2. The Supreme Court and Internet Speech ACLU v. Reno (1997) – Internet speech fully protected under the First Amendment; “Indecency” ban invalidated The Thomas Jefferson Center for the Protection of Free Expression 2

  3. The Supreme Court and Internet Speech • ACLU v. Reno (1997) – Internet speech fully protected under the First Amendment • Ashcroft v. Free Speech Coalition (2002) Congressional Ban on Virtual Child Pornography Invalid Under First Amendment The Thomas Jefferson Center for the Protection of Free Expression 3

  4. The Supreme Court and Internet Speech • ACLU v. Reno (1997) – Internet speech fully protected under the First Amendment • Ashcroft v. Free Speech Coalition (2002) Congressional Ban on Virtual Child Pornography Invalid Under First Amendment • United States v. Williams (2008) – Some forms of virtual child pornography regulation meet First Amendment standards The Thomas Jefferson Center for the Protection of Free Expression 4

  5. University Servers and Faculty Webpages • Examples of troubling content: the webpages of Professors Rasmussen (Indiana U.) Katz (Washington U.) and Butz (Northwestern U.) • Institutional Responses: Such content was treated as fully protected in all three cases The Thomas Jefferson Center for the Protection of Free Expression 5

  6. University Servers and Faculty Webpages • Examples of troubling content: the webpages of Professors Rasmussen (Indiana U.) Katz (Washington U.) and Butz (Northwestern U.) • Institutional Responses: Such content was treated as fully protected in all three cases • The case for a different view: The special impact of digital material, including instantaneous and worldwide dissemination Potential effect on students seeking course or other information Possible attribution or inference of institutional endorsement or acquiescence The Thomas Jefferson Center for the Protection of Free Expression 6

  7. University Servers and Faculty Webpages • Examples of troubling content: the webpages of Professors Rasmussen (Indiana U.) Katz (Washington U.) and Butz (Northwestern U.) • Institutional Responses: Such content was treated as fully protected in all three cases • The case for a different view: The special impact of digital material, including instantaneous and worldwide dissemination Potential effect on students seeking course or other information Possible attribution or inference of institutional endorsement or acquiescence • Potential alternatives for university policy: Limit to “official university business” any posting on such pages Require separation of “official” or course-related material from personal views Require disclaimers, warnings, etc. The Thomas Jefferson Center for the Protection of Free Expression 7

  8. The Challenge of “Invasive” or “Abusive” Sites Juicycampus.com invades the campus scene – examples, effects and suggested responses: Institutional condemnation of such postings Institutional intervention External efforts to regulate (e.g., New Jersey suggests possible consumer fraud claims) The Thomas Jefferson Center for the Protection of Free Expression 8

  9. The Challenge of “Invasive” or “Abusive” Sites • Juicycampus.com invades the campus scene – examples, effects and suggested responses: Institutional condemnation of such postings Institutional intervention External efforts to regulate (e.g., New Jersey suggests possible consumer fraud claims) • Postings on MySpace pose new risks on and off campus: Megan Meier’s suicide and charges against Lori Drew States consider and enact “cyberbullying” laws First Amendment concerns about such remedies The Thomas Jefferson Center for the Protection of Free Expression 9

  10. The Challenge of “Invasive” or “Abusive” Sites • Juicycampus.com invades the campus scene – examples, effects and suggested responses: Institutional condemnation of such postings Institutional intervention External efforts to regulate (e.g., New Jersey suggests possible consumer fraud claims) • Postings on MySpace pose new risks on and off campus: Megan Meier’s suicide and charges against Lori Drew States consider and enact “cyberbullying” laws First Amendment concerns about such remedies • More conventional but equally unwelcome postings: campuswatch.org, noindoctrination.org and other sites that target (notably) liberal professors The Thomas Jefferson Center for the Protection of Free Expression 10

  11. Cyber Victims Take Their Claims to Court • Back to the mid 1990s – original of civil liability claims against ISPs • Congress responds with CDA Section 230 The Thomas Jefferson Center for the Protection of Free Expression 11

  12. Cyber Victims Take Their Claims to Court • Back to the mid 1990s – original of civil liability claims against ISPs • Congress responds with CDA Section 230 • Courts interpret and apply section 230 as a total immunity for Internet Service Providers (ISPs) regarding material posted by others The Thomas Jefferson Center for the Protection of Free Expression 12

  13. Cyber Victims Take Their Claims to Court • Back to the mid 1990s – original of civil liability claims against ISPs • Congress responds with CDA Section 230 • Courts interpret and apply section 230 as a total immunity for Internet Service Providers (ISPs) regarding material posted by others • Fast forward to 2007-08: Questions arise about the scope of such ISP protection (is it an “immunity?) Universal Communications v. Lycos (First Circuit Courts of Appeals, 2/23/07) Global Royalties v. Xcentric Ventures (Dist. Ct. Ariz. 2/28/08) Chicago Lawyers Committee v. Craigslist (Seventh Circuit Court of Appeals, 3/14/08) Doe v. Friendfinder Network (Dist. Ct. N.H. 3/27/08) Fair Housing Council v. Roommate.com (Ninth Circuit Court of Appeals, 4/3/08) Doe v. MySpace, Inc. (Fifth Circuit Court of Appeals, 5/16/08) The Thomas Jefferson Center for the Protection of Free Expression 13

  14. The Special Challenge of “Unmasking” an Anonymous Cyber-Critic Posing the problem: If you can’t sue the ISP, and don’t know the identify of your enemy…. -- The First Amendment generally protects anonymous critics (from Thomas Paine on), but do the same rules apply here? The Thomas Jefferson Center for the Protection of Free Expression 14

  15. The Special Challenge of “Unmasking” an Anonymous Cyber-Critic • Posing the problem: If you can’t sue the ISP, and don’t know the identify of your enemy…. -- The First Amendment generally protects anonymous critics (from Thomas Paine on), but do the same rules apply here? • Early response of the courts: Protect those who enter an appearance but unmask those who don’t bother to appear The Thomas Jefferson Center for the Protection of Free Expression 15

  16. The Special Challenge of “Unmasking” an Anonymous Cyber-Critic • Posing the problem: If you can’t sue the ISP, and don’t know the identify of your enemy…. -- The First Amendment generally protects anonymous critics (from Thomas Paine on), but do the same rules apply here? • Early response of the courts: Protect those who enter an appearance but unmask those who don’t bother to appear • Three tests emerge in the mid 2000’s, taking into account possible alternatives to unmasking and the anonymous critic’s expectation of privacy: The plaintiff need only assert a “good faith claim” or demonstrate “probable cause” for liability The plaintiff need prove that its claims would on the merits survive a motion to dismiss A middle view: the plaintiff must clearly establish each element of a prima facie case. Doe v. Individuals (Dist. Ct. Conn. 6/13/08) adopts this view. The Thomas Jefferson Center for the Protection of Free Expression 16

  17. Restricting Access to Sexually Explicit Material on the Internet Early skirmishes: University libraries at Stanford, Carnegie-Mellon and Oklahoma treat sexually explicit material in digital form differently from salacious print material The Thomas Jefferson Center for the Protection of Free Expression 17

  18. Restricting Access to Sexually Explicit Material on the Internet • Early skirmishes: University libraries at Stanford, Carnegie-Mellon and Oklahoma treat sexually explicit material in digital form differently from salacious print material • Virginia passes a statute that bars most use of state-owned and state-leased computers to access such material • The Virginia law is challenged and upheld by the Federal Appeals Court • No other state follows Virginia’s example The Thomas Jefferson Center for the Protection of Free Expression 18

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