Category Archives: First Amendment

Federal obscenity statutes held to be constitutional

Third Circuit reverses dismissal of indictment against website operator.

The recent Third Circuit decision in the case of U.S. v. Extreme Associates is important to the law of the Internet, because from it we learn that the federal statutes which prohibit the distribution of obscene material – over the Internet or otherwise – are not unconstitutional. At least not yet.

Defendant Extreme Associates, the operator of an adult website, was indicted for distributing obscene material in violation of certain federal obscenity statutes (18 U.S.C. 1461 and 1465). The District Court, concluding that the Supreme Court’s pro-privacy decision in Lawrence v. Texas, 539 U.S. 558 (2003) had seriously undermined the constitutionality of the statutes, dismissed the indictment.

On appeal, the Third Circuit concluded that the District Court overstepped its bounds by declaring the statutes unconstitutional, where the Supreme Court has not expressly declared the statutes unconstitutional. The Court reaffirmed this essential statement of the doctrine of stare decisis: “For district and appellate courts in our judicial system, [a Supreme Court decision] dictates the result in analogous cases unless and until the Supreme Court expressly overrules the substance of its decision.”

U.S. v. Extreme Associates, — F.3d —, 2005 WL 3312634 (3d Cir., December 8, 2005).

Detailed coverage of the constitutional issues in this article.

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Government funds used to stream video of legislative proceedings support taxpayer standing in Establishment Clause action

The U.S. District Court for the Southern District of Indiana handed down a controversial ruling on November 30, 2005, permanently enjoining the Indiana House of Representatives from beginning its meetings with any form of sectarian prayer. One of the issues in the case was whether the plaintiffs had standing to challenge the legislature’s practice.

As part of its analysis in finding in favor of the plaintiffs on the standing issue, the court observed that the House provided streaming video of each of its meetings over the Internet. This video included the invocation. There were a total of 53 opening prayers in the 2005 session, and each of these was “a few minutes in length.” The cost to stream the video over the Internet during the 2005 session was $1.88 per minute.

The court concluded that the taxpayers who had footed the bill for these costs were allowed to bring the action in federal court. The court stated:

In this case, each of the plaintiffs is an Indiana taxpayer. Indiana tax funds are spent on the House practice of prayer by [among other things] streaming video of the prayers over the Internet. Such expenditures are measurable disbursements of government funds, occasioned solely because of the prayer practice. These expenditures are sufficient to support standing for the plaintiff-taxpayers who object to the practice supported by the expenditures.

Hinrichs v. Bosma, — F.Supp.2d —-, 2005 WL 3263883 (S.D.Ind., November 30, 2005).

Delaware decision defines standards for protecting anonymous Internet speech

The recent case of Doe v. Cahill, coming to us from the Supreme Court of Delaware, illustrates a court’s willingness to ensure adequate safeguards to protect anonymous speech on the Internet.

In September of 2004, an anonymous visitor to a Smyrna, Delaware community weblog posted comments about city councilman Patrick Cahill, which Cahill believed to be damaging to his reputation. Cahill filed a defamation lawsuit. Because he did not know the identity of the anonymous commenter, he filed suit against “John Doe,” and began procedures under Delaware law to discover Doe’s true identity. Cahill learned that Doe used Comcast as an Internet service provider, and obtained a court order requiring Comcast to disclose Doe’s real name.

As required by the federal Cable Communications Policy Act of 1984, at 47 U.S.C. §551(c)(2), Comcast notified Doe of the request for information about his identity. [More on the Cable Communications Policy Act.] In response, Doe sought an emergency protective order to bar Comcast from turning over his information. The trial court denied Doe’s request for a protective order, and held that Cahill could obtain Doe’s identity from Comcast. Doe appealed directly to the Delaware Supreme Court. On appeal, the Court reversed the lower court’s decision.

The Supreme Court determined that the trial court had applied too low a standard in testing whether Comcast should be ordered to turn over Doe’s identity. The trial court had applied a “good faith” standard, namely, that disclosure was warranted because Cahill had established through his pleadings that he had a legitimate, good faith basis on which to bring the defamation claim.

The Supreme Court held that such a low standard was not sufficient to protect one’s right to speak anonymously. The lower, good faith standard might encourage meritless lawsuits brought merely to uncover the identities of anonymous critics. Accordingly, the Supreme Court adopted a standard “that appropriately balances one person’s right to speak anonymously against another person’s right to protect his reputation.”

