The application of the First Amendment to speech is constantly evolving because of the changing mediums in which speech is conveyed. The current advances in technology such as television, radio, computers and other high tech electronic devices has created a demand for new definitions of what speech is and what is permissible under the First Amendment. The advent of such mediums as the Internet and telephone monitoring apparatuses has complicated the already diverse field of speech. The definition of "dangerous speech" and "decency" has to be reconciled with the individualistic nature of current technology. The passage of bills such as the Communications Decency Act as well as others are the legislatures' attempt to come to grips with the new media. However, as is normally the case, the courts have something to say about laws that restrict speech. While it is impossible to cite all the case law on these issues, this paper attempts to explore the issues related to four of the controversies related to the rapidly growing telecommunications arena: wiretapping, dangerous speech, Internet decency, and "junk" telecommunications.
Wiretapping and the First Amendment
While many recognize wiretapping as an issue dealing with the fourth and fifth amendment, privacy and due process respectively, there is much debate about infringement upon the first amendment. An individual's freedom to speak without coercion, along with maintaining control over how that speech is presented in the public is a central issue in the wiretapping controversy. While some contend that an individual has the right to make unpopular speech, or even advocate unlawful ideas, without government intrusion, others claim that when speech is threatening to other individuals or the security of the country, wiretapping is a legal mode of hindering criminal action. Through both legislation and Supreme Court cases, the wiretapping issue is seen as a relevant first amendment controversy.
"The unique character of the modern day surveillance is that it gives the person who conducted the surveillance the power to reproduce, at will, the subject's private speech and action" (Slough, 248). The fundamental ideal that wiretapping and surveillance undermines the first amendment is presented in this quotation found in Privacy, Freedom, and Responsibility. The passage goes on to further explain that through this intrusion, an individual or organization's right to remain private until deciding when to go public is neglected. Not only has a person's right to speak openly been defended, a person's right to speak privately, without recognition, has been upheld as well.
In McIntyre v. Ohio Elections Committee,115 S. Ct. 1511 (1995) the Supreme Court not only protected unpopular speech, but claimed that anonymity was a honorable form of advocacy, one that cannot succumb to government regulation. While McIntyre did not directly deal with wiretapping or surveillance issues, its ruling supports the notion that an individuals' right to speak supersedes the governments' inclination to investigate the relevance, or even the source of that speech. It promotes the privacy of the individual, a protection under the fourth amendment, but while this privacy is ensured, the speech is as well.
In addition, Alexander Meiklejohn's theory explains, "...activities of thought and communication by which people 'govern', must remain free from interference" (Slough, 23). He continues, that once expression achieves governing importance, it is protected by free speech. Meiklejohn's theory asserts another argument defending free speech, absent of intrusion, under the first amendment. The claim is that intrusion, such as wiretapping and surveillance, infringes upon an individuals' right to speak, or govern, effectively. Individuals have the right to remain free of interference, speaking privately or publicly without fear of government reaction.
While there are many contentions that explain the role of wiretaps in ignoring the first amendment, justification has been presented on its behalf. Two Studies in Constitutional Interpretation, written by Telford Taylor, states specific justifications and specific requirements for implementing surveillance devices such as wiretaps. Through this analysis, it is clear that while the first amendment is not completely adhered to, the rationale justifies this action. Taylor wrote:
(1) particularization of the crime about to be committed, the place
where surveillance is to be carried out, or the nature of the conversations
to be recorded; or (2) renewed showings of probable cause to justify an
extended period of surveillance; or (3) discontinuance of the surveillance
as soon as the desired recording is obtained; or (4) 'some showing of special
facts' to justify clandestine surveillance; or (5) a return to order to
the issuing magistrate. (Taylor, 105)
This quotation reveals a theme that is often found in more traditional first amendment cases. With phrases such as, "probable cause," "nature of conversations," and "justify clandestine surveillance," proponents of wiretaps would contend surveillance is used when a "clear and present danger" is assumed.
Advocates of surveillance, those justifying the legitimacy of its use despite possible infringement on the first amendment, point to such early cases as Schenk v. United States, 249 U.S. 47 (1919) and Gitlow v. New York, 268 U.S. 652 (1925) The clear and present danger test is established by Justice Holmes in the Schenk decision, explaining that when there is a clear and present danger to national security, freedom of speech can be abridged. In addition, Justice Sanfords' ruling in Gitlow extends Holmes' argument that every presumption should be indulged. Sanford contends, if you don't catch the spark, a fire may ignite. This rationale parallels that used by those who advocate wiretapping. When there is probable cause, or legitimate reason to believe a criminal act will occur, the federal government, proponents would assert, has the right to sacrifice the ideal of privacy in speech, and allow it to become public knowledge.
In 1928, Supreme Court supported this claim that private conversations, or private speech, is subject to infringement. Cloak and Gavel, written by Alexander Charns, describes how Roy Olmstead, along with others, conspired to sell liquor unlawfully. Prohibition Officers, in an attempt to combat this activity, placed wires on the phone lines to monitor this illegal activity, and continued this activity for nearly five months. Chief Justice Taft, in writing the 5-4 majority opinion for Olmstead v. United States 277 U.S.438 (1928), "...sanctioned the government's invasion of privacy since agents did not physically touch or take anything" (Charns, 18-19). In his argument, Taft also asserted that words cannot be seized, thus the actions of the Prohibition Officers were justifiable. Through this claim, Taft denied the individual privacy of speech, especially in situations where an attempt was made to break the law. "The majority held that the rights of the people to be secure in 'their persons' and 'houses' did not mean security against search and seizure of one's words, even if spoken in the security of one's own home" (Charns, 19).
Yet, in 1965, Katz v. United States 389 U.S. 347 (1967) narrowed the powers granted to the government in regards to use of wiretaps. The FBI placed microphones in public telephone booths without a warrant. A conversation by Charles Katz revealed his participation in transmitting wagering information that pointed to his participation in an illegal act. While the Olmstead decision concentrated on what was being said, the Katz decision focused on the means in which the government used to attain this information. The Court ruled that because the FBI was without a warrant, Mr. Katz could not be held accountable for what he was saying. In his concurrence in Olmstead , Justice Harlan elaborated, "...that a phone booth is a place where the expectation of privacy from intrusion is accepted and reasonable." In essence, Harlan is making a claim that individuals have the fundamental right to engage in free speech, in public settings, without fear of government intrusion. Unlike the Olmstead ruling, this decision extended individuals rights against government wiretapping.
In 1934, the Federal Communications Act was created. This Act, "...prohibited the interception and public divulgence of the contents of any wire communication, or its interception and use for personal benefit" (Slough, 256). While this looked to regulate the use of wiretaps, a more comprehensive act appeared with the Omnibus Crime Control and Safe Streets Act of 1968. Cloak and Gavel explains, "...the act regulated the interception of wire and oral communications, effectively amending Section 605 of the Communications Act of 1934..." (Charns, 1934). In essence, the new act looked to place more restriction on obtaining warrants, and place emphasis on the use of those warrants to attain information. It elaborated upon the idea that probable cause must be the justification for inquiry, as clear and present danger was the justification for Holmes in early first amendment cases.
Implement surveillance devices such as wire taps directly affect the individual's right to privacy under the fourth amendment. Additionally, information obtained through taps infringe upon due process, presented in the fifth amendment. Yet, both these amendments reveal qualities that fall aptly under the first amendment. A person has the right to speak freely and have those utterances remain private if she wishes. Also, by infringing upon a person's right to speak freely, and holding her responsible for speech that was not intended for a larger audience, you are not only violating her fifth amendment right, but in the process coercing the individual in regards to what she can say. Government use of wiretaps, many contend, reveal a governmental abuse of power, one that infringes upon the rights of the citizen to express themselves. Conversely, opponents contend that in instances where there is probably cause, use of a wiretap is not only justified, but crucial in resolving issues of national security or of criminal implications. The central theme of this debate is best summarized in the landmark case Berger v. New York 388 U.S. 41 (1967).
In this 1967 Supreme Court case, Justice Clark delivered the majority opinion. He stated that, "...a search warrant 'particularity describe the place to be searched, and the person or things to be seized'" (Charns, 84). The significance of this case appears in its treatment of surveillance power granted to the government. While maintaining the right to use wiretaps, it limited its use to only instances where search warrants could be obtained. These warrants would only be accessible if the grounds for investigation were significant. This decision summarizes both sides of the controversy. It limits the scope of investigations, realizing the fundamental right of individuals to speak freely, clear of government interception, coercion, or intrusion. Yet, it still grants the right to intrude upon speech that the government has reason to believe is dangerous or implicates a person in committing a crime. It recognizes that while wiretaps do play a crucial role in uncovering information, it is not a tool that should be abused.
Dangerous Speech
One of the more controversial areas of speech in telecommunications involves what is considered to be dangerous speech. Dangerous speech involves such topics such as terrorism, subversion, conspiracy, information on how to kill people or make destructive devices, and hate speech. Dangerous speech of this sort is more common on the Internet than any other form of telecommunications media. Over the airwaves, however, dangerous speech in the forms previously described are few and far between. With the exception of public access television and shortwave radio, those outside of the mainstream have almost no voice on the airwaves. The Internet on the other hand, allows the average individual to communicate with millions of people for the least amount of money and trouble. Unlike the airwaves, which are limited and require licensing to operate, enormous operating expenses, and great start up costs, there is no shortage of computers for the Internet. Because of these factors, the Internet has become an increasingly popular form of communication. As more people participate on the Internet, more information is put out on it, making it a true "marketplace of ideas". When all these people communicate, conflict is inevitable. Some examples of "Dangerous Speech" that can be found on the Internet is information on how to blow up schools, the manufacture of illicit drugs, and lists of police officer's homes on the web site of the Utopian Anarchist Party (White). Other web sites that can be found on the Internet are operated by hate groups. In fact, hate speech is so pervasive on the Internet that the United Nations held a seminar last year to find ways to suppress hate speech on the Internet (Cnet News Page).
It would be impossible to examine the current legal status of dangerous speech online and on the air without first examining the early rulings on dangerous speech both spoken and printed. One of the early cases is the 1919 U.S. Supreme Court Case Schenck v. United States, 249 U.S. 47. Schenck had been convicted under the Espionage Act of 15 June, 1917 for distributing leaflets to draftees urging them not to go to war. At the time, the Supreme Court's position on free speech is that there may be no prior restraint placed on it. Consequently, the U.S. Supreme Court upheld Schenck's conviction and reasoned that the federal government's restriction on speech are allowable if the words "are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent" (Van Alstyne 37). This formed the basis for the "Clear and Present Danger" test. However, the "Clear and Present Danger" test had problems from its inception. In the 1951 case Dennis v. U.S., 341 U.S. 494, a variation of the "Clear and Present Danger" test was used to uphold the conviction of one guilty only of advocating a communist revolution (Van Alstyne 129-142). In Abrams v. U.S., 250 U.S. 616, a case very similar to Schenck and also in the year 1919, Supreme Court Justice Holmes dissented on the use of his "Clear and Present Danger" test which he had created in Schenck because he realized that the danger must not only be clear and present but imminent with an intent to produce the "substantive evil that the United States may constitutionally seek to prevent" (Van Alstyne 51). The "Clear and Present Danger" test was in use until the 1969 case Brandenburg v. Ohio, 395 U.S. 444, where it was modified to the "Clear and Imminent Danger" test. In Brandenburg, both Mr. Justice Black and Mr. Justice Holmes, agreed that the "Clear and Present Danger" test has "no place" in First Amendment interpretation (Van Alstyne 147-148). This decision marked a clear departure from the earlier Supreme Court policy of ruling against the freedom of speech in favor of public order.
One recent example of the conflict between the freedom of speech and the press and society's interest in suppressing dangerous speech occurs right here in Maryland in a case that is referred to a "landmark First Amendment battle" (Niederpruem). The case in question which constitutes this "landmark First Amendment battle" is known as Rice v. Paladin Enterprises, Inc., No. AW-95-3811 (4th Cir, 1997) has ramifications for the entire telecommunications spectrum from the printing of books and other materials to the distribution of these materials through the Internet and mail order catalogs as well as the content of web sites and e-mail (Niederpruem). Paladin Enterprises, Inc. is a company famous for its collection of books and videotapes dealing with subjects such as military tactics and operations, political tracts, and weapons.
The controversy starts in March, 1993 James Perry used a book published by Paladin Press, entitled Hit Man: A Technical Manual for Independent Contractors to murder two women, Mildred Horn and Janice Saunders, and an eight year old quadriplegic boy, Trevor Horn, so that Mildred Horn's ex-husband, Lawrence Horn, could inherit the two million dollars won in a settlement over Trevor Horn's disabilities. Following the murders, Vivian Rice, a friend and guardian of the Horns filed a civil wrongful death law suit against Paladin Press along with other friends and relatives of Mildred and Trevor Horn and Janice Saunders. The plaintiffs maintain that Paladin's publication of Hit Man (authored by the pseudonym Rex Feral) amounted to aiding and abetting James Perry in his murder of Mildred and Trevor Horn and Janice Saunders (Rice).
Interestingly, the First Amendment significance of the case was apparent to both sides as:
The parties agree that the sole issue to be decided by the Court...is whether the First Amendment is a complete defense, as a matter of law, to the civil action set forth in the plaintiffs' Complaint. All other issues of law and fact are specifically reserved for subsequent proceedings (Rice).
Even more significant in this case is the fact that Paladin stipulated that they had full knowledge that their book was being used to assist criminals in breaking the law, and Paladin intended to solicit their business so that Paladin's materials would aid them in committing the crimes as it did in the case of James Perry. The reason that they did this is so that the question of whether a publisher is protected under the First Amendment when their materials is used to aid a criminal could be settled (Rice).
The freedom of speech won the first round when Judge Alexander Williams ruled in the United States District Court for the District of Maryland that Paladin is protected under the First Amendment (Rice). Unfortunately, the ruling was reversed in the United States Court of Appeals for the Fourth Circuit and the case was remanded for trial. Paladin is currently seeking a writ of certiorari from the United States Supreme Court and the case is pending; however its decision will make a considerable impact on the role of "Dangerous Speech" and the First Amendment (Niederpruem).
One area of "Dangerous Speech" that has come under fire in the wake of the murder of Matt Shepard and The Diamondback article by the pseudonym "Carter Clark" is hate speech. The history of rulings on hate speech can be traced back to a 1942 case, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). While Chaplinsky is not a hate speech case, it is germane in that the U.S. Supreme Court upheld his conviction under a New Hampshire statute that prohibited the use of derisive or offensive language to anyone. In Chaplinsky, Justice Murphy wrote in the court opinion that there are certain unprotected classes of speech, specifically, "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace" (Van Alstyne 755). Justice Murphy further clarified their position:
[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality (Van Alstyne 755).
The 1992 case R.A.V. v. St. Paul, 112 S. Ct. 2538, indicates a change in direction for the U.S. Supreme Court. R.A.V. had been convicted of a misdemeanor under the St. Paul Bias-Motivated Crime Ordinance which criminalizes the display of certain racist symbols, in R.A.V.'s case, he had burned a cross on the property of a neighbor. The Supreme Court had struck down the Ordinance because it "impose[s] special prohibitions on those speakers who express views on disfavored subjects" (Van Alstyne 262). What's more, the ordinance specifically targeted the Ku Klux Klan and National Socialists and the ordinance merely prohibited the content of one's speech (Van Alstyne 262).
The following year, in 1993, The Supreme Court upheld a statute that enhances the penalty for committing a crime based on one's "race, religion, color, disability, sexual orientation, national origin or ancestry" in Wisconsin v. Mitchell, 113 S.Ct. 2194 (Van Alstyne 271). The respondent in the case, Tod Mitchell, argued that the use of statements that he made prior to committing assault and battery in enhancing his sentence amounted to punishing him for his speech. Wisconsin maintained that only the conduct is punished by the statute and not one's thoughts. The U.S. Supreme Court maintained that courts often use a defendant's statements as evidence in a trial (Van Alstyne 271).
A very recent court case with issues regarding hate speech and telecommunications just transpired in Berks County, Pennsylvania. This case involves a complaint by Pennsylvania Attorney General Michael D. Fisher filed against ALPHA HQ, Ryan Wilson, Tim Delaire, Bluelantern Inc., Stormfront, Inc., Nevada Business Resources-Deepwell Internet Services, and Network Solutions, Inc. or Pennsylvania v. ALPHA HQ for short (The New York Law Publishing Company). The case involves a group of white supremacists who had placed harassing material on the Internet that involved the employees of the Reading-Berks Human Relations Council. One of the employees, Bonnie Jouhari, was labeled a race traitor and it was suggested that she should be hanged from a tree. The web page also had a cartoon of the Human Relations Council being bombed and a remark about the intelligence of another employee, Ann Van Dyke (The New York Law Publishing Company). Due to these insults, the white supremacists, who call themselves Alpha HQ, were charged with a violation of 18 Pa. C.S. Sec. 2710 (prohibiting threats and harassment) and were ordered to remove their web page from the Internet. In addition, the Internet companies named in the case were ordered not to provide the Alpha HQ with any more service (The New York Law Publishing Company).
One of the major First Amendment issues in this case is that it names an independent service provider as a defendant. Nevada Business Resources-Deepwell Internet Services, the ISP-defendant in the case, can see no reason for Pennsylvania to name them as they have 'no editorial control' on the web sites of their customers (The New York Law Publishing Company). The defendants in Pennsylvania v. ALPHA HQ are definitely going to appeal, and this can potentially develop into an expensive legal battle. Perhaps Pennsylvania v. ALPHA HQ could best be described in the words of Stormfront, Inc. head Don Black who refers to this as a 'frontal assault on the First Amendment' (The New York Law Publishing Company). This case sets a precedent where a judge can order a website to be shut down on the grounds that the information on it is harmful.
