Regulating IndecencyCS 340

Fall 2014

Regulating Indecency: regulating the sale of pornography• A New York statute made it illegal to willfully sell material “harmful to minors” (depicting nudity)

to someone under 17.

• Ginsberg v. New York, US S. Ct. 1968• NY statute found constitutional

• Gives a constitutional precedent that pornography can be regulated for minors

Give it your best guess: Who is George Carlin?A. Some old comedianB. A narrator on Thomas the

Tank EngineC. I have no ideaD. A and B

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Regulating Indecent Speech:FCC v. Pacifica Foundation et al.• Skit from George Carlin in 1973• (1973 skit) George Carlin’s “Filthy

Words”: clean actual

• Subject of the case FCC v. Pacifica Foundation US S. Ct. 1978

Pacifica

• FCC power to regulate “indecent broadcasting”• 18 U.S.C. 1464

• “Of all forms of communication, broadcasting has the most limited First Amendment protection. Broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children.”

• The Carlin case showed the government could restrict indecent material – that the material did not have to rise to obscenity.

Time, place, manner restrictions

Content Regulation in Broadcasts

• 1978-1987: In deciding whether content is prohibited, look for whether it is a repetitive occurrence or an isolated instance for whether it was an actionable offense.• In 2001, FCC issued a regulation with penalties on nudity and profanity for

broadcasts 6 am to 10 pm.• 3 factor approach (explicitness; repetition; pandering)• Janet Jackson & Justin Timberlake wardrobe malfunction, CBS $550 million fine.

• In 2004 , with the Golden Globes Order this regulation was extended to “Fleeting expletives”• Class discussion on the fleeting expletives that got Congressional

attention

Review: What is a fleeting expletive?

A. A fartB. The uttering of a one-off cuss

wordC. A series of cuss words uttered

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What is Chilling?

A. Cooling food or drink in the fridge.

B. Sitting around doing nothing.

C. A situation where speech or conduct is suppressed by fear.

D. All of the above

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Content Reg. (cont’d)

• A 2010 ruling in the 2nd Circuit states that FCC policy “violates the First Amendment because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue…”

• Also its vagueness was found to violate 5th amendment due process.

• Appealed, cert. granted, June 2012 decision in FCC v. Fox

FCC v. Fox Television StationsU.S. Supreme Court (2012)• Facts & lower court holdings: • Fleeting Expletives cases: F bombs with Cher, Richie & Bono at award shows;

F word held as actionably indecent no matter context/repetition. Golden Globes rule post-dated these utterances.• NYPD Blue nudity: patently offensive by contemporary standards; compare to

Schindler’s

• Issues: Did the FCC give sufficient prior notice or were the FCC regulations unconstitutionally vague?• Held: insufficient notice; Ct. does not address 1st Amendment

concerns.

Chilling of Speech:Justice Bork and the V.P.P.A.

• Justice Robert Bork was an unsuccessful Reagan nominee for S. Ct.• http://epic.org/privacy/vppa/

• Jan. 10, 2013 update to VPPA to allow consumers to share rental history on social media• http://www.metrocorpcounsel.com/a

rticles/22197/ftc-updates-online-privacy-acts-coppa-and-vppa

• http://money.cnn.com/2013/01/10/technology/social/netflix-vppa-facebook/

Opinion: As to regulation of indecency, should the Internet be treated likeA. RadioB. TelevisionC. Print

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The Internet and Obscenity & Indecency• Widespread availability of porn on the Internet led to the

Communications Decency Act of 1996 to protect children• 2 provisions• “indecent transmission” & “patently offensive display”

• Prohibited the knowing transmission or display of obscene or indecent messages to recipients under 18

• Penalties: fines and/or 2 yr imprisonment• There was a good faith defense

• Subject of the case US Supreme Court case Reno v. ACLU (1997)

Reno v. ACLUUS Supreme Court Decision, June 1997• Ruled these two provisions of the CDA unconstitutional on First

Amendment grounds• Why?

• Ct noted “each medium of expression … may present its own problems … special justification of regulation (exist) for broadcast media that are not applicable to other speakers … These factors are not present in cyberspace.”

Reno cont’d

• Ct notes that the Internet is “not as invasive as radio or television.” Seldom is content “encountered by accident.”• Ct notes the importance of having to take “affirmative steps” to

encounter the material• Ct says provisions are vague (did not follow Miller test), penalties are

severe, and could operate to “chill” legitimate speech.

Reno cont’d (2)

• Ct says • “the burden on adult speech is unacceptable if less restrictive alternatives

would be at least as effective in achieving the legitimate purpose the statute was enacted to serve”• This statute could not be construed to be narrowly tailored.

• “Free Expression on the Internet is entitled to the highest level of First Amendment protection.”

Opinion: Should the government be able to require sites ID before pornographic material is presented?

A. YesB. No

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Ashcroft v. ACLU

• A case that went to the US Supreme Court twice, 2002 & 2004 over the Child Online Protection Act (COPA, a.k.a. CDA II)• The provisions in question used the Miller standard to define what is

harmful to minors.• Law stated that operators of commercial sexually explicit websites

must collect ID in the form of a credit card number before visitors could access the material.

• Ruling: Found these provisions unconstitutional.

Ashcroft v. Free Speech Coalition

• US S Ct 2002• Struck down Child Pornography Prevention Act of 1996 as substantially

overbroad• Prohibited any visual depiction including film, photo or computer generated image that

is of or appears to be of or suggests a minor engaging in sexually explicit conduct.

The Multnomah case – US v. American Library AssociationSupreme Court decision, June 2003

• Children’s Internet Protection Act• Provides funding for schools and libraries

• For computer equipment: LSTA• For discounted Internet connection subsidies:

e-rate• To get and retain, must show your computer systems have filters in

place to reduce exposure to obscene materials.

Multnomah’s procedural history

• A.L.A sued US government in a federal district court claiming that CIPA requirement violated the First Amendment• The district court held for the A.L.A. saying that the CIPA’s filter

requirement operated as an unconstitutional prior restraint on 1st amendment rights.

What is a Prior Restraint?

• Term referring to a government’s proscription to prevent materials or speech from being disseminated.

• Typically, if a law or policy is a form of a prior restraint, it would be subject to strict scrutiny.

What is Strict Scrutiny?

• A standard of judicial review• 3 prong test• Compelling Government Interest• Law/policy is narrowly tailored• Uses the least restrictive means for achieving that interest.

• When is strict scrutiny used?• When a fundamental constitutional right is in question• When a government law uses a “suspect classification”

Back to Multnomah…

• S.C. granted cert and heard oral arguments.• Opinion: a plurality opinion (4 justices)• Concurrences- two• Dissents: two, Stevens; Souter (Ginsberg joined)

• Issue: whether libraries using the CIPA filters violate the First Amendment• Holding: No• this reverses the district court’s decision

Reasoning in the opinion

• Libraries: role in our society• Never the aim for “universal coverage”, just material “of greatest direct

benefit” & “appropriate quality”• Librarians have always made content judgments.

• Evaluated with a rational standard of review.

• Rejection of the idea of the Internet access as a “public forum”• Facts: Importance of ability to disable filter• What about embarrassment?

Statement of Rule, Policy

• The government has broad latitude in creating legislation to further public policy & set limits that public funds spent for the purposes authorized• This is the Rust standard.• http://en.wikipedia.org/wiki/Rust_v._Sullivan

• Filtering software was a reasonable way of helping to guard against porn & does not violate the First Amendment.

Opinion: Do you agree with the Supreme Court in Multnomah?A. YesB. No

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