Computers, Information Technology, the Internet, Ethics, Society and Human Values
Philip Pecorino, Ph.D.
Queensborough Community College, CUNY
Chapter 4 Law: Freedom of Speech and Censorship
There are efforts to curtail or limit freedom of speech on the internet and there have been failures of such efforts as represented by the law known as the CDA in the USA. Commenting on such matters were many people including John Perry Barlow who issued the A Declaration of the Independence of Cyberspace What do you think of the declaration? Is it similar to being a foundational document such as the Declaration of Independence is for the form of right to freedom for people in the USA?
The Communications Decency Act of 1996 : How to protect children and permit freedom of expression on the internet. Why should something thought of as pornographic or harmful to children be permitted to be described in words in a novel or even a passage in the bible and yet the same scene or act graphically depicted be considered for censorship? Why should material or speech offensive in one country be permitted in another country or vice versa? What basis is there for the decision? Who decides? Who regulates?
The following are remarks, reflections and responses to issues and questions related to this matters in this chapter. Each offering is proceeded by the authors name and institutional affiliation.
Marie Lafferty, CUNY, SPS, 2007
In Favor of Freedom on the Internet
“Those who won our independence believed that the final end of the state was to make men free to develop their faculties, and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government.” Judge Louis Brandeis on Whitney v. People of California, 274 U.S. 357 (1927) http://caselaw.findlaw.com/scripts/getcase.pl?court=US&vol=274&invol=357
In Favor of Limits on Internet Freedom
model for universal freedom which Mr. Gingrich so rightly applauds could
not take into account the barbarisms of the modern mind. Nor could it
imagine the genius by which such barbarisms can be disseminated as they
are today, in seconds, to the remotest and still most innocent corners
of the world. Someone, perhaps even the Speaker of the House of
Representatives, is going to have to consider soon the implications, for
ill as well as good, of our venture out onto the information
superhighway, or else there are going to be some very messy electronic
I believe Judge Louis Brandeis’s argument in favor of freedom is important. It makes a clear statement about the values our society holds high and even though he isn’t writing about the internet at all, his words speak even more loudly to the value of freedom on the global internet. Richard Tribe states that “the Constitution's premises, properly understood, are *normative* rather than *descriptive*. The philosopher David Hume was right in teaching that no "ought" can ever be logically derived from an "is."; and “Science and technology open options, create possibilities, suggest incompatibilities, generate threats. They do not alter what is “right" or what is "wrong." The fact that those notions are elusive and subject to endless debate need not make them totally contingent on contemporary technology.” http://www.epic.org/free_speech/tribe.html
Tribe’s statement focuses the legal and philosophical arguments of our valuation of free speech spoken of so eloquently by Judge Brandeis; at the same time it encourages doing the hard work of determining how to maintain that freedom while protecting the innocent, and avoiding individual harm. Proposing limitless freedom immediately puts that proposal in conflict with other of our highly valued but competing truths, e.g., protection of the innocent and the right to privacy. Positions at one extreme (or the other) that don’t allow for the inherent problems with that position are destined to fail, or be corrupted. Judge Bork’s warning of ‘messy electronic traffic accidents’ is overwrought but contains some merit. While I don’t entirely agree, Bork clearly defends his position for restrictions on the internet, which is why I chose it as an important statement. And we should note that Judge Brandeis, even while speaking for free speech, ruled in favor of the restriction to speech that was the content of the case. But on the other hand, Larry Lessig in Free Culture highlights the effects of the government’s restrictions on radio, and other media.
I would hold that Tribe’s statements should be a wake-up call. What is needed is the determination of a balance between our various rights and obligations, not abrupt, reactionary movements, which only serve to solidify opposing positions, as the pendulum swings from an ‘everything goes’ position advocated by some (Barlow’s Declaration is a good example) to one of over-restriction ( as in the Far and Middle East control of content and access). As Tribe also notes in the same article, “And nothing about any new technology suddenly erases the Constitution's enduring value of restraining *government* above all else, and of protecting all private groups, large and small, from government.”
Jack Friedman, CUNY, SPS, 2007
The aspect of free speech that I found most interesting were the pros and cons of the Communications Decency Act. While the excerpts I have chosen are not diametrically different, they certainly call to question the appropriate way in which internet content should be limited. In the first case I will look at “What Things Regulate Speech:
CDA 2.0 vs. Filtering”, an essay by Lawrence Lessig.  I will counter this with arguments made by the Court of Appeals for the Third Circuit in the case ACLU vs. Reno.  I think each side presents their opinions clearly and cogently and are more reasonable than some of the other arguments made on this topic.
John Perry Barlow’s offers bitter criticism of the CDA in his “A Declaration of the Independence of Cyberspace”  , but in my opinion does not address many core values that need to be addressed. While filled with anarchist ideas and might declarations that somehow he owns the internet, he doesn’t address the problems that the CDA, at very least, tried to discuss. His failure to accept that free speech is not an absolute right denies his declaration any credibility. Unlike the arguments I’ve selected, he neither discusses filter and blocking or identification and authentication efforts to curb pornography to children.
Lawrence Lessig framed the problem by saying, “ It stands for a rule that has governed in this area since time immemorial — that at least when kids are at issue, the question is not really whether the regulation is too burdensome on free speech, but whether the regulation is more burdensome than it needs to be.” He continued, “Put another way, when kids are at stake, the only relevant question is whether there is some less burdensome way to achieve the same censoring end. If there is not, the law will stand.” To summarize, Lessig agreed with the concept of the government having some role in restricting free speech, but felt that the means to that end should be the least oppressive way. Rather than throwing away the baby with the bath water, Lessig called on modifications to the CDA. He said, “My aim in this essay is to demonstrate the danger in these alternations of the CDA. It is to make clear the constitutional concern My argument in the end is that the only constitutional strategy that Congress can follow for regulating “indecency” on the net is a strategy very much like the CDA. I mean to attack “private” blocking as a solution to the “problem” of indecency, and I mean my attack to be a constitutional one.
He calls for a CDA 2.0, a cousin to CDA that in his opinion, and mine would address many of the concerns of free speech proponents while solving one of the most difficult dilemmas of the internet; anonymity. His idea is to, “Consider a law that resolved this ambiguity. This law (call it CDA 2.0) has three parts.55 First, it bans — civilly56 — the knowing distribution of Ginsberg-speech to kids.57 Second, it bans — again civilly — the distribution of Ginsberg-speech, unless the distributor58 verifies the age of the recipient. And third, it establishes, in the Commerce Department, a certificate authority, from which (1) individuals can pseudonymously obtain a digital certificate (an encrypted credential) verifying that they are above a certain age, and where (2) sites can verify the validity of those certificates. Nothing in this third part would require that individuals get their certificate from the government. The statute would allow a range of organizations to function as certificate authorities.59 But by establishing a very cheap certificate authority, the statute would assure that such identity would be available at a very low cost.”
Lessig argued against filtering and blocking as many of the free speech advocates cried. Instead he looked a t changes that made more sense. His two ideas were, “One change requires that attributes of individuals be authenticated; the other requires that content be labeled. My argument has been that the second change would have a much more profound consequence for speech on the net, both within the United States, and outside the United States.” He challenged his proponents by claiming, “ The alternatives to the CDA are all what we might call “filtering” solutions. They are designed to facilitate content filtering rather than identity blocking, and all depend in the main on third parties rating the content to be filtered. Thus again, if the legitimate concern is a child’s access to Ginsberg speech, then the less restrictive means here (between private blocking software and CDA 2.0) is, I suggest, CDA 2.0.” His argument against one type of these filtering techniques was, “PICS is neutral vertically as well. It not only allows any number of filters to be selected among; it also allows these filters to be imposed — invisibly — at any level in the distributional chain. The filter can be imposed at the level of the individual’s computer. But it can also be imposed at the level of the ISP. Or at the level — in principle — of a nation-state. PICS doesn’t discriminate in favor of local control, or against centralized control. It is, as its founders describe it, “neutral” among these different locations for the imposition of the PICS filter.”
To sum up, Lessing argued that filters and blocks were too subjective. Someone or some group had to determine which content was permissible or not. The choices were invisible to the user and taken to the extreme could lead to government censorship. His solution was to make content providers more visible and traceable, thus making them more accountable.
In ACLU vs. Reno, the CDA was deemed unconstitutional. The justices, unanimously decided that Congress had erred in passing the CDA and it was unnecessary.
Chief Judge Sloviter said, “When Congress decided that material unsuitable for minors was available on the Internet, it could have chosen to assist and support the development of technology that would enable parents, schools, and libraries to screen such material from their end. It did not do so, and thus did not follow the example available in the print media where non-obscene but indecent and patently offensive books and magazines abound. . . . Instead, in the CDA Congress chose to place on the speakers the obligation of screening the material that would possibly offend some communities.” Judge Dalzell wrote, “My examination of the special characteristics of Internet communication, and review of the Supreme Court's medium specific First Amendment jurisprudence, lead me to conclude that the Internet deserves the broadest possible protection from government-imposed, content-based regulation. ...Any content-based regulation of the Internet, no matter how benign the purpose, could burn the global village to roast the pig. ...
The Internet is a far more speech-enhancing medium than print, the village green, or the mails. Because it would necessarily affect the Internet itself, the CDA would necessarily reduce the speech available for adults on the medium. This is a constitutionally intolerable result.”
Judge Sloviter pointed to blocks and filters as a means of reaching a solution to undesired internet content. He put the onus squarely on the parents, schools and libraries. Judge Dalzell didn’t believe in any type of content-based regulations. Judge Buckwalter claimed, “More specifically, I now find that current technology is inadequate to provide a safe harbor to most speakers on the Internet.” All three judges failed to consider other alternatives like those suggested by Lessig. In fact, I believe Buckwalter was wrong in his contention that the technology to address the issue did not exist.
I look at E-Bay as my example as to why Lessig was right and the Third Circuit wrong. E-Bay allows its users to rely on people’s reputations when making their purchasing or selling decisions. They do not guarantee any products or the integrity of their users. They follow Lessig’s example. Each buyer or seller is identifiable. Each transaction is evaluated by the parties in a public forum. When making a purchase or considering a sale, you have the history of the trading partner as a means of making a determination of their reputation and character. If someone screws someone out of money or sells them something contrary to its description, the whole world knows about it. Clearly, the party that acts unethically will suffer as a result.
I believe Lessig’s ideas are similar. If we could identify users and providers on the internet and authenticate that process, like E-Bay, I believe it makes everybody more accountable. I think that the anonymity of the internet encourages behaviors of those who might not act the same way if they were identifiable. It wouldn’t stop 100% of internet porn, but those who promote or distribute it would be easier to find and if necessary address. I find this approach much better and safer than chancing organizations or governments from filtering or blocking internet content.
Richard Vida, CUNY, SPS, 2007
“The Supreme Court has written that this freedom is "the matrix, the indispensable condition of nearly every other form of freedom." Without it, other fundamental rights, like the right to vote, would wither and die.” (http://www.aclu.org/freespeech/gen/11178pub19970102.html)
Our right to Freedom of Speech is a privilege I do not take for granted. I remember my relatives in Portugal during the dictatorship of Salazar existing in a nation overwhelmed in paranoia and fear. Many of my family were scholars subjected to constant ransacking of not only their homes and offices but also their personal texts, orations and presumed thoughts. It was a time in Portugal, when any outside influence not deemed to be complimentary to the dictatorship nor truly Portuguese was completely disallowed from introduction into society. This included literature, cuisine, the Arts and education. Since 1972 and the Carnation War that ended the lunacy it has taken Portugal two generations to become a thriving self sufficient country and a major player of the E.U. Why? They were once again provided with the gift of Free Speech.
I do believe the ability to think and speak freely is indeed the matrix of any society but with this comes a responsibility in how one chooses to preach or share their opinions. While it is imperative that we preserve the First Amendment, we must also continue to scrutinize and evaluate the means in which this freedom is used. Public disturbances, burning flags, slanderous opinions, child pornography and any other form of communication used to harm another does not, in my opinion, embrace the fundamentals of Free Speech.
“The Constitution's core values, I'm convinced, need not be Transmogrified, or metamorphosed into oblivion, in the dim recesses of cyberspace. But to say that they *need* not be lost there is hardly to predict that they *will* not be. On the contrary, without further thought and awareness of the kind this conference might provide, the danger is clear and present that they *will* be.”
(http://www.epic.org/free_speech/tribe.html) Lawrence H. Tribe 1991.
As I continue to share in my writings each week, I do not believe that the virtual world is immune to any weaknesses present in reality. Actually I think in cyberspace with the ease of communicating in a matter of seconds to a tremendous body of people magnifies the consequences. Thus we would be foolish to assume, even naively, that our rights to free speech could not be challenged or even disappear in cyberspace.
Now we are communicating with the world and challenging everybody’s cultural beliefs. I fear that nationalism may indeed play a large role in attempting governments to censor our shared opinions online. This is routine in China and many other countries. This cyber world has the capability of insightful debate and dialog bringing people, communities and nations together. But will we ever use it in that manner, to benefit the world. Will it develop into a means for E-Commerce only? Time will tell, but we must be diligent in maintaining our nations Freedoms, as fragile and imperfect as they may be. Not only for our own benefits but as a model for the world.
“Whoever ... (1) in interstate or foreign communications knowingly ... uses any interactive computer service to display in a manner available to a person under 18 years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards ... or (2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) ... shall be fined under title 18, United States Code, or imprisoned not more than two years, or both.” (Communications Decency Act Enacted by the U.S. Congress on February 1, 1996)
The protection of our children all over the world from being exposed to sexually explicit material and child abusers should be the most important issue in cyberspace. The ease in which predators can infiltrate chat rooms and websites like MySpace must be monitored with every cyber patrol imaginable. Offenders must be prosecuted to the fullest extent of the law.Censorship of child pornography is our duty. The author, creator or abuser as I call them, loses their right to express their First Amendment rights by endangering young people without a voice. It is our obligation to be their voice. Danger lurks everywhere in the cyber playground and by our protecting the children we offer them Freedom of Speech. This must be a relentless cause, to implement and design better cyber filters to keep our children safe. We must educate the parents as well as the software and website designers on how to create child safe applications.
Joseph Snellenberg, CUNY, SPS, 2007
I personally feel that the Internet should be allowed to host any form of media content, but within limits. I feel that allowing minors to view explicit material should be controlled (e.g., age verification programs, site-specific passwords, etc.), but not have such explicit material banned completely from the Internet. Censorship has turned into a hypocrisy with the arrival of the Internet and how the Internet has changed the face of the media. I feel that censors no longer look out what is for the common good, rather for what their supporters want them to oversee. Another problem is that censors say they will protect the public from one form of offensive content, and then go ahead and let that very offensive content be aired or shown to the public. This latter example of the hypocrisy of censorship is not limited to the Internet; it extends to all forms of media such as television and movies.
For example, when I saw the first Matrix movie on TNT back in either late 2001 or early 2002, two very bizarre editing decisions were made (from my perspective). After the well-known (and well-parodied) “Bullet Time” sequence with actor Keanu Reeves, one Agent approaches Mr. Reeves' character and prepares to shoot him dead. Actress Carrie-Anne Moss stops the villain by putting a gun to his head and killing him with a single shot. For the television version, the one-second shot of Ms. Moss’ character putting her gun to the villain’s head was removed. Later on in the film, a helicopter piloted by Ms. Moss gets damaged and crashes into a building, complete with a fiery explosion. The entire crash sequence (along with the explosion) was left intact for the television version. At that time in America, you would expect a movie featuring an aircraft crashing into a building would be too offensive to some people and not shown or edited around that crash. But, it seemed to me that the censors felt that a helicopter crashing into a building in post-9/11 America was not as impressionable as putting a gun to someone’s head on Americans under the age of 18.
Regardless, the Internet does deserve the right to freedom of speech, in my opinion. The Internet is long overdue to receive the protection and rights that it so deserves. The following quote from Ithiel de Sola Pool shows how important allowing free speech on the Internet is to the future of the world and illustrates how I feel on this matter.
Networked computers will be the printing presses of the twenty-first century. If they are not free of public [i.e., government] control, the continued application of constitutional immunities to nonelectronic mechanical presses, lecture halls and man-carried sheets of paper may become no more than a quaint archaism.
(Basse, Sara. A Gift of Fire: Social, Legal, and Ethical Issues for Computers and the Internet. Pearson Education, Inc. New Jersey. 2003. Pg. 196)
In other words, if we allow the Internet and computers to be restricted while other forms of media (e.g., newspapers) go unchecked, then we are acting in a more schizoid manner. In comparison to other nations, the United States is more conservative in terms of censorship and what is allowed in the media than other countries in the world. European nations have no problems with displaying nudity or violent images to the youth, but America almost goes into fit of rage and hysteria over a single female body part “accidentally” being revealed in a “wardrobe malfunction”.
Overall, my feeling is that we should have some degree of censorship, but do not let it get out of control. I think that there should be some control, like age verification and passwords, that should regulate what people see on the Internet; however, there should not be a nation-wide or state-sponsored system controlling what I see on the Internet or on the television or in the movies. Censorship is indeed a touchy subject for people today, but it should not be ignored nor allowed to run rampant. In my opinion, freedom of speech on the Internet should be allowed and regulated within reason; at the same time, it should not be placed under super-strict limitations like Communications Decency Act or a similar law.
Web Surfer's Caveat: These are class notes, intended to comment on readings and amplify class discussion. They should be read as such. They are not intended for publication or general distribution. email@example.com @copyright 2006 Philip A. Pecorino
Last updated 8-2006 Return to Table of Contents