Free Speech On The Internet
Case Study: Zeran v. America Online
Ken Zeran was defamed by an unknown AOL subscriber who made several posting on AOL advertising that Zeran had for sale certain tasteless t-shirts regarding the bombing of the Alfred P. Murrah Building in Oklahoma City, and which listed the telephone number from which he ran his home based business. He was inundated with telephone complaints and death threats. AOL removed the postings and cancelled the account of the unknown poster. Zeran sued AOL for defamation. The U.S. District Court for the Eastern District of Virginia at Alexandria dismissed the complaint. Zeran appealed to the Court of Appeals for the 4th Circuit. The Appeals Court affirmed the lower court's decision. Zeran appealed to the Supreme Court, which denied his Petition for Writ of Certiorari.
AOL was eventually exonerated in the case. The Supreme Court noted section 230 of the Communications Decency Act which states "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider"
The appeals court in this case wrote "Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum."
Sex, the First Amendment and the Internet
The CDA or Communications Decency Act also contained a couple of very important provisions that severely limited free speech. These provisions were added late in the development of the act and without proper congressional hearings. The provision described as the "indecent transmission" and "patently offensive" provisions sparked civil rights lawsuits that the supreme court settles.
The civil rights suits were brought against these provisions because the definitions of "indecent" and "patently offensive were too broad and limited the average adults freedom of speech.
Shortly after these provisions were shot down by the supreme court a new law was drafted. The New law, was called The Child Online Protection Act (COPA). (note: this law is different from COPPA, the law discussed earlier regarding the privacy of children's personal information).
COPA readdressed the idea of protecting children from harmful material on the internet. The law was carefully drafted to avoid the ambiguous definitions of the CDA and try and offer protections while complying with first amendment rights. COPA sometimes refereed to as CDA2 was built around this statement:
"Whoever knowingly and with knowledge of the character of the material, in interstate of foreign commerce by means of the World Wide Web, makes any communication for commercial purposes that is available to any minor and that includes any information that is harmful to minors shall be fined not more than $50,000, imprisoned not more than 6 months or both."
To further avoid the vagueness of the CDA COPA defined "material that is harmful to minors" according to already established standards of obscenity. COPA defines this as:
- the average person, applying contemporary community standards, would find, taking the material as a hole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest
- 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
- taken as a whole, lacks serious literary, artistic, political or scientific value for minors
Again this law was challenged by civil rights groups such as the ACLU. The challenges cited ambiguous language again. Specifically "contemporary community standards". Since different communities would have different standards as to what was obscene or inappropriate for minors the law was deemed unenforceable by the Third Circuit because it was impossible for a web publisher to distribute material based on geographic location. However the case made it to the Supreme Court who questioned the Third Circuits reasoning behind the injunction. The case made it to the Supreme Court who questioned the Third circuits reasoning behind the injunction, but did not lift the injunction. The Supreme Court left it to the appeals court to decide whether or not the injunction should b e lifted and that is where COPA rests today. It is still unenforceable and in legal proceedings.
These rulings make it clear that as a web-surfer you will be able to find sexually explicit material on the internet. It also means that you will be able to find photos of testicular cancer or breast cancer if you need to. Or read stories of infertility, join rape or incest support groups on the internet or any number of potentially sexually explicit, but helpful situations.
This by no means allows an "anything goes" attitude about sex on the internet. There are still International and U.S. laws about child pornography. Several operations have been launched which netted a variety of people who engaged in the depiction or transmission of child pornography. All existing laws regarding obscenity and decency still apply and you must comply with them.
Message Board Misconduct and Online Anonymity
Message Boards, forums, web sites and many other mediums on the internet allow for an open door into individuals being able to post anonymous material that could defame an individual, company or corporation. This raises many questions. How does a company deal with these statements and stop them? How do ISP's protect themselves from lawsuits regarding these anonymous posters? How does the poster protect himself from financial loss or lawsuits regarding his statements? and finally how do the courts protect legitimate free speech while also holding anonymous individuals liable for wrongful speech?
The answers are found within court cases, contracts, and technology. This is a constantly changing field and the answers provided here could change at any time. Check out recent cases to decide what the most current answers are.
Legal Causes of Action
Suits regarding message board posters can fall under several different legal theories. On common theory is defamation, That is, published intentional false communication that injures a person's or company's good name or reputation. Sometimes if the poster is an employee other legal theories can be brought in the suit, including breach of fiduciary duty. If the poster is a competitor the legal course could include interference with business relations.
All of these methods require that the poster be identified. This requires swift technological and legal actions. A lawyer must use swift litigation to back track the IP (internet protocol) address which all internet surfers have when online. This can be very difficult since most people don't have a static IP Address. That is their IP Address can change with each session on-line. The ISP who assigns the IP Address usually doesn't keep a record of the address for long so this is why swift action should be taken if someone wants to find out the identity of a poster on the net.
Though early on many lawsuits were brought against ISP's to disclose this information many lawsuits failed because of the resistance of ISP's to disclose this information. Many free speech advocates objected and legal precedents that had already been mad clear were cited to protect people anonymity. Eventually the courts made several provisions which parties that seek to gain the identity of an anonymous poster must abide by.
As a result of a case in New Jersey the New Jersey courts held that parties seeking discovery to unmask an anonymous poster must:
- identify the unknown party with sufficient specificity to allow the court to decide if it has jurisdiction over the party
- identify all previous steps taken to locate the missing party and notify it of the lawsuit and the opportunity to object
- establish by proof to the court's satisfaction that the plaintiff's suit could withstand aa motion to dismiss. meaning that there must be a valid claim
- make a showing justifying why the specific discovery requested is needed, and that the proposed recipients of the subpoena (such as ISP's) are both limited in number and reasonably calculated to produce the identities and whereabouts of the unknown defendants so legal process can be served to them
In another case in California, Pre-paid Legal Services v. Strurtz a Santa Clara Supreme Court Justice ruled that the posters' anonymity could not be breached by a subpoena absent a clear display of these conditions:
- relevant information about the anonymous poster is central to the claims of the party seeking the information
- Those claims are viable
- the party can not acquire the information another way
A Seattle case involving a request for discovery from the ISP Infospace ended up in a four part test that further tilted the scales in favor of free speech. The court laid out the test as:
- The subpoena must be shown not to have been issued in bad faith or for an improper purpose
- the information sought must relate to a core claim or defense in the case
- the material sought must be directly material or relevant to such a core claim or defense
- the information sought can not be obtained any other way
This doesn't mean that anyone can say whatever they want. The constitution does not provide any protection for libelous speech. Simply put the reason that plaintiffs have failed is because they haven't met these obligations set forth by the courts. Not because the suit is not meritous.
