Place Regulations

on the Internet
Burning the Global Village
to Roast the Pig

John S. Gossett and Tami Sutcliffe                       

                                       University of North
Texas
http://www.informationart.org/symbolic.html
 “Any content-based regulation
of the Internet,
no matter how benign the purpose,
could burn the global
village to roast the pig.
The Internet is a far more
speech-enhancing medium than
print, the village green, or the mails ”
(opinion by Judge Stewart Dalzell, United States District Court for the Eastern District of Pennsylvania in ACLU v. Reno,

929 F. Supp. 824 (E.D.Pa. 1996).

What are time, place and manner regulations?
• content-neutral justifications for restricting free
speech in government-owned spaces

–subject to over-breadth challenges

–subject to"compatible use" tests:

•Is the activity suitable for the physical location?

•Will the tangible limits of a given space work efficiently with a

particular activity?

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 3

 What is Public Forum Doctrine?
• How time, place and manner regulations
have been historically applied to free
speech issues in government-owned spaces

–measurable physical characteristics (Davis v. Massachusetts, 167 U.S. 43).

– legal jurisdiction determined by physical location
–includes spatial tactics, spatial neutrality and spatial
tailoring (Zick, 2006)

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 4

Where are time, place and manner regulations
enforced?
Government-owned space includes three tiers:

• Non-public forums: heavily regulated, with states

exercising control. [prisons,

military bases, polling places, a school district's internal mail system, airport terminals]

• Limited public forums: Regulated based on the

nature of the physical property itself
[university meeting facilities, municipal theaters, school board meeting rooms.]

• Traditional public forums:

[publicly accessible locations such as streets, sidewalks, parks]

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 5

 When are place restrictions constitutionally
valid?
1. Serves an important governmental interest
2. Government interest is unrelated to the suppression of
a particular message
3. Narrowly tailored to serve the government's interest
4. Leaves open ample alternative means for
communicating this message

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 6

 So, what is the Internet?
• “An international network of interconnected
computers” (Reno v. ACLU, 521 U.S. 844 [1997])
• “A unique and wholly new medium of worldwide
human communication" (ibid)
• An international hardware network of
interconnected computers not limited to a single
physical or tangible entity

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 7

 FYI: TECHNICAL ISSUE:

How is the Web different from the Internet?

The Internet: The World Wide Web

nonspatial
international ever-shifting
hardware network navigational software
less directly related
interconnected to geographical location
Physically removing a networked computer from a library
olderisthan
building the of
a form Webplace restriction, as is filtering a list of
words from a library search engine

tied to physical place

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 8
 What type of public forum is the Internet?
• The physical location of any given Web
server on the Internet is usually irrelevant to
the messages being communicated.
• The data does not stay in one place, nor can
it be identified by either its source nor its
destination.
• “Immediate, anonymous, inexpensive and
seemingly borderless" (Franda, 2001).

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 9

MORE Reasons the Internet
is a problematic forum
• Jurisdiction online is currently based on the
physical place the server resides.
– Even if the content is illegal in some countries,
no laws can be enforced on the server itself.

•Internet Service Providers are not the equivalent of

publishers in the physical world.
–Publishers actually do know everything they
publish while ISPs cannot.
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 10
 Can place realistically be used
to regulate Internet expression?

• Since 2002, twenty five states have passed

or are considering passing Internet
censorship laws (ACLU 2006)
• But traditional vocabularies of physical
place fail to describe the Internet, so how
will these laws ever be viable?

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 11

 Can place realistically be used
to regulate Internet expression?

Obviously, governments and the private

sector must come to an agreement on
international legal standards for the free
flow of information and privacy (Weitzner,
2006.).

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 12

 Place restrictions applied to online communication

Restriction Type I: governmental agency limits the

way an individual may use the Internet in a public
setting.

Restriction Type II: public school limits the way a

student may use the Internet in a private setting.

Restriction Type III: governmental agency censors

the entire contents of an Internet-wide provider in a
public setting.

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 13

Examples of traditional place restrictions applied to online communication

Restriction Type I: governmental agency limiting

the way an individual may use the Internet in a
public setting.

EXAMPLE: The Children's Internet Protection Act (CIPA)

requires libraries and schools to install filters on their
Internet computers to retain federal funding. The filters
remove materials determined by the commercial vendors
who produce the filters. There is no organized oversight of
the filter content selection process.

