Global Networks and Local Values A Comparative Look at Germany and the United States (2001) / Chapter Skim
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5 Free Speech and the Internet
5 Free Speech and the Internet
Pages 106-132
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From page 106... ...
Therefore, this chapter and the next will address these issues. The intention is to discuss them as examples of the tensions and challenges that global networks introduce in a society's values, but these are issues with such strong legal overtones that it is impractical to approach them without incorporating legal considerations into the discussion as well.
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From page 107... ...
Generally speaking, formal values such as free speech establish rights and procedures that enable a society to function effectively and, it is hoped, fairly. But it takes substantive values to provide the glue, the shared outlook that makes a society more than a collection of individuals.
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From page 108... ...
5.3.1 Hate Speech Hate speech can be defined as the willful public expression of hatred toward any segment of society distinguished by a characteristic such as iMichael Thompson, Richard Ellis, and Aaron Wildavsky, 1990, Cultural Theory, Boulder, Colo.: Westview Press; for an application to the topic of this report see Michael Thompson, 2000, "Global Networks and Local Cultures: What Are the Mismatches and What Can be Done About Them? ," in Christoph Engel and Kenneth H
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From page 109... ...
Therefore, attempts to proscribe hate speech using legal remedies such as the criminal code or municipal regulations have invariably been struck down by the Supreme Court, based on the idea that such remedies violate the constitutional right to freedom of expression contained in the First Amendment. Indeed, because Article 20 of the International Covenant on Civil and Political Rights3 required signatory states to agree that "any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law," the United States refused to ratify that part of the Covenant.
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From page 110... ...
, the Supreme Court held that the First Amendment even protects speech that encourages others to commit violence, unless the speech is capable of "producing imminent lawless action." Thus, arguing that "if the First Amendment protects speech advocating violence, then it must also protect speech that does not advocate violence but still makes it more likely," a threejudge panel of the 9th Circuit Court of Appeals held that a Web site and posters calling abortion doctors "baby butchers" and criminals were protected by the First Amendment. The court stated that "political speech may not be 4343 U.S.
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From page 111... ...
en bane granted, 268 F.3d 908 (9th Cir, October 3, 2001~. The latter citation refers to an order from the court that the case be reheard by the en bane court, with the threejudge panel opinion not being cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en bane court.
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From page 112... ...
expect this vigilance of Germany. In addition to measures targeted against hate speech, there are also German laws that prohibit the defamation of victims of National Socialist crimes, denial of the Holocaust, wearing of the swastika, and distribution of National Socialist propaganda.
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From page 113... ...
It has led to a broad consensus on the need to place limits on freedom of expression in order to preserve freedom generally. This practical explanation raises the question of whether it is fair to characterize the American situation as one in which the formal value of free speech dominates any consideration of substantive values or whether the commitment to diversity, which free speech facilitates, is itself a substantive value.
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From page 114... ...
First, there are laws aimed at preventing abuse and maltreatment, which make it illegal to distribute, purchase, or possess written materials, videos, and other items that depict child pornography. The argument is that such material is a stimulus to carrying out the acts depicted, and that it leads producers to abuse children in the course of its production.
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From page 115... ...
The Act triggered immediate challenges and was quickly reviewed by the Supreme Court (Reno v. American Civil Liberties Unions )
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From page 116... ...
The United States District Court for the Eastern District of Pennsylvania issued a preliminary injunction against COPA, holding that the law was likely to be found incompatible with the First Amendment for many of the same reasons that the CDA had been rejected.~4 Content providers would be inhibited, by fear of liability as well as by the costs associated with installing accesscontrol software, in what they produced, with the net effect of adults being less able to receive legal material that they might want. The District Court acknowledged that youth protection was a legitimate reason for restricting freedom of expression, but it argued not only that less restrictive means were available but that the prescribed accesscontrol systems would be of limited effectiveness anyway; they would not apply to foreign Web sites, noncommercial providers, or newsgroups.
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From page 117... ...
Such public institutions must use "technology protection measures" that prevent access to visual depictions that are obscene, "harmful to minors," or contain child pornography. CIPA further defines material that is "harmful to minors" as material that if "taken as a whole and with respect to minors, appeals to a prurient interest in nudity, sex, or excretion; depicts, describes or represents, in a patently offensive way with respect to what is suitable for minors, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals, and taken as a whole, lacks serious literary, artistic, political or scientific value to minors."~6 The American Civil Liberties Union and the American Library Association have announced their intention to challenge CIPA on First Amendment grounds.~7 Germany In 1997, a comprehensive Internet-specific law for the protection of minors was adopted in Germany that prohibits young people from receiving certain kinds of material.
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From page 118... ...
The German law allows for user-initiated controls when it is the user who initiates access to the inappropriate material. Material is allowed to be distributed this way only "if devices are supplied by the provider or others that allow the user to block these offers." This leaves to parents or guardians the decision of whether or not to use the blocking device.
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From page 119... ...
Given some of the practical difficulties in holding providers or recipients responsible for restricting access to potentially harmful content, a number of efforts have been made to hold intermediaries responsible. Because intermediaries are relatively few in number at least compared to the number of content providers or recipients and they generally have a local presence in order to do business, they are an attractive target for regulation.
