Free Speech Issues in Technology Part 3 Threats, Hate Speech, Violence in Video Games, & Defamation Spring 2015 The Miller test for obscenity uses a standard. A. Worldwide B. National C. Regional D. Community E. Individual Worldwide National Regional Community Individual Which of the following cases featured a law that was upheld as a constitutional regulation of speech? A. FCC v. Pacifica (Carlin) B. FCC v. Fox C. Reno v. ACLU D. A and B only E. A, B and C F. None of the above FCC v. Pacifica (Carlin) FCC v. Fox Reno v. ACLU A and B only A, B and C None of the above 1
Which of the following cases featured a law that was upheld as a constitutional regulation of speech? A. Ashcroft v. ACLU B. Ashcroft v. Free Speech Coalition C. US v. American Library Association D. A and B only E. A, B and C F. None of the above Ashcroft v. ACLU Ashcroft v. Free Speech Coalition US v. American Library Association A and B only A, B and C None of the above Foundations of Free Speech, pp. 244-9 John Stuart Mill s utilitarian arguments about limited government restrictions on free speech and other First Amendment issues. TWO IDEAS 1. Idea of a balancing of interests is very close to a weighing of pros and cons. Examples: Amish and schooling (Wisconsin v. Yoder, US S Ct 1972) Amish and orange triangle on buggy (Gingerich v. Kentucky, KY 2012) Foundations of Free Speech cont d SECOND IDEA: 2. Free exchange of ideas promotes truth seeking, suppression of ideas of the minority view reduces the perception of truth for all. Laws governing free speech in the US today are generally consistent with Mill s view. Pp. 245 7, lists of kinds of speech people desired to suppress 2
Unprotected speech No right to engage in these forms of speech: 1. Obscenity (Jan 27) Merely indecent speech may be allowable* (video lecture, Jan 29) 2. Speech that Incites (today) 3. Defamation (today) Speech that incites Incite: to encourage, bring about, to move to action Current test for speech that incites: imminent lawless action test from Brandenburg v. Ohio(1969) Intent, imminence, likelihood These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. Kinds of speech that incites 1. True threat 2. Fighting words Defined as words intentionally directed at a listener with malice to cause listener to immediately retaliate. Their utterance inflicts injury and an immediate breach of peace. (Chaplinsky v. NH, US S Ct 1942) F ace to face abusive language likely to provoke violence (Gooding v. Wilson, US S Ct 1972) Examine the actions or words to see if the imminent lawless action test is met. 3
must be delivered in a face to face conversation. A. True threats B. Fighting words C. Both of these D. None of these True threats Fighting words Both of these None of these Recent examples of threats Jeremiah Perez (Dec 2014 arrest) for YouTube comments http://www.usatoday.com/story/news/2014/12/23/man threatens copsyoutube colorado/20827997/ Pending US Supreme Court case Elonis v. US What is a threat and what is self expression? Is the standard an objective or subjective intent to threaten? http://www.oyez.org/cases/2010 2019/2014/2014_13_983 http://www.cnn.com/2014/12/01/politics/supreme court elonis vs u s freespeech/index.html Examples for you to look through: Fighting words case: Lady threatens cop http://www.firstamendmentcenter.org/her cop cussing ruled fighting words not free speech Compare: 1. Threatening presidential candidate Obama on yahoo message board: http://www.time.com/time/nation/article/0,8599,2084921,00.html 2. Jarvis Britton s F.E.A.R Twitter comments: http://www.huffingtonpost.com/2013/06/20/obama threat_n_3473452.html Tweets that threaten as free speech: 8,000 troublesome tweets at Alyce http://venturebeat.com/2011/12/16/tweets online stalking/ Jailed for sarcasm? http://www.huffingtonpost.com/2013/06/27/teenager justin carter facebook comment jail_n_3512025.html Jake Baker http://en.wikipedia.org/wiki/united_states_v._baker Planned Parenthood v. American Coalition of Life Activists (ACLA) Abortion providers website; were the strike through of names threats? 4
Hate Speech Hate Speech: speech that disparages a group based on a characteristic In the United States, hate speech may be protected under the First Amendment. Only hate speech that meets the imminent lawless action standard is unprotected speech (likely to incite immediate violence as fighting words or as threat) In France and Germany, hate speech is illegal. Note the use of US servers to bypass regulations. When is hate speech unprotected speech? A. Always B. If it constitutes a true threat C. If it constitutes fighting words D. Either B or C is correct Always If it constitutes a true threat If it constitutes fighting words Either B or C is correct Misc. Free Speech & Technology Issues: Video Games Does a state law that restricts the sale or rental of violent video games to minors comport with the First Amendment? 2001 7 th Circuit decision American Amusement Machine Assn v. Kendrick Indianapolis ordinance limited access to minors of games depicting violence by requiring owners of facilities w/ 5 or more game machines to have a separate area w/ parent or guardian accompaniment. Ordinance found to violate 1 st Amendment. Brown v. Entertainment Merchants US S Ct 2011 2005 California law, section I of the opinion Note how the language tracks the Miller test for obscenity. 5
Brown v. Entertainment Merchants US S Ct 2011 video games qualify for First Amendment protection. Why? Games communicate ideas & social messages using plot, characters, music Esthetic and moral judgments are for individuals not governments US v. Playboy Entertainment US S Ct 2000 And whatever the challenges of applying the Constitution to everadvancing technology, the basic principles of freedom of speech and the press, like the First Amendment s command, do not vary when a new and different medium for communication appears. Burstyn v. Wilson US S Ct 1952 Brown cont d The most basic of those principles is this: [A]s a general matter,... government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Ashcroft v. American Civil Liberties Union US S Ct 2002 Scalia lists the only acceptable areas for gov t to restrict content of speech: obscenity, incitement, & fighting words. Scalia says last term s holding in Stevens precludes adding other categories that legislatures deem to harmful. US v. Stevens: http://en.wikipedia.org/wiki/united_states_v._stevens No new categories by virtue of a simple balancing test Brown cont d CA law is trying to shoehorn in by looking like it s a permissible obscenity statute. Violence is not a part of the obscenity that the Constitution permits to be regulated. Obscenity is only concerned about depictions of sexual conduct. Distinguishing Ginsberg 6
A New Category for Governmental Regulation of Speech? No, there will be no new category of content based restrictions directed at children. Court notes that there has been no historic (successful) prohibition of violence in stories directed at children. Fairy tales, high school reading lists Comic books Interactive argument? Choose Your Own Adventure Judge Posner (all literature as interactive) Content Regulations holding Content regulations subjected to strict scrutiny Compelling gov t interest Narrowly tailored Ct says California does not meet its burden show direct causal link between violent games and harm to minors. Lasting measurable effects? no About the same as tv viewing of violence, other violence Do you agree with the Supreme Court in Brown? A. Yes, video games are speech and regulations prohibiting games should pass strict scrutiny. B. No, while video games may be speech, violent games need to be kept from children any way that it can be. C. I disagree with all the statements above. Yes, video games are speech an... No, while video games may be... I disagree with all the statemen.. 7
Violence in Video Games Recent Updates In February 2014, the House Ways and Means Committee began considering removing a tax credit. In the past, companies who make violent video games could be eligible for a tax credit related to research and development of technology to encourage businesses to operate in the US This could case a rise in video game prices http://www.gamespot.com/articles/violent game makers would be deniedtax credit under new reform blueprint/1100 6417989/ Defamation: no First Amendment right to defame Defamation required elements to prove: 1. False statement of fact about plaintiff by defendant 2. Publication communicated to a third party 3. Damages the reputation of the plaintiff Defamation forms Oral: slander Written: libel Negligence standard, Gertz (1974) Can you defame someone with a true, dark secret? A. Yes B. No Yes No 8
A defamatory tweet would be an example of A. Slander B. Libel Slander Libel Defamation per se: If it s defamation per se, proving harm to reputation is not required Per se categories: disease; criminal actions; misconduct related to profession or business; sexual misconduct. False statements involving these items are always actionable If you are bring a lawsuit claiming the statement was defamation per se, you will not have to prove A. That the statement was communicated to a third party B. That the statement was false C. That the statement harmed your reputation D. All of the above E. None of the above That the statement was co... That the statement was false That the statement harmed... All of the above None of the above 9
Defenses, Exceptions to Defamation Is it a statement of fact? Facts: capable of being objectively verified. Is it an opinion? Generally, opinions are protected speech. Stating false information opinion Other exceptions: merely offensive statements The Dumb Ass example in Vogel v. Felice if the meaning conveyed cannot by its nature be proved false Hyperbole Hustler v. Falwell Libel proof plaintiff Which of the following is NOT a per se category for defamation? A. Disease B. Hyperbole C. Criminal conduct D. Business misconduct E. Sexual misconduct Disease Hyperbole Criminal conduct Business misconduct Sexual misconduct Defamation and public figures Public figure: celebrity, politician, public official Examples: http://www.citmedialaw.org/legal guide/examples public and private figures In addition to the three requirements, public figure plaintiffs must prove that the defendant acted with actual malice (NY Times v. Sullivan) Knowing that it was false or with active disregard to statements truth. Regular defamation tests merely for negligence Reasonably prudent person, reasonable care Ex. David Beckham s $25 M suit against In Touch http://www.guardian.co.uk/football/2011/feb/15/david beckham magazinelibel judge 10
Public figures who sue for defamation have an additional element to prove about the statement. What is it? A. the statement was communicated to a third party B. the statement was false C. the statement was made with actual malice D. the statement harmed his/her reputation. E. the statement was made with negligence. the statement was communi... the statement was false the statement was made wit... the statement harmed his/h.. the statement was made wit... 11