Current Free Speech Doctrine free essay sample

# 8211 ; Will It Work On The Essay, Research Paper Current Free Speech Doctrine: Will It Work on the Internet? The Internet offers a much greater possible for synergistic communicating between informationsenders and receiving systems than the more traditional methods of communicating such as newspaper, wireless andtelevision. Freedom of address ascertained by the fundamental law is non an absolute right. Depending on themedium through which information is delivered assorted grades of the freedom to show one # 8217 ; s self isprotected. Internet communicating may be correspondent to either a specific bing communicating medium oreven several. Current free address protection begins to disperse as it is applied to the uncertainconfines of the freshly developed Cyberspace. The hidebound attack to liberate address protection iscentered on nucleus values and outputs consequences that are fundamentally impersonal so that content allowed through onecommunication medium is allowable in all media. Freedom of address and of the imperativeness i s a basic renter of United States constitutional jurisprudence. We will write a custom essay sample on Current Free Speech Doctrine or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page Perhapsconcern for the English usage of anterior restraint ( licensing of imperativeness ) and incendiary libel was the reasonfor including the first amendment in our measure of rights. When the first amendment became jurisprudence the printedpage was the most widely used non-verbal medium of address. Speech, as we understand it, involves morethan verbal communicating. Speecht includes images, films, wireless, telecasting and expressive behavior [ Shelton v. Tucker, 364 US 479 ( 1960 ) ] . As engineering advanced and extra communicating mediumdeveloped, address was given assorted degrees of first amendment protection depending on the medium throughwhich the information was delivered. Cyberspace is a web of computing machine systems allowing literally 1000000s of people tocommunicate with one another on an hourly footing. Cyberspace may mirror other types of communicationmedium singularly or several at one clip. Current free address protectionapproaches break down when applied to Cyb erspace since one may forbid address when delivered by onemedium but permit indistinguishable address delivered via a different medium. A nucleus values approach protectsidentical address regardless of the medium in which it is delivered. So it is a foundation forCyberspace and promotes development of new engineering. That, # 8220 ; Congress shall do no jurisprudence # 8230 ; , or foreshortening the freedom of address # 8221 ; , suggests an absoluteright to talk. Justice Black dissenting in Konigsberg felt that freedom of address was absolute [ Konigsberg v. State Bar of California, 366 US 36 ( 1961 ) ] . Justice Harlan composing for the majorityrejected an absolute right, observing that protected freedom of address was less than an limitless licence totalk. When analyzing a limitation on speech the tribunal will look for a compelling authorities involvement towarrant the restraint on address. Besides the tribunal will look to find if the ordinance accomplishesthe governmental ai m in the least restrictive manner. Some signifiers of address are non protected by the first amendment. Contending words, intended andlikely to arouse a physical response transgressing the peace may be prohibited [ Chaplinsky v. New Hampshire,315 US 568 ( 1942 ) ] . Criminal legislative acts may penalize address recommending improper behavior. Under theBrandenburg trial the province must turn out that: 1 ) the talker subjectively intended to motivate unlawfulactions, 2 ) that in their context the words spoken were likely to bring forth at hand anarchic action, and 3 ) that the words used objectively bucked up incitation [ Brandenburg v. Ohio, 395 US 444 ( 1969 ) ] . Obscene speech/works are non given First amendment protection. Miller V California is the currenttest a tribunal should use in finding if address is obscene [ Miller v. California, 413 US 15 ( 1973 ) ] . The trial has three parts: 1 ) whether an mean individual using modern-day community criterions wouldfind the work tak en as a whole entreaties to prurient involvements, 2 ) whether the work depicts or depict ina obviously violative manner sexual behavior specifically defined by applicable province jurisprudence, and 3 ) whether thework taken as a whole, lacks serious literary, artistic, political or scientific value. The first twoparts of the trial apply based on criterions of the local community so that what is obscene may change withthe vicinity. The 3rd portion is based on a sensible individual criterion and is non based on local communitystandards. For a work to be found obscene all three parts of the trial must be found. Indecent address does have first amendment protection. However in the context of broadcastradio and telecasting tribunals have upheld FCC ordinance of # 8220 ; grownup address # 8221 ; . In Sable V FCC the courtinvalidated a jurisprudence forbiding indecorous Dial-a-Porn phone messages which were non obscene [ SableCommunications v. FCC, 492 US 115 ( 1989 ) ] . There the tri bunal found Congress could modulate to protectminors by necessitating usage of recognition cards, entree codifications and scrambling regulations. Early instances did non give commercial address ( advertisement ) foremost amendment protection. InPittsburgh Press the tribunal held that the exchange of information in commercial address was of import as inother types of address [ Pittsburgh Press Co. v. Pittsburgh Commission, 413 US 376 ( 1973 ) ] . Modern casesprovide foremost amendment protection to commercial address. Hate Speech, verbal maltreatment and force directed at cultural groups, homophiles and religiousgroups has increased in recent old ages. Some college campuses have adopted address codifications prohibitingracist, sexist and homophobic address [ American Civil Liberties Union, Briefing Paper Number 16 HateSpeech on Campus ] . Medium of Speech Regulated Speech has been regulated otherwise depending on the medium overwhich the communicating has been made. The printed med ium has been found to bask the broadest freedom ofspeech protection. When wireless and telecasting instances arose the tribunals upheld the right of FCC regulationbased on the scarceness of broadcast channels and to supply for the demands of viewing audiences and hearers ratherthan accredited broadcasters [ FCC v. League of Women Voters, 468 US 364 ( 1984 ) ] . For overseas telegram telecasting somecourts have held that authorities has less ability to modulate plan content than for broadcasttelevision [ Cruz v. Ferre, 755 F. 2d 1415 ( 11th 1985 ) ] . Different FCC ordinances apply to thecommercial usage of phone lines [ Sable Communications v. FCC, 492 US 115 ( 1989 ) ] . Congress has appliedmany ordinances to satellite broadcasts that were at one clip merely applied to air telecasting. Satellite does non endure from limited channels as broadcast telecasting does s! o tribunals may allow less ordinance of orbiter broadcasts than traditional telecasting. Finally it hasbeen held that a individual may possess obscene stuff in their ain places [ Stanley v. Georgia, 394 US 557 ( 1969 ) ] , so while production or distribution of obscene stuff is non protected ownership is at somelevel. U.S. 5 Thomas, found California based system operators, who operated a bulletin board, guilty ofviolating Tennessee lewdness Torahs [ US v. Thomas, Case No. 94-20019-G ( WD Tn 1994 ) ] . A Tennessee postalinspector joined Thomas # 8217 ; system. He downloaded sexually oriented images, ordered a picture tape andsent Thomas an unasked child-porn picture. A Memphis jury found the California twosome guilty. Hereprotected speech/activity legal in California was illegal in Tennessee. An statement can be made that thecommunity criterion of Miller would let a conservative community to coerce their criterions on anotherstate for behavior performed in the more broad province. An illustration of how Cyberspace can increase discourse of look and thoughts involved hate address messages on Prodigy. Some users denied Holocaust occurred and disparaged Jews. Other users were able torespond, disagree with and label as bigots the original group. In reviewing the incident the ElectronicFrontier Foundation (EFF) found that on balance bothsides were able to express their viewpoints. [Electronic Frontier Foundation, Letter to Office of PolicyAnalysis and Development NTIA, US Department of Commerce, by Shari Steel, staff attorney, 4-26-93]. Dueto the interactive nature of Cyberspace more people are able to express themselves. Unlike printed presswhere there are publishers and readers or television where there are broadcasters and viewers theInternet allows a far greater level of interaction. In Cubby, Inc. v CompuServe, CompuServe was found not to be liable for distributing the materialsof others [Cubby, Inc. v. Compuserve, Inc., 776 F Supp 135 (SDNY 1991)]. Like a real world distributorof books it would not be reasonable to expect CompuServe to review all messages and files passing throughtheir system. The major criticism involving free speech and Cyberspace relate to the media specific nature ofcurrent regulations [Robert Corn-Revere, New Technology and the First Amendment: Breaking The Cycle ofRepression, 17 Hastings]. Each time a new technology has developed new criteria is established. When abreakthrough in technology first emerges there is no solid framework that developers, users, governmentor courts can look to for guidance. As a result what may be protected in print media is prohibited frombroadcast television. In Cyberspace a user or system operator can wear numerous hats. When acting as apublisher one is responsible for libel and defamation. If acting as a distributor of someone else’sproduct there will likely be no liability. [Cubby, Inc. v. Compuserve, Inc.776 F Supp 135 (SDNY 1991)]. Others point out that Cyberspace is unlike other communication media and therefore should not beregulated at all or should have a different standard [Anne Wells Branscomb, Anonymity, Autonomy, andAccountability: Challenges to First Amen dment in Cyberspace, 104 Yale Law Journal, 1639, 1995 ]. Current politics is attempting to draft legislation to either restrain or protect the Internet from theregulatory arm of the government. Robert Corn-Revere has described the inconsistent protection/ regulation through an exampleinvolving a regulator simultaneously viewing an identical sex scene on five televisions. One of thetelevisions is receiving its signal from a broadcast tv station, another from a cable television feed,another from a VCR, a fourth via satellite and the fifth via fiber opticphone lines. The paradox is that identical expression/content on the five sets may be subject to five ormore types of regulatory schemes and receive varying levels of free speech protection. The difference inregulation may be ascribed to the law reacting to new technologies in a manner to fit the level ofregulation to the developing technology. Revere describes three judicial approaches which may be used in determining what level of fr eespeech is afforded, incremental approach, revisionist and traditionalism. The incremental approachreflects current reality where different standards are applied to different media even though the speechcontent may be identical. This approach provides full free speech protection only to the printed media. A disadvantage is the lack of a framework that can be applied to new technologies, like Cyberspace. Therevisionist approach is based on balancing private and public interest to maximize the good for all. Likethe incremental approach, changes in technology outpace the regulators and a void develops whenever a newcommunication medium emerges. To fill the void regulators tend to attempt using regulations designed forother communication forms that may not work well. The traditional approach ignores the medium through which communication is transmitted andanalyzes the content of the message to test if it warrants free speech protection. Laurence Tribe hasreferred the constitutionâ€⠄¢s core values [Lawrence H. Tribe, The Constitution in Cyberspace, preparedremarks, Keynote address at the First Conference on Computers Privacy, (1991)]. The core values wouldbe universal beliefs and ideals that would not change with new technologies. Tribe put forth five principles that applied to Cyberspace issues. They would maintain the FirstAmendment’s vitality and ability to guarantee free speech. First the constitution limits what governmentmay do but advances in technology do not expand what government may do. Secondly private property isprivate and the government can not make private property public subject to the fifth amendment. The thirdprinciple is that government may not control the content of speech/information. Tribe submits thatwriting of computer viruses (information content which is speech) would be constitutionally protected. But the use of viruses tothe harm of others can be prosecuted like yelling fire in a theater where no fire exists. The fourthprin ciple is that right and wrong do not change with technology. And the final principle is thatConstitution’s meaning should not vary as technology changes. The Constitution’s principles must beinterpreted in a dynamic way. One example provided was how the court in Olmstead held that wiretappingwas not a search invading a person’s right to privacy in the same way a physical search of a house wouldbe [Olmstead v. US, 389 US 351 (1967)]. In Katz, the Supreme Court repudiated the earlier decisionfinding that the fourth amendment protected people not places and that wiretapping was an invasion of aperson’s privacy [Katz v. US, 389 US 351 (1967)]. The traditionalist or core value approach provides a stable framework for determining whetherthere is a compelling governmental interest sufficient to warrant a restriction on free speech and if theregulation is narrowly tailored. Regardless of the medium of speech identical content would receive thesame level of protec tion. The traditionalist approach also provides aframework to apply to emerging technologies like Cyberspace and technologies unknown at present [RobertCorn-Revere, New Technology and the First Amendment: Breaking the Cycle of Repression, 17 Hastings]. Existing free speech protection devices that regulate to a varying degree based on the medium ofcommunication rather than the content transmitted do not provide a suitable framework to protect speechin Cyberspace. A core-value approach to speech protection provides equal protection to identical speechcontent regardless of the medium through which the information is transmitted. A core-value approachtherefore provides a stable framework for addressing free speech issues in Cyberspace and technologiesyet to develop. In the words of the late Professor Meiklejohn, who has articulated a view of the first amendment whichassumes its justification to be political self-government, has wisely pointed out that, â€Å"what isessential is not tha t everyone shall speak, but that everything worth saying shall be said†Ã¢â‚¬â€œthat thepoint of ultimate interest is not the words of the speaker but the minds of the hearers [A. Meiklejohn,Political Freedom: The Constitutional Powers of the People 25-28]. Can everything worth saying beeffectively said? Constitutional opinions that are particularly solicitous of the interest of massmedia–radio, television, and mass circulated newspaper– devote little thought to securing thedifficulties of access to those media The overwhelming public use of the Internet has forced a majorfocus on the public’s access to a mass medium. The Internet’s purpose of creating an opportunity forexpression has been as important as ensuring the right to express ideas without fear o!f governmental reprisal.