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From page 120... ...
, and more recently, Congress granted limited immunity to access providers for violations of copyright law in the Digital Millennium Copyright Act.20 Host providers, however, are a different story. A host provider may be a portal or a proprietary service that gathers in one place a large amount of third-party content for user access.
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From page 121... ...
FREE SPEECH AND THE INTERNET 121 pean approaches to these issues, which are already difficult, as the discussion below demonstrates. 5.4.1 The United States Although the provisions of 47 USC 223 of the CDA, described earlier, quite clearly made providers liable if inappropriate material got into the hands of minors through the Internet, 47 USC 230 of the Act declared that third parties that is, intermediaries were not responsible for material they transmitted and were not liable for refusing to transmit material they viewed as "questionable." Congress's position was probably influenced to some degree by contradictory court decisions that had been handed down on the question of host-provider liability.22 However, the Act's language suggests that Congress was also guided by the belief that interactive computer services should be given strong protection because they "provide a forum for the real variety of political discussion, unique possibilities for cultural development, and a multitude of ways in which intellectual activity can develop." These services had already developed, helping the United States to establish its leadership in the networked world, and the Act's preamble stated that it is the "policy of the United States to keep the lively and competition-shaped open market that now exists for the Internet and other interactive computer services as free as possible from federal or state regulations." In the court tests thus far, 47 USC 230 has fared very well, with intermediaries held harmless from liability whether or not they have known what they were transmitting, known that it was illegal, or even if they paid the provider for it.23 The Supreme Court has not yet handed down any rulings on this section, but all indications are that the strong commitment to freedom of expression in the United States will continue to result in support for 47 USC 230.
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From page 122... ...
With these factors softening the impact of the liability provisions, there appears to be a broad consensus throughout Europe that the German law and the E-Commerce Directive of the EU Commission represent an appropriate middle path. In the view of most Europeans, these regulations balance the protection of minors with the right to freedom of expression and the economic interests of host providers.
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From page 123... ...
In fact, though the executive director was initially found guilty, the conviction was overturned in November 1999 precisely because the court recognized that he was neither responsible for sponsoring the newsgroups nor able to remove them from the network. 5.5 INTERNET CONTENT REGULATION AS A CHALLENGE TO GOVERNANCE The difficulties in regulating Internet content epitomize the challenges that global networks present for governance.
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From page 124... ...
In the context of this report see in particular Jack Goldsmith, 2000, "The Internet, Conflicts of Regulation, and International Harmonization," in Christoph Engel and Kenneth H Keller, eds., 2000, Governance of Global Networks in the Light of Differing Local Values, Nomos: Baden-Baden, 197-207.
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From page 125... ...
The United Nations' Human Rights Pact of the same yearn not only deals with human rights, but also bans war propaganda and "every encouragement of nationalistic, racial, or religious hatred [that] incites discrimination, animosity, or violence." In addition, there is a UN International Convention on the International Right of Correction from the year 195332 (although neither the Federal Republic nor the United States has adopted it)
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From page 126... ...
The European Committee on Crime Problems may consider an additional protocol relating to these offenses, but it faces opposition from a number of civil liberties organizations.34 The problem with harmonization is that if consensus requires drawing a too-small circle of cooperating nations, violators can find a regulatory haven fairly easily in a nation-state not party to the convention. There 33These acts include producing child pornography for the purpose of its distribution through a computer system; offering or making available child pornography through a computer system; distributing or transmitting child pornography through a computer system; procuring child pornography through a computer system for oneself or for another; and possessing child pornography in a computer system or on a computer-data storage medium.
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From page 127... ...
Consumer fraud, for example, does not change its legal character just because it is carried out with the aid of a Web page. Nevertheless, commercial law is a weak foundation for matters such as child pornography and politically tainted hate speech.
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From page 128... ...
If the labeling vocabulary does not include a category for "swastikas," a filter based on this approach cannot block content containing swastikas. At least one particular vocabulary of the Internet Content Rating Association allows labeling of sites that contain certain kinds of language, nudity or sexual content, violence, and information related to gambling, drugs, and alcohol.
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From page 130... ...
Moreover, filtering systems are usually designed with some particular point of view to take advantage of a market, pursue an ideological agenda, or avoid liability on the part of the software provider. This means that, at least until now, there has been little incentive for transparency in how the filters are created37 and little attempt to take opposing interests or values into account, as one might hope would be the case in a legislative approach to regulation.38 In that sense, filter systems can 36A fuller discussion of the advantages, disadvantages, and other realities of filters is contained in CSTB, National Research Council, Youth, Pornography, and the Internet: Can We Provide Sound Choices in a Safe Environment?
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From page 131... ...
However, it may be possible to develop a legal framework that would make codes enforceable, even if the host providers themselves determined the details of the code. A more serious criticism is the possible curtailment of free speech; the codes may deprive content providers who are sanctioned or excluded by a host provider of the due process they would have under a more formal legal structure.
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From page 132... ...
They can give industry limited antitrust or liability protection to encourage joint rulemaking and vigorous joint action. Or they can set up an authority to check on how well self-regulation is working (a role played by the U.S.
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