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The First Amendment and the Internet:

Overview
Cases
Links
Background Notes

Overview

Litigation concerning governmental efforts to regulate speech on the Net has established that Net communications are to be accorded the full measure of First Amendment protection. Two themes predominate in these cases, one common to all First Amendment cases and one more or less unique to the Net. First is the tension between the legitimate need to regulate speech -- for example, to protect minors from exposure to pornography -- and the free speech requirements of an open society. The second theme concerns whether the most restrictive local standards of obscenity to be found in the nation will, in effect, govern what may appear on the Net or whether a more permissive standard -- perhaps even a standard particular to the cyberspace community itself -- will obtain.

For a general discussion of this topic see our Background Notes.

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Cases

Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329 (1997)

In Reno, the United States Supreme Court struck down part or all of two far reaching provisions of the Communications Decency Act of 1996 ("the CDA") and in so doing established unequivocally that the medium of the Internet is entitled to the broadest First Amendment protections accorded traditional media such as books and newspapers, and not merely to the more limited First Amendment protections accorded broadcast media.

For further information about this case see our in-depth analysis.

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Apollomedia Corp. v. Reno, 19 F.Supp. 2d 1081 (N.D. Calif. 1998)

Despite the Supreme Courtís decision in Reno v. ACLU striking down a portion of the CDA prohibiting the knowing transmission of indecent -- as opposed to obscene -- messages to minors, the Apollomedia court did not strike the phrase "indecent" from a CDA provision criminalizing obscene and indecent communications made with the intent to annoy. The court let the provision stand, but limited its reach to obscene communications which are not protected by the First Amendment.

Apollomedia, which operates the "annoy.com" web site, appealed. On April 19, 1999, the Supreme Court summarily affirmed the Ninth Circuit's ruling.

For further information about this case see our in-depth analysis.

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American Libraries Assn.. v. Pataki, 969 F. Supp. 160 (S.D. N.Y. 1997)

This case suggests that a state which seeks to regulate speech on the Internet must clear two constitutional hurdles: the First Amendment and the Commerce Clause. Here, the enforcement of a New York criminal statute analogous to the CDA was enjoined by a federal district court on the basis of the Commerce Clause which restricts the stateís ability to interfere with the flow of interstate commerce.

For further information about this case see our in-depth analysis.

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A.C.L.U. v. Miller, 977 F. Supp. 1228 (N.D. Ga. 1997)

Here, the "mini - CDA" of Georgia was struck down on this case on the ground that it appeared to impose content based speech restrictions that were not narrowly tailored in light of the state interest at stake. In addition, the court also held that, as drafted, the statue was overly broad and void for vagueness.

For further information about this case see our in-depth analysis.

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United States v. Thomas, 74 F.3d 701 (6th Cir. 1996)

In this case, the obscenity-based convictions in Tennessee of a California couple, who operated a "for fee" Bulletin Board Service that allowed members to download pornographic materials, were upheld after the court rejected the defendants' claim that under the First Amendment, the "community standards" by which the "obscene" nature of the materials should have been measured was that of the "cyberspace community" and not that of Memphis, Tennessee.

For further information about this case see our in-depth analysis.

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Zeran v. America On-Line, Inc., 129 F.3d 327 (4th Cir. 1997)

In this much discussed case, the court held that the CDA provided immunity to the defendant for claims arising from defamatory messages placed on its service by a third party and preempted similarly based state law claims.

For further information about this case see our in-depth analysis.

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Mainstream Loudoun v. Bd. Of Trustees of the Loudoun County Library, 2 F. Supp.2d 783 (E.D. Va. 1998)

In this case, the court decided that a libraryís trustees were not entitled to immunity under the CDA against a lawsuit arising out of their decision to block access to certain on line materials through the use of blocking software. The court also decided that because the blocking software appeared to be over-inclusive in the materials it filtered, there was a triable question as to whether unreasonable means had been employed.

For further information about this case see our in-depth analysis.

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Mainstream Loudoun, et al. v. Bd. of Trustees of the Loudoun County Library, United States District Court for the Eastern District of Virginia, Civil Action Number 97-2049-A.

On November 23, 1998, the United States District Court for the Eastern District of Virginia permanently enjoined the policy of Loudoun County Library to block access by library patrons to certain Internet publications on the ground that the policy violated the First Amendment. In May, 1999, the Board of Trustees announced that they would not file an appeal.

For further information about this case see our in-depth analysis.

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United States v. Kufrovich, 997 F. Supp.246 (D. Conn. 1997)

In the criminal context, Reno v. ACLUís [cases/Renoaclu/] holding that the medium of the Internet is entitled to the broadest First Amendment protections has been limited where the speech in question constitutes the crime itself or is incidental to the crime.

For further information about this case see our in-depth analysis.

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Stern v. Delphi Internet Services Corp., 626 N.Y.S.2d 694 (1995)

Controversial radio celebrity Howard Stern brought this action against Delphi because it had used his photograph without his permission in an advertisement for an on-line bulletin board. The court held that Delphi, which provides "hard information" including news, stock prices and reference material as well as computer games and user interaction such as e-mail, on-line conferences and bulletin boards, was a news disseminator like a television network or news vendor, and thus entitled to full First Amendment protections.

For further information about this case see our in-depth analysis.

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United States v. Baker, 890 F. Supp. 1375 (E. D. Mich. 1995), affíd. sub. nom., U.S. v. Alkhabaz, 104 F 3d. 1492 (6th Cir. 1997)

In Baker, the United States District Court for the Eastern District of Michigan applied the First Amendment to defeat a prosecution based on allegedly threatening e-mails sent over the Internet. In so doing, the court held that a statute originally drafted in response to the Lindbergh baby kidnaping and traditionally applied to threats sent via mail, telephone or telegraph applied equally to e-mail transmissions, as did the First Amendment defenses often raised in such cases.

For further information about this case see our in-depth analysis.

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Religious Tech. Center v. Netcom On-Line Communications Services, Inc., 907 F. Supp. 1361 (N. D. Calif. 1995)

In this case, an affiliate of the Church of Scientology sought an order permitting it to seize the computer equipment of a former Scientologist minister turned critic who allegedly posted Church copyrighted and trade secret protected works on the Internet. Citing the First Amendmentís prohibition against prior restraint of speech, the court denied the request.

For further information about this case see our in-depth analysis.

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Loving v. Boren, 956 F. Supp. 953 (W.D. Okla. 1997)

In this case, the court rejected a claim by a professor that the University of Oklahomaís decision to restrict the use of one of the servers available to faculty and students to research and academic purposes violated the professorís First Amendment rights.

For further information about this case see our in-depth analysis.

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Urofsky v. Allen, 1998 U.S. Dist. LEXIS 2139 (E.D. Va. Feb. 26, 1998)

In Urofsky, the District Court determined that a Virginia statute which restricted access of state employees to sexually explicit material on state owned or leased computers violated the First and Fourteenth Amendments.

For further information about this case see our in-depth analysis.

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Bernstein v. U.S. Dept. of State, 922 F. Supp. 1426 N.D. Cal. 1996

In this case, the court held that source code language, like music and foreign languages, is speech protected by the First Amendment.

For further information about this case see our in-depth analysis.

On May 6, 1999, the Ninth Circuit Court of Appeals affirmed the lower court's ruling. Click here for our analysis of that decision.

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American Civil Liberties Union v. Reno (Reno II), United States District Court for the Eastern District of Pennslyvania, Civil Action Number 98-5591

Congress' second attempt to regulate the content of aspects of Internet communication failed to pass judicial scrutiny, as the United States District Court for the Eastern District of Pennsylvania held that the Child On-Line Protection Act was likely unconstitutional on its face as violative of the First Amendment. In so doing, the District Court reaffirmed the Supreme Court's ruling in Reno I which held that the CDA was unconstitutional and that communication over Internet is entitled to the broadest First Amendment protection afforded to traditional media.

For further information about this case see our in-depth analysis.

Links

For commentary on First Amendment/Speech issues on the Internet, see Volokh, Freedom of Speech, Shielding Children, and Transcending Balancing (1997), in which Professor Eugene Volokh provides analysis, criticisms and alternative approaches to Reno v. ACLU and Note, The Message in the Medium: The First Amendment on the Information Superhighway, 107 Harv. L. Rev. 1062-1098, (1994) , in which an editor of the Harvard Law Review discusses various approaches to the application of the First Amendment to Net. See also Making Cyberspace Safe For Children (?): A First Amendment Analysis of The Communications Deceny Act of 1996 in which Alan Lewine of the Georgetown University Law Center upholds the belief that the CDA is unconstitutional. In The Regulation of Pornography and Child Pornography on the Internet Yaman Akdeniz explores both the harmful and illegal contents of pornography and their regulation on the Internet. Freedom of Speech in Cyberspace from the Listenerís Perspective: Private Speech Restrictions, Libel, State Action, Harassment, and Sex by Professor Eugene Volokh of the UCLA Law School addresses various issues in the realm of free speech and its relation to the Internet.

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