The Court held that before a defamation plaintiff can obtain the identity of an anonymous defendant through the compulsory discovery process, he must come forth with facts sufficient to defeat a summary judgment motion. Said another way, before a Delaware court will order an anonymous speaker to be unmasked, the plaintiff has to present evidence creating a genuine issue of material fact for each element of the defamation claim.

Applying that standard to the present case, the court held that “no reasonable person could have interpreted [Doe's] statements to be anything other than opinion.” The court observed that its conclusion was supported by the “unreliable nature of assertions posted in chat rooms and on blogs.” The case was dismissed.

Doe v. Cahill, — A.2d —, 2005 WL 2455266 (Del., October 5, 2005).
[Full text of decision in PDF]

Spam filters and storage limits okay under First Amendment

Plaintiff de Mino, a part-time faculty member at the University of Houston Downtown, filed suit against the University, claiming that various restrictions placed on the use of school e-mail accounts violated the First Amendment right to free speech.

Specifically, de Mino complained of the University’s practice of shutting down e-mail accounts for adjunct professors during the summer, when they were not under contract to teach. He further complained of the inability to transmit e-mail after his account had reached its data storage limit. De Mino had other problems with the e-mail system when he failed to designate his personal e-mail address as legitimate, thus certain messages he had sent to other faculty had been caught in the system’s spam filter. De Mino contended that he was denied access when he tried to communicate with other faculty regarding University policies.

The court granted summary judgment in favor of the University, and dismissed the lawsuit. In deciding on de Mino’s First Amendment claim, the court looked primarily to two tests used to analyze such claims in the education context.

Under the Perry test (Perry Educ. Assn v. Perry Local Educators’ Assn., 460 U.S. 37 (1983)), educational authorities may reserve an internal mail system for its intended purposes, so long as there is no discrimination on the basis of viewpoint and the limitations imposed are reasonable in light of the purpose of the forum. Under the Tinker test, (Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1969)), teacher communications may be suppressed only when the expression or its method of exercise materially and substantially interferes with the activities or discipline of the school.

In this case, the court held that the restrictions on de Mino’s e-mail account satisfied these tests. The limited duration of adjunct accounts, as well as the spam filters and storage limits were not content- or viewpoint-based restrictions, and were reasonable in light of the need to preserve the integrity of the IT system. Doing away with such restrictions (and allowing open access to spam and unlimited data storage) would have been a substantial interference with the activities of the school.

Faculty Rights Coalition v. Shahrokhi, 2005 WL 1657116 (S.D.Tex., July 13, 2005).

Court rejects constitutional argument in Microsoft trade secret prosecution

New York federal court holds that Economic Espionage Act of 1996 not unconstitutionally overbroad or vague.

In February 2004, defendant Genovese posted a message on his website that the source code for Windows 2000 had been “jacked,” and offered to provide copies of it via FTP to anyone willing to pay a small fee. After Microsoft investigated Genovese’s claims and successfully obtained one of the “jacked” copies, it notified the FBI. Genovese was arrested and charged under the federal Economic Espionage Act of 1996, 18 U.S.C. §1832 et seq. (“EEA”).

Genovese moved to dismiss the indictment, arguing that the EEA was facially overbroad and unconstitutionally vague as applied to him. The court rejected his arguments, and denied the motion to dismiss the indictment.

In holding that the statute was not overbroad, the court determined that Genovese’s alleged conduct, namely, distributing the source code “with intent to convert a trade secret…to the economic benefit of anyone other than the owner thereof” was not protected speech under the First Amendment.

On the question of whether the statute was unconstitutionally vague, the court concluded that the term “trade secret” was defined with “sufficient definiteness” so that an ordinary person in Genovese’s position would understand that trafficking in the Windows source code was prohibited by law. Genovese’s own conduct demonstrated that he knew the source code derived value from not being generally known (namely, by referring to it as “jacked” and by charging a fee for access to it.) Furthermore, the court found that one could infer Genovese knew the code was proprietary and that protective measures taken by Microsoft had been circumvented. Thus, Genovese could “reasonably understand” that his conduct was proscribed by the Act.

U.S. v. Genovese, 2005 WL 1439860 (S.D.N.Y., June 21, 2005).

UPDATE: Genovese pleads guilty. [More here.]

Change in mail delivery policy moots prisoner’s First Amendment complaint

In the case of West v. Frank, decided on March 25, 2005 by the U.S. District Court for the Western District of Wisconsin, the court dismissed a prisoner’s complaint that a prