This web site explores the limitations of free speech on the Internet. New technology has always caused our society to have a knee jerk reaction and demand regulation. Over time the panic wears off and application of existing time tested judicial doctrines and self-regulation tame the new technology. Speech on the Internet is no different. Free speech is not absolute. Well-tested judicial decisions (common law) have established clear limits to our First Amendment right to free speech. Application of these limits to the Internet is not always straightforward, but it is possible. To understand the complexity of regulating speech, first, there is a general discussion of our First Amendment right and its essential functions in our society. Second, the common law limitations to free speech are explored. Third, an overview of the nature of the Internet is given, highlighting the features that make application of common law to this medium difficult. Fourth, the common law limitations on speech are applied to the Internet. Finally, a conclusion is drawn as to the effectiveness of current common law limitations to speech when applied to the Internet versus the need for a new set of laws to deal with this unique medium. Although not all restrictions to our First Amendment right of free speech are discussed, the common law exceptions to First Amendment protection that are discussed are some of the most commonly recognized and applied.[1] Furthermore, some areas of the common law are given greater analysis due to the complexity of their application to the Internet. While others only receive a brief mention.

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II. Free Speech Under the Constitution

The First Amendment states that “Congress shall make no law . . . abridging the freedom of speech.”[2] Free Speech has been said to be an essential cornerstone upon which our democracy is founded.[3] Even speech that is loathsome to the listener is afforded protection on the theory that open discussion of ideas will end in the truth prevailing. If you don’t like another’s speech, the preferred remedy is to speak out against it. It is this process that embodies our democracy, creating a free exchange of ideas that facilitate constant challenges and changes to the status quo. Suppression of speech robs society regardless of its validity. For example, if the speech turns out to be true, then suppression would deny society the truth.[4] However, even if it were false, suppression would deny society a fuller understanding of the truth that comes from conflict of error.[5] Finally, when the speech is part true and part false, society will not learn the whole truth unless open discussions of the competing ideas are allowed.[6] It is for these reasons that the First Amendment protects all citizens, even the minority, because all views have value in this process.

Additionally, free speech is essential for a representative government.[7] Political speech serves at least four functions.[8] First, open debate helps to improve public policy.[9] Second, free speech prevents the government from resisting needed change.[10] Third, free speech prevents the government’s abuse of power[11] with citizens openly critiquing and exploiting the actions of the government, thereby preventing overuse of the powers they were given. Finally, free speech promotes political stability because it allows open venting of frustrations and disagreement with those in power.[12] Without this outlet, people would come to resent and eventually hate those in power, breeding civil unrest and instability.

However, free speech is not absolute. Our courts have established that certain types of speech are not afforded First Amendment protections. Some types of speech are too harmful to go unrestricted. Therefore, the government interest of protecting citizens is greater than the right of free speech under the First Amendment. As a safeguard to over regulation of speech, any governmental restriction of speech must be narrowly tailored to meet that governmental interest, restricting only the speech that is deemed harmful.[13] What follows is a section outlining the types of speech that our courts have found to be unprotected by the First Amendment.

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III. Limitations on Speech

Our judicial system has continually attempted to balance the right of free speech with the governmental interest of protecting its citizenry from harm. Additionally, private citizens have brought suit asking the courts to restrict the speech of others they feel is harmful. Over the years, numerous common law rulings on these issues have evolved to create the following well-defined judicial limitations on speech.

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A. Obscenity

The Supreme Court has found that the First Amendment does not protect obscenity because the governmental interest in shielding its citizens from sexually explicit materials is legitimate and outweighs the right of free speech.[14] However, defining what is obscene has been difficult. The established test for obscenity was laid out in Miller v. California,[15] which created three prongs to determine if a material is obscene and therefore outside First Amendment protections:

1) “Whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest.”[16]

2) “Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.”[17]

3) “Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”[18]

Part of the first prong of the test, contemporary community standards, was deemed to not be national standards, but instead, local community standards.[19] “It is neither realistic nor constitutionally sound to read the First Amendment as requiring that the people of Maine or Mississippi accept public depiction of conduct found tolerable in Las Vegas, or New York City.”[20] Therefore, the finding under the first prong is dependent upon the community that the obscenity took place in.

The second prong of the test requires that the work in question violate the applicable state law.

The third prong of the test involves a somewhat subjective judgment as to the value of the speech as literature, art, political statement, or science. This test makes obscenity a matter of taste. Justice Potter Stewart demonstrated this when attempting to define hard-core pornography by saying, “I know it when I see it.”[21] The “I know it when I see it” approach makes application of this doctrine difficult. Therefore, application of this ban on speech should be applied loosely, with only the extreme case of obscenity unprotected by the First Amendment.

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B. Fighting Words

The inflammatory nature of some speeches can cause the listener to direct violence at the speaker. The government, in an effort to maintain order and avoid violence, has restricted speech that is likely to induce violence or potential violence on the part of the listener toward the speaker.[22] No person “shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name.”[23] Generally, whether or not words are “fighting words” is based on a reasonable person test. Again, the courts are trying to determine what the average person is and if the provoked anger was a reasonable response to the speech.

Additionally, “fighting words” have become limited to speech directed to one person and not to speech directed generally at a crowd. For example, in Texas v. Johnson,[24] the Supreme Court struck down a conviction of a political protester who burned an American flag in protest in front of a large crowd. In finding this political speech protected the Court emphasized that “[n]o reasonable onlooker would have regarded Johnson’s generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs.”[25] Therefore, fighting words not only have to be inflammatory enough to provoke immediate violence, they must also be directed to an individual to lose First Amendment protection. The Court’s movement towards only prohibiting one to one fighting words was a move to protect political speech that is valuable but also controversial. Additionally, the Court apparently believed it is unreasonable for someone to attack a speaker who is speaking to a wide audience and not directly and only to that person.

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C. Defamation

A person’s interest in his reputation is protected by the tort actions for “libel” and “slander,” collectively called “defamation.”[26] Libel is damage caused by written word, while slander is caused by spoken word.[27] To prove an action in defamation, generally five elements must be met:

1) Defamatory words,

2) Publication,

3) Falsity,

4) Actual or implied malice, and

5) Resulting injury.[28]

However, if the words or publication are accusatory of criminal conduct, then they are defamatory per se and the elements of falsity and malice are presumed.[29] Additionally, the words or publication are measured “by the natural and probable effect upon the mind of the average reader.”[30] The words or publication must be judged by looking at the publication as a whole and not just the questionable parts.[31]

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D. Commercial Speech

Commercial speech is protected speech, but not at the same level as other types of speech. To protect against public deception, the First Amendment does not restrain the government’s control of purely commercial advertising.[32] However, this does not mean that there is no First Amendment protection of commercial speech. For example, in New York Times v. Sullivan,[33] the Court held that it was immaterial in the First Amendment analysis that the speech at issue was an advertisement that the New York Times was paid to run, just as it is in the selling of books and newspapers.[34] A four-part test is used to determine the constitutionality of commercial speech. For commercial speech to be constitutional it must:

1) At least concern lawful activity and not be misleading,

2) Assert a substantial governmental interest,

3) Directly advance the governmental interest asserted, and

4) Be narrowly tailored to meet that interest.[35]

Furthermore, commercial speech is regulated on the time, place and manner of its distribution. Time, place and manner restrictions on commercial speech are often approved of as long as they are justified without reference to the speech, serve a significant governmental interest, and leave open other alternative channels of communication.[36] This often involves limiting the times and places of certain advertising to protect children.[37] Suppressing misleading commercial speech is also acceptable to insure that “commercial information flow[s] cleanly as well as freely.”[38]

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E. True Threats

A “true threat” is one that “a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of harm or assault.”[39] Furthermore, this standard is applied in light of the particular facts, the surrounding circumstances and the reactions of the listeners.[40] The First Amendment does not protect a “true threat”.[41] The determination of whether or not a “true threat” occurred is largely a factual matter to be decided by the Judge or Jury.[42]

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F. Incitement of Imminent Lawless Action

The original intent of this doctrine was to protect against speech made in person with the intent of provoking others to act lawlessly. The First Amendment protects advocacy of the use of force or law violation unless it rises to the level of inciting or producing imminent lawless action and is likely to produce such action.[43] “‘[T]he mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action.’”[44] The societal interest of protecting its citizenry outweighs the First Amendment right of free speech when such speech creates an immediate threat of harm to others. The Fourth Circuit recently expanded this doctrine to impose liability on the publisher of a book that outlined how to be a hit man.[45] It was found that the Hitman manual, although written, was so detailed and systematic that it incited the reader to imminent lawless action.[46] This case is discussed further in Section V Part F.

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IV. Unique Nature of the Internet

The sheer volume of information available on the Internet has become a resource many users are accustomed to. All that is needed is a computer and a modem hook up to an Internet Service Provider and the user can research anything from Aardvarks[47] to Zyzzyva.[48] This quality in itself makes the Internet a unique resource. Our courts have attempted to further define this medium.

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A. Reno

In ACLU v. Reno[49] the court made extensive findings of fact on what encompasses the Internet. Some of the most relevant of those findings are as follows:

1) Size: “Internet is a giant network that interconnects innumerable smaller groups of linked computer networks.”[50]

2) Low barrier to entry/big audience: Internet provides an easy and inexpensive way to reach a large audience.[51]

3) Diversity of content: The content of the Internet is a diverse as human thought.[52]

4) Variety of communication: Communication on the Internet can be done by:

a) E-mail (much like a traditional mailed letter, just on the computer),

b) Bulletin boards (list of messages posted on a web site you can read), or

c) Real time chat (live interaction on your computer with others, can involve typing back and forth, but now can also include voices and also live video feeds).[53]

5) Anonymity: often impossible to know the identity of the speaker on the Internet.[54]

The above findings demonstrate the difficulty of regulating such a diverse, massive group of speakers. However, as the following section demonstrates, application of traditional common law to this new medium is possible.

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V. Limitations of Speech Applied to the Internet

Application of common law to the Internet is not always straight forward, but it does work. The following section will explore the common exceptions to the First Amendment right to free speech applied in the context of the Internet. At times it is like hammering a square peg in a round hole, but if you hammer long enough, the square peg will eventually fit.

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A. Internet Obscenity

And plenty of it. The Internet is saturated with pornography. This has been the center of most of the legislation regarding the Internet,[55] with attempts by Congress to limit children’s access to adult materials. This has proven unsuccessful because of the inability to successfully keep children from this material without also keeping adults who have a constitutional right to view it from accessing it.[56] However, the problem with limiting access does not change the analysis as to what is obscene, which is not appropriate for children or adults alike.

The application of the three-part obscenity test[57] presents problems when applied to the Internet. The biggest of which is application of the first prong, “Whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest.”[58] Whose community standard applies? Imagine the diversity of standards on the Internet, which has users all across the globe. In Miller v. California the community standard was up to the jurors of the local community to decide.[59] Where is the local community on the Internet? With fairness and consistency in mind, here are some possible solutions to this dilemma.

For instance, the United States or another world leader could impose their community standards on the rest of the world. This approach doesn’t sound real fair, but would help create consistency. Forcing others to comply with our standard would put users on notice as to the standard of obscenity. However, obscenity is a matter of taste. Remember the “I know it when I see it” standard that Justice Potter espoused?[60] How comfortable are we at imposing this approach on a worldwide basis? The problem with doing this is that a permissive community would be forcing less tolerant communities to accept material that they deem obscene and likewise, the standard of a restrictive community would prevent more tolerant communities from accessing materials they would otherwise accept.[61] Therefore, this approach is unfair and would likely be rejected by Internet users as a whole.

A fairer but less consistent approach is to create an “Online Community Standard,” which would allow users of the Internet to govern the standard of obscenity. This “global community” would have to agree to the lowest common denominator as to what is obscene. This would be difficult if not impossible to determine. It would be necessary to only forbid speech that almost all cultures agree is obscene to receive international endorsement. Otherwise, some cultures would continue to disseminate speech on the Internet they deem appropriate while others see the material as obscene.

Instead, there could be different standards applied to users in different Internet communities. How consistent could that possibly be? Either different standards apply to different “communities” of the Internet (that is if it can be divided up) or the law of obscenity on the Internet is essentially reduced to the lowest common denominator. Furthermore, there remain enforceability problems of whom, how, and where would any agreed to standards be enforced. Possibly the creation of a separate set of Internet courts that only deal with these types of international cyber issues would solve this problem, but again, it may be difficult to get International agreement as to their set-up.

If a global standard of obscenity could be created, and there was a means of enforcement, the common law rule laid out in Miller[62] would work. However, even if a global community standard were agreed to, it would likely establish obscenity to be a lot more obscene than most of us would currently define it. Enforcement of an international standard of obscenity would only be fair if the material was agreed to be obscene by everyone. This would raise the standard far above current levels.

Therefore, the best solution would be to divide up the Internet into different sections, where entry into a section is agreeing to their “community standards.” Creation of “adult zones” would not violate the Constitution.[63] Technology will determine the legitimacy and feasibility of this type of division. However, dividing up the Internet would take away from the centralized accumulation of information that allows for retrieval of all types of information from one place. What choice do we have? Either we lack fairness in our approach by forcing a uniform standard on everyone, lack protection by trying to impose a standard that accommodates everyone, lack consistency by trying to impose different standards on different users, or divide the Internet into “adult zones” and fragment its content. Take your pick.