Decency in Telecommunications
Turning the focus now to minors, much debate has taken place as to how to protect them without violating the First Amendment rights of adults. With the rapid growth of advancing technology through the use of cyberspace, the easily accessible information on the Internet has caused alarm for many parents and lawmakers. The alarm is being sounded for how to shield the children without denying adults their right to indulge themselves if they so choose to do so. There is no argument that there is an enormous amount of sexually explicit material that can be found on the Internet which affords any user an opportunity to retrieve the information. As Justice Stevens delivered the opinion of the Court in Reno v. American Civil Liberties Union, 117 S. Ct. 2329(1997) he pointed out that "This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as interactive, real time dialogue."(Epstein 316) Herein lies a real problem and challenge to those who can appreciate the growth in technology, but have serious problems with children having an opportunity to be exposed to sexually explicit pornographic material.
The government has expressed an interest in protecting children and has attempted to pass legislation that would regulate the Internet. President Clinton signed the first Communications Decency Act (CDA) into law on February 8, 1996. The same day, the American Civil Liberties Union (ACLU) along with other protesters of the CDA filed suit in the Federal District Court seeking to have the act declared unconstitutional. Actually, the CDA was only part of a larger legislative provision designed to regulate the telecommunications industry. (Epstein 316) In its lawsuit, the ACLU challenged two sections of the act; namely, the "indecent transmission" provision and the "patently offensive display" provision. The indecent transmission section declared it illegal to knowingly use any telecommunications method to transmit any indecent message or to knowingly allow any telecommunications facility to permit any indecent messages being sent to any minor seventeen years old and younger. In the patently offensive display section the focus was on prohibiting the use of any interactive computer service for the purpose of sending or displaying material which offensively showed sexual activities or body organs to any minor seventeen years old and younger. In addition, prohibition was placed on individuals using any telecommunications facility under their control for that purpose. (Epstein 317)
The ACLU led the fight as they attacked these sections of the CDA charging that they were "unconstitutionally vague" and were not specifically designed enough to accomplish its intended goal of protecting minors. They argued that the law unconstitutionally limited adults from access to this sexually explicit material which violated their First Amendment "communication" rights. After the three-judge district court ruled unanimously that the law was unconstitutional, the Attorney General, Janet Reno, appealed to the U.S. Supreme Court and the Court granted certiorari. (Epstein 317)
In Reno v. ACLU the Supreme Court ruled 7-2 that there were parts of the provision which can be declared unconstitutional. Justice Stevens gave the opinion of the Court in this case, saying that the two provisions of the CDA which the ACLU challenged violated the "freedom of speech" right that is protected by the First Amendment. The Court reasoned that CDA had a very unprecedented prevention of speech and that its use of the terms "indecent" and "patently offensive" posed a problem. The Court reasoned that the CDA posed the problem of restricting large amounts of non-pornographic material that the provision was not designed to punish, that could have good educational or other value. The Court reasoned that the CDA also had a vagueness problem as it amounted to a content based regulation of speech. The Court believes that regulations which are content based are a violation of the First Amendment. The government tried to use the cases of Ginsburg v. New York, 390 U.S. 629 (1968), FCC v. Pacifica Foundation, 438 U.S. 726 (1978) and Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986) to support its argument. In contrast however, Justice Stevens claims that these cases raise doubts as to the constitutionality of the CDA rather than support the government's claims. In the Ginsburg case the Court used what would seemingly help the cause of the CDA ,but the Court for certain reasons saw otherwise. The Ginsburg ruling appears to be in the CDA's favor as it was ruled in this case that is is constitutional for the government to prohibit the selling of certain obscene material to minors under 17 years of age. The Court upheld this statute and struck down the CDA because they believed that the N.Y. statute applied to commercial transactions and not speech; whereas they believed that the CDA statute had the potential through its vagueness of prohibiting not only speech, but many forms of speech which are not in any way obscene or sexually explicit in the first place. Other differences between the N.Y. statute and the CDA was that the CDA banned both adults and minors from being able to view obscene material, while the N.Y. statute blocked only minors.
In the Pacifica case the Court ruled that a Federal Communications Commission (FCC) order was not unconstitutional for taking possible FCC administration sanctions of a 12-minute monologue called "filthy words" on the grounds that it contained words of a sexually explicit nature that could be played in the afternoon when children might be able to listen to it. While this seems to show that according to this logic, the Court should rule that the CDA provisions against the showing of sexually explicit material on the Internet is constitutional because children might have access to it. The court found differences in the Pacifica ruling and the CDA which they felt permitted the law to be constitutional while the CDA to not be constitutional. One primary reason why the Court believed that the CDA was unlike the FCC order was the fact that "the CDA's broad categorical prohibitions are not limited to certain times and are not dependent on any evaluation by any agency" that had familiarity with the characteristics of the Internet.
In the Renton v. Playtime Theaters case the Court upheld the constitutionality of a zoning ordinance to keep adult movie theaters out of residential neighborhoods. The aim of the ordinance focused on the "secondary effects" of possible crimes and declining property value. When the government used the same analogy and claimed that the CDA provided a "cyber zone" on the Internet, the Court rejected the government claims and reasoned that this was not the purpose of the CDA. It said that "the CDA is a content based blanket restriction on speech, and as such cannot be properly analyzed as a form of time, place, and manner regulation" in the same way the ordinance is.
In the other cases, the Court took into consideration the history of extensive government regulations of the broadcast medium, the scarcity of available frequencies at is inception, and its "invasive nature." See Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) and FCC v. Pacifica Foundation. Cases that have come before the Supreme Court in trying to protect minors have taken into consideration special justifications for regulating the broadcast media that may not be applicable to other "speakers." In Southeastern Promotions, Ltd. v. Conrad ,420 U.S. 546 (1975), the court ruled that "each medium of expression .. may prevent its own problems."
The Court was convinced that the government did not provide a statute that was precise enough to meet the standard of the First Amendment. In attempting to keep minors from any "potentially harmful speech," the CDA suppressed too much of the speech that adults have a constitutional right to engage in. The Court had ruled in Sable Communications of California,Inc. v. FCC (1994) that "sexual expression which is indecent but not obscene is protected by the First Amendment."
With the defeat of the CDA, John McCain, senator from Arizona and chairman of the Committee on Commerce, Science, and Transportation, along with Senator Bryan of Nevada, introduced a new bill during the summer of 1998. The purpose of the bill (S.1482) was to try and address the problem of harmful sexually explicit material being made available to minors on the Internet and to respond to the Supreme Court ruling on the "indecency" and "patently offensive" provisions of the CDA. while also addressing the concerns of the Court in the case of Reno v. ACLU. This provision has been titled, "Children's Online Privacy Protection Act of 1998." It has also been called "The Children's Online Protection Act, COPA, and CDA II.(Committee) In writing a report about this new provision, Senator Bryan made it clear that the committee and supporters of COPA believe that "the government has a compelling interest in protecting children." He acknowledges that even though the parent has the primary responsibility for the child, the parent should also have the "support of the law in protecting the welfare of the child." Bryan points out that this is the real issue that S.1482 addresses. Much planning went into refining this bill to comply with the issues raised before with CDA., taking great care to make sure that parents maintain authority and that a minor is defined as those under 17 years old. (Committee)
Despite efforts to revise the provision there is still opposition to this bill. Senator Patrick Leahy from Vermont raised opposition to COPA declaring that while narrower then its predecessor, "this legislation continues to suffer from substantial constitutional and practical defects." He declares that he is interested in protecting children from harm, but he believes that "we have a duty to ensure that the means we use to protect our children do not do more harm than good." (Commercial)
On October 21, 1998, when Congress passed the Omnibus Appropriations bill, COPA was included. Senator Leahy thinks that was a mistake. On October 22, 1998 the ACLU, the Electronic Privacy Information Center and the Electronic Freedom Foundation filed a court challenge to COPA. They are trying to prevent this new law from going into effect which is scheduled to happen 30 days from the 21st of October when it was signed. The ACLU charges that COPA, like its predecessor, is too broad and censors protected free speech. (Protect)
Stay tuned to see how round 2 will turn out!
"Junk" Faxes and Unsolicited E-mail
In the modern technological age, other forms of speech have made the interpretation of the First Amendment much more difficult. The invention of the facsimile machine and electronic mail have opened up new ways of communicating. Faxing and E-mailing have been useful tools to reach thousands of people almost simultaneously. Advertisers and solicitors have discovered that the fax machine and the computer are ideal methods of presenting their products and ideas. Along with the advantages of these new technologies, there is a potential for serious harm. These machines can be useful to those who wish to be solicited about a product or idea but for those who wish not to be inundated with "junk" mail, the solicitations are at least a nuisance and at most a hazard.
Recently, the government has attempted to regulate the electronic solicitation by passing laws that restrict the nature in which the consumer can be contacted by solicitors.(Thomas) Many of the laws have inevitably ended up in the court system on the grounds that the solicitors felt that their First Amendment rights were violated. As of yet, none of the cases have reached the Supreme Court but this may change if the Congress passes a bill that would create rules for Internet transmission of unsolicited E-mail (called spam).
The facsimile machine was the first of the two technologies to be regulated. In the late 1980's the fax machine became a vital piece of office equipment. Early in the 1990's, " unsolicited or junk" faxes began to crop up. Solicitors would use automatic dialing systems in order to call every phone number in a particular market. The faxes began to tie phone lines up not only in businesses or individuals with fax machines but in hospitals, paging services, cellular phone lines and other phone outlets.
In 1991, Congress introduced a set of bills aimed at preventing unsolicited faxes.
H.R. 1304 and S. 1410, the Telephone Consumer Protection Act of 1991 (TCPA) amends the Communications Act of 1934 to:
"Prohibit any person within the United States from: using an automatic
telephone dialing system (ATDS) or an artificial or prerecorded voice (APV)
to make a call to any emergency telephone line of a hospital, medical physician
or service office, health care facility, poison control center, or fire
protection or law enforcement agency; to the telephone line of any patient
room of a hospital, health care facility, elderly home, or similar establishment;
or to any telephone number assigned to a paging service, cellular telephone
service, specialized mobile radio service, or radio common carrier service
or any other service for which the called party is charged for the call;
(2) initiating any call to a residential telephone line using an APV to
deliver a message without the consent of the called party, with specified
exceptions; (3) using any telephone facsimile machine (FAX), computer,
or other device to send an unsolicited advertisement to a FAX machine;
or (4) using an ATDS in such a way that two or more telephone lines of
a multi-line business are engaged simultaneously."
The bills also makes it unlawful for any person in the United States to:
"(1) initiate any communication using a FAX or ATDS that does not comply
with technical and procedural standards or to use such devices in a manner
that does not comply with such standards; or (2) use a computer or other
electronic device to send any message via FAX unless such person clearly
marks on the document the date and time it is sent and identifies the entity
sending the message and the telephone number of the sending machine or
entity. "
S. 1410
"Directs the Federal Communications Commission (FCC) to prescribe regulations to implement such requirements. Requires the FCC to consider allowing businesses to avoid receiving calls made using an APV to which they have not consented. Authorizes the FCC to exempt from such requirements: (1) calls that are not made for a commercial purpose; and (2) categories of calls made for commercial purposes if such calls will not adversely affect privacy rights or do not include unsolicited advertisements. Authorizes private actions and the recovery of damages with respect to violations of such requirements.
And
Directs the FCC to: (1) initiate a rulemaking proceeding concerning
the need to protect residential telephone subscribers' privacy rights to
avoid receiving telephone solicitations to which they object; and (2) prescribe
regulations to implement methods and procedures for protecting such privacy
rights without the imposition of any additional charge to telephone subscribers..."
(Thomas)
The bills also allowed individuals, businesses and States to file for damages for violation of the regulations. The bill S. 1410 was enacted into law in December, 1991 as Public Law 102-243. (Thomas)
Since the enactment of the law there have been contests to the law regarding the First Amendment speech rights of those who wish to express ideas using the automatic dialing system and the fax machine. Destination Ventures LTD. v. FCC 46 F.3d 54 (9th Cir. 1995) was a case involving the commercial speech aspect of the law. Destination stated that their First Amendment rights were violated on the grounds that the laws bans only commercial advertising. Destination Ventures sent faxes regarding seminars for travel agents. The FCC found them in violation of the TCPA. The case reached the 9th Circuit Court of Appeals which affirmed the legitimacy of the law by citing two cases (Board of Trustees v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 3034, 106 L.Ed.2d 388 (1989) and Central Hudson Gas and Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 566, 100 S.Ct. 2343, 2351) where the Court found that "Regulation of commercial speech must directly advance a substantial governmental interest in a manner that forms a "reasonable fit" with the interest" The Court ruled that the transmission of unsolicited faxes did shift the cost onto the consumer and allowed for the government to have an interest in regulating the transmission and thereby restrict the speech of advertisers (Findlaw).
Currently, a similar set of laws are being formulated in Congress regarding e-mail. E-mail has surpassed the fax machine as the leading method for advertisers to reach massive amounts of consumers. During the current session of Congress, no less than 5 bills were introduced regarding the regulation of electronic mail(Thomas). Most of these laws seem to follow the same pattern as the TCPA that creates a civil penalty for unsolicited mail. Members of Congress from both sides of the isle have introduced legislation that would make it unlawful to initiate the transmission of e-mail if it has a fictitious address, if the sender fails to cease sending messages after the user gives prior notice or disobeys the rules of an Internet provider regarding bulk transmission of e-mail. Most of the bills use the same method of amending the Communications Act of 1934.
The passage of a law banning unsolicited mail may actually cause more problems than the "junk" fax laws because of the greater potential of the computer and e-mail. Fax advertisement was limited by the medium. The Internet offers much more enticement for advertising. Many cases have already been tried in the lower courts concerning the transmission of unsolicited e-mail. Many of the major Internet providers have filed suit against an advertising agency called Cyber Promotions Inc. as well as other bulk e-mailing organizations. America Online (AOL), Compuserve and other service providers have claimed that the transmission of E-mail was costing them money and lost time by overloading their data servers with the mass mailings. The providers attempted blocked the transmissions of Cyber Promotions ads as well as others and Cyber sued. In America Online v Cyber Promotions Inc. 96-5213 U.S. District Court For the Eastern District of Pennsylvania, (1996), Cyber contended a First Amendment right to transmit information and the Court struck down its claim on the grounds that AOL is a private corporation and is allowed to block transmissions to their members. (Bureau of National Affairs Inc.) This suit was followed by suits from the other online providers claiming the same. Another case that came before the courts was in Travis County Texas. The case of Parker et. al. v. C. N. Enterprises and Craig Nowak District Court of Travis County, Texas Judicial District 345 Judicial District Final Judgement (1997). On March 31 and April 1, 1997 the defendant Nowak sent unsolicited E-mail en masse to many thousands of people using the false email address of flowers.com, a name used by Tracy LaQuey Parker and Zilker Internet Park as a domain name for their business. Because many of the e-mail addresses were not valid, thousands of junk mail messages were returned to Parkers' computer creating service disruptions and lost time. The court found for the plaintiff and the defendants were charged to pay the plaintiffs damages of $18,910. (Tiger Den)
These cases are merely the beginning of such lawsuits that will occur as the use of the Internet expands and once again, Congress regulates the speech elements of this relatively new technology.
But with this regulation may come some other questions. In the AOL v. Cyber case the question of whether the Internet is a forum was broached. There was little debate on the issue, but in such cases as Krishna Consciousness v. Lee 112 S. Ct. 2701 (1992), the subject of what constitutes a traditional forum is was discussed. The Internet has chat rooms and e-mail discussion groups which would tend to make a good argument that it is a public forum in which case there may be the possibility of the a case similar to Pruneyard v. Robins 447 U.S. 74 (1980) where the Internet provider may not be able to block the transmission of ideas including advertisements and ideas.
There are other questions like what constitutes a request for solicitation? Is applying for a credit card an approval to allow solicitation by the businesses that accept that credit card. Is filling out a membership form on a web site a request that allows junk mail to come streaming in? What about downloading a company's software? Is that an invitation for them to notify you when they update their products? These questions are all potential sources of future litigation.
There are also issues regarding the rights of the advertisers or those who wish to express ideas. If an individual wanted to e-mail an entire city in regards to a political issue such as taxes or a town meeting, is that permissible? What if a Congressman decided to E-mail his constituents rather than use up his franking money is that in violation of the law? All of these issues remain to be debated if there is a law limiting the harassment of the Junk Fax and E-mail.
As one can clearly see, rules regarding the restriction of speech in
telecommunications are still not decided. As the rate in which communication
technology is increasing, so will the legislation and court cases that
will attempt to clarify the laws. Many of the cases cited have yet to reach
the Supreme Court and those laws that have reached the Court are still
subject to change. The four topics mentioned above have shown that this
area of speech will prove to be very active in the years to come.
Works Cited
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Bureau of National Affairs Inc Electronic Commerce and Law Report; In the United States District Court for the Eastern District of Pennsylvania; America Online v. Cyber Promotions Inc. C.A. No. 96-521 (visited: Nov. 14, 1998) http://zeus.bna.com:80/e-law/cases/cyber32.html
Charns,Alexander; Cloak and Gavel: FBI wiretaps, bugs, informers, and the SupremeCourt. University of Illinois Press. Urbana and Chicago; 1992
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(last modified: Oct. 22,1998)(visited: Nov. 14, 1998)
<http://www.ljx.com/LJXfiles/harassment/paaghate.html
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Tiger Den Internet Services web site; In the District Court of Travis County, Texas Judicial District 345 Judicial District Final Judgment. Tracy LaQuey Parker, Zilker Internet Park, Inc., Patrick Parker, Peter Rauch. Texas Internet Providers association and EFF-Austin, Plaintiffs vs. C.N. Enterprises and Craig Nowak, Defendants; http://www.tigerden.com/junkmail/cases/flowersjudgment.html
Visited November 16,1998
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Copyright 1998
Andrew Chawla, Jefemiah Smith, Robby Freidman, and Jeffrey
Eckert.
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