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 14

Examples of traditional place restrictions applied to online communication

Restriction Type I: governmental agency limiting

the way an individual may use the Internet in a
public setting

--from IamBigBrothers web site:

"IamBigBrother Records everything secretly.
As with all of our monitoring software, IamBigBrother
runs in total secrecy, and is very hard to find.
IamBigBrother will not slow down your computer, or
do anything noticeable to the user.”

History of U.S. online speech regulation in libraries:

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 15
Examples of traditional place restrictions applied to online communication

Restriction Type II: public school limits the way a

student may use the Internet in a private setting.

EXAMPLE: Eighth-grade student Jessica Schoch was not

allowed to attend school or participate in extracurricular
activities after school officials discovered a MySpace.com
profile she created at home on her own time that parodied
a school administrator.

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 16

Examples of traditional place restrictions applied to online communication

Restriction Type II: public

school limits the way a student
may use the Internet in a
private setting.

Free speech issues related to students:

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 17

Examples of traditional place restrictions applied to online communication

Restriction Type III: governmental agency censors

the entire contents of an Internet-wide provider in a
public setting.

EXAMPLE:In July of 2006,

India's Department of Telecommunications instructed
Internet service providers to block access to the three
largest blogging domains including blogspot.com,
typepad.com, and geocities.com. and refused to provide
any explanations for the blockade.

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 18

Examples of traditional place restrictions applied to online communication

Restriction Type III: governmental agency censors the

entire contents of an Internet-wide provider in a
public setting.

•Google's capitulation to the Chinese govern

to ban certain kinds of online content.
• Department of Justice
subpoenas of search data from
Microsoft, Yahoo and Google.

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 19

 3 important debates:

Is human behavior really different online?

Can we define speech vs action?
Is there really a "pornography problem" online?

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 20

 Is human behavior really
different online?

NO YES
“Cyberspace is not much •International nature of the network
different than any other form and the anarchic/transient
of human communication and characteristics of law breaking
allow speed & anonymity
existing systems of law
•Internet tends to complement
should be able to deal with
rather than displace existing media
online conflicts fairly well.” (Robinson, 2003).
(Goldsmith, 1998).

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 21

 Speech or action?
• Online communication smudges some
divisions between speech and conduct
(sometimes considered "non-speech").
• Posting files, sending emails and
responding in online discussions are acts.
• Writing a blog and designing a web page
are perhaps more purely speech alone.
• When should these activities be censored?
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 22
 Is there really a
"pornography problem" online?
• Cyber-sex Scare of 1995.
– Time and Newsweek cover stories related to
Carnegie Mellon study on pornography use online

–Media-induced hysteria over online child

pornography was largely unfounded
–The incidence of pornographic imagery
appearing online probably reflects the incidence of
such materials appearing in society as a whole
(Hamilton, 1999).

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 23

 So what to do?
• Context of the message and not the
technological characteristics should be the
central criteria in deciding First
Amendment protection.
• The Internet is often described as a common
enterprise community so self regulation will
be most effective

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 24

 Cohen v California (1971)
• "Unwelcome views and ideas cannot be
totally banned from the public dialogue"
• Discussions of harm versus offensiveness
must always consider the chilling effect of
online censorship (403. U.S. 15).

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 25

 Guidelines
• Is the audience captive?
• Is the message likely to cause a breach of
the peace?

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 26

 Final Questions
• Can the state ever forbid the use of certain words,
even in "the public good"?
• While filtering may be encouraged in the privacy
of a home, should filtering without oversight be
enforced by law in public settings such as
libraries?

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 27

END NOTE:
Greetings from the world of
Radical Militant Librarians
FBI documents from
2003 reveal a series of e-
mails in which FBI
agents complain about
"radical, militant
librarians" interfering
with the use of secret
warrants authorized
under Section 215 of the
USA PATRIOT Act.
-- Electronic Privacy Information Center (EPIC) Freedom of Information Act (FOIA) request 2003

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 28

John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 29
“In recognition of the
efforts of librarians to help
raise awareness of the
overreaching aspects of
the USA PATRIOT Act,
the
American Library Association
Office for Intellectual
Freedom is offering
librarians an opportunity
to proudly proclaim their
"radical" and "militant"
support for intellectual
freedom, privacy, and civil
liberties.”
John S. Gossett & Tami Sutcliffe, University of North Texas ©2007 30