What does free speech MEAN in the internet age

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Free Speech and Technology

• What does free speech MEAN in the internet age?

Kurt Hunt Dinsmore Shohl, LLP
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The First Amendment

• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof or abridging the freedom
  of speech, or of the press or the right of the
  people peaceably to assemble, and to petition the
  government for a redress of grievances.

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The First Amendment

• Congress shall make no law . . . abridging the
  freedom of speech, or of the press.

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The First Amendment

• Congress shall make no law . . . abridging the
  freedom of speech, or of the press.

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The First Amendment

• Congress shall make no law . . . abridging the
  freedom of speech, or of the press.

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The First Amendment

• A profound national commitment to the
  principle that debate on public issues should be
  uninhibited, robust, and wide-open, and that it
  may well include vehement, caustic, and sometimes
  unpleasantly sharp attacks on government and
  public officials.
• Supreme Court of the United States
• New York Times v. Sullivan (1964)

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Defamation

• Publication
• False
• About the Plaintiff
• Harm to Reputation
• Either
• negligent failure to discovery truth or falsity
  (private figure)
• knowing falsity or reckless disregard for truth
  (public figure)

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Regulation of Speech
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Traditional Structure
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Traditional Structure
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Traditional Structure
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Structure of the Internet
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Internet Structure
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Traditional Structure
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Traditional Intermediaries Are Bottlenecks

• "The First Amendment interest of the public in
  being informed is said to be in peril because the
  marketplace of ideas is today a monopoly
  controlled by the owners of the market.
• Supreme Court of the United States
• Miami Herald Publishing Co v. Tornillo (1974)

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Traditional Structure
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Internet Structure
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Internet Structure
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Regulating Online Speech
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First Amendment Applies to Online Speech

• "'The content on the Internet is as diverse as
  human thought.' . . . Our cases provide no
  basis for qualifying the level of First Amendment
  scrutiny that should be applied to this medium.
• Supreme Court of the United States
• Reno v. ACLU (1997)

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Anonymity
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Anonymity
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Anonymity
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Internet Structure
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Communications Decency Act

• 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.
• 47 U.S.C. 230

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Internet Structure
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YouTube Community Guidelines

• YouTube is not for pornography or sexually
  explicit content. If this describes your video,
  even if it's a video of yourself, don't post it
  on YouTube.
• Don't post videos showing bad stuff like animal
  abuse, drug abuse, under-age drinking and
  smoking, or bomb making.
• Graphic or gratuitous violence is not allowed.
  If your video shows someone being physically
  hurt, attacked, or humiliated, don't post it.
• YouTube is not a shock site. Don't post
  gross-out videos of accidents, dead bodies or
  similar things intended to shock or disgust.

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YouTube Community Guidelines (Contd.)

• You may not like everything you see. Some of the
  content here may offend youif you find that it
  violates our Terms of Use, then click the button
  that says "Flag" under the video you're watching
  to submit it for review by YouTube staff.

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YouTube Community Guidelines (Contd.)

• Most nudity is not allowed, particularly if it
  is in a sexual context.

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Regulating Speech inthe Public Schools
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Traditional Speech in Public Schools

• Students do not shed their constitutional right
  to freedom of speech or expression at the
  schoolhouse gate.
• Supreme Court of the United States
• Tinker v. Des Moines Independent Community
  Schools (1969)

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Traditional Speech in Public Schools

• BUT

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Traditional Speech in Public Schools

• Speech can be regulated if it materially
  disrupts classwork or involves substantial
  disorder or invasion of the rights of others.
• Supreme Court of the United States
• Tinker v. Des Moines Independent Community
  Schools (1969)

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Traditional Speech in Public Schools

• Schools can regulate speech that includes the
  use of obscene, profane language or gestures.
• Supreme Court of the United States
• Bethel School District No. 403 v. Fraser (1986)

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Off-Campus Speech

• Regulation requires connection to the school.
• School-sponsored event
• Distribution in school

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Online Speech in Public Schools

• If accessed in school, speech is distributed
  in school.
• This is the potential hook to regulate.

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Online Speech in Public Schools

• Online speech is distributed anywhere it is
  requested.

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Online Speech in Public Schools

• J.S. ex rel H.S. v. Bethlehem Area School
  District (Pa. 2002)
• Speech that is aimed at a specific school
  and/or its personnel may be considered to be
  brought onto the school campus or accessed at
  school by its originator.

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Online Speech in Public Schools

• Doninger v. Niehoff
• (2d Cir. 2008)
• School could regulate speech because the blog
  posting directly pertained to events at the
  school.

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Online Speech in Public Schools

• Layshock vs. Hermitage School District
• (W.D. Pa. 2007)
• the mere fact that the Internet may be
  accessed at school does not authorize school
  officials to become censors of the World Wide
  Web. Public schools are vital institutions, but
  their reach is not unlimited.

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Traditional Structure
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Internet Structure
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Contact Information

• Kurt R. Hunt
• Dinsmore Shohl, LLP
• kurt.hunt_at_dinslaw.com