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B. Internet Fighting Words

Kind of hard to do on the Internet. Remember, the court in Texas v. Johnson[64] has limited this doctrine to more direct, one to one speech. Although, one to one chat is possible on the Internet,[65] the lack of physical proximity of the speaker and listener precludes application of this doctrine to the Internet. The intent of this common law doctrine is to keep order and prevent the speaker from engaging listeners in such a way as to provoke them to violence towards the speaker, not just in general. Speech that provokes others to generally act out lawlessly is covered by the Brandenburg “incitement to imminent lawless action”[66] standard discussed in section F of this section.

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C. Internet Defamation

This, not surprisingly, takes place often on the Internet. The ease of access and the number of participants make libelous comments plentiful. The traditional common law factors of defamatory words, publication, falsity, actual or implied malice, and resulting injury,[67] are applied the same on the Internet. However, because so many people of different backgrounds and educational levels can potentially publish libelous comments, demonstrating actual or implied malice would be difficult. It needs to be shown by clear and convincing evidence that the defendant published the defamatory statement with actual malice or a least a reckless disregard for the truth.[68] The traditional publishers, such as newspapers and television broadcasters, are aware of libel law and are therefore on notice that publishing untruths would either be malicious or a reckless disregard for the truth. On the Internet, many publishers are not aware of the consequences of publishing untruths and may often do it in jest. The lack of sophistication of the average publisher on the Internet makes enforcement of the actual or implied malice prong difficult to prove. Additionally, the sheer number of libelous statements on the Internet makes enforcement impracticable. Pursuing a claim is not often economically practicable since many offenders are likely judgment proof. Also, enforcement is again a problem. The relative anonymity and international nature of the Internet makes rounding up violators near impossible. However, common law does work here, its just harder to make it stick and less worthwhile to apply it.

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D. Internet Commercial Speech

E-commerce is commercial transactions on the Internet and it is exploding. There are approximately 3.5 million web sites globally, one-third are e-commerce sites.[69] Application of the common law four-part test is the same in Cyberspace. The difficulty arises when attempting to impose time, place and manner restrictions.

The concern on the Internet is to protect children from advertising that is harmful for them to view. Traditional common law does not give us an adequate means to accomplish this goal. For example, it was found that limiting advertising of alcoholic beverages on billboards near areas where children are present was reasonable and narrowly tailored to accomplish the legislative goal of protecting minors.[70] In upholding the advertising ban, the Fourth Circuit cited the fact that there were many other avenues of communication to advertise the product, such as newspapers, magazines, radio, television, direct mail and the Internet.[71] The problem with applying this sort of time, place and manner restriction to the Internet is that there are no real boundaries in Cyberspace.[72]

The Internet could be divided into distinct areas, such as adult and children sections. Credit card verification or use of a third party verification system was the latest legislative scheme enacted to attempt to create adult only zones on the Internet.[73] However, it was ruled unconstitutional as being an overbroad restriction on speech.[74] Because this type of verification would be required of non-commercial speech and not just commercial, it would cause the suppression of speech not intended by the legislation. Additionally, verification schemes costs money and therefore only hinder the little guy from advertising, which destroys one of the benefits of the Internet, low cost of entry.[75]

Another option would be to ban all adult oriented advertising on the Internet. There are plenty of other avenues to advertise, does the Internet have to be one of them? According to ACLU v. Reno[76], the answer is yes. In Reno, the Internet was likened to the use of a telephone, in which the user has to affirmatively dial a number to reach who they want to.[77] With that in mind, the court compared regulation of speech on the Internet to attempts to regulate phone-based speech.[78] In particular, Sable Communications of California, Inc. v. FCC[79] was cited as to the proposition that a complete ban of a type of speech is not allowed in a medium. In Sable, the court found the First Amendment was violated by an attempt to completely ban dial-a-porn programming, which was not narrowly tailored to protect children.[80] Likewise, attempting to completely ban commercial speech that is inappropriate for children would also be struck down as over broad.

The best solution is to leave time, place and manner restrictions unregulated and encourage parents to employ software designed to screen out adult oriented materials. Since individuals and not the government would be employing the screening software the First Amendment is not implicated.[81] Self-regulation is a viable alternative where common law fails. Otherwise, the common law limits to free speech work here, just not when determining time, place and manner restrictions.

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E. True Threats on the Internet

“[A] reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of harm or assault.”[82] This standard works well on the Internet. The difficulty is in the proof of the standard, and showing a reasonable fear caused by speech on the Internet. However, this was shown in Planned Parenthood v. American Coalition of Life Activists where an Oregon court found the defendant’s web site constituted a “true threat”.[83] The defendant’s web site, an anti-abortion site, posted a list entitled “Alleged Abortionists and Their Accomplices,” which listed hundreds of doctors, politicians and judges that in some way supported abortions.[84] Lines were struck through those on the list that had been murdered.[85] The jury found this to constitute a true threat and ordered the defendants to pay $109 million in damages.[86] Since the question of whether a “true threat” exists is a jury question,[87] use of this doctrine on the Internet is only limited by the difficulty of proof.

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F. Incitement of Imminent Lawless Action on the Internet

Much like “true threats” on the Internet, application of this common law doctrine works on the Internet, however, it is difficult to prove. In particular, it is difficult to prove an imminence of harm because of the nature of communication on the Internet. However, a recent Fourth Circuit decision indicates it is possible.

In Rice v. Paladin[88] the court held a publisher liable for incitement of imminent lawless action caused by a book. The court emphasized the author’s intent to incite and the foreseeability of the book inciting readers to lawless action.[89] The book at issue was titled “Hit Man: A Technical Manual for Independent Contractors.”[90] This book was purchased and followed in detail in a triple murder.[91] The how to manual was found to be of such a detailed nature, that is was as if the instructor was literally present throughout the process of the planning and the committing of the murder.[92] To limit liability of publishers for coincidental incitement caused by their materials, such as newscasts, the court held that the speaker must have intent to incite.[93] This prevents criminals from using the First Amendment as a shield from liability from their actions.[94] However, even if there is intent to incite, there still needs to be an imminent harm present.

The court in Paladin got around this requirement by finding that imminence of harm is only required when the government restricts the speech.[95] The requirement of imminence was created in the seminal case of Brandenburg v. Ohio,[96] which dealt with the government trying to punish the speech of a Ku Klux Klan leader.[97] It was found that the state could not forbid speech unless the harm created was an imminent one.[98] The fear of the government becoming over restrictive of our First Amendment right is not present in an action involving two citizens. Therefore, it is likely not required without state action.

However, it is possible that imminence of harm does exist with the publication of materials similar to that in Paladin. For example, the necessary plans, to assassinate the President, for poisoning a city’s water supply, or other acts of terrorism are restricted forms of speech due to the imminence of harm once these plans are completed.[99] This expansive view of imminence is necessary to restrict speech that is not immediately harmful but can be used to cause catastrophic harms to society.

How does this all apply to the Internet? It means that this doctrine could apply to the Internet speaker. Even though this doctrine was developed to deal with live, in person, rousing speeches, the court in Paladin adapted it to publications. The Internet allows distribution of all sorts of information to all kinds of people. Protecting against criminal’s use of the Internet as a way to solicit and encourage acts of terrorism is a real concern. The anonymity of users of the Internet facilitates criminals in recruiting and aiding others in illegal acts.[100] Although it is a stretch of this doctrine to single out those that solicit other criminals, the court in Paladin adapted it and defined it in a way that works. Hammer hard enough and the doctrine fits.

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VI. Conclusion

Application of common law to the Internet will work. Over time it will develop to deal with the unique nature of this medium. There is no need to enact laws that specifically criminalize actions on the Internet that are criminal otherwise. Although the Internet presents unique characteristics for legal application, there is no reason to believe it will force courts to abandon well-established legal concepts merely because the speech in question is communicated by computer.[101] The difficulty is in enforcement. Because the Internet is international, we can’t control the content that originates outside our borders. Eventually, an International agreement or organization will be formed or the Internet will be divided up into distinct areas (“adult zones”) and this problem too will be effectively dealt with. New technology has always caused our society to have a knee jerk reaction to regulation; the pattern we have seen in the past is as follows:

First, a new medium comes along, and controversy over some content distributed by this medium provokes government action (local, state, or federal), perhaps foiled by courts’ free speech rulings. Second, the government continues to make threatening noises in the direction of the media outlet in question. Ultimately, the medium adopts a code of self-regulation. Movies and comic books have followed this pattern. It also emerged in the recording industry,[102] television, and video games.[103]

Eventually, this pattern will run its course on the Internet. With a little hammering and some patience, our existing limits to free speech will work on the Internet; there is no need to panic.

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VII. Other Resources: Web Sites of Interest

1) Go to http://www.ciec.org/ the Citizens Internet Empowerment Coalition, advocating free speech on the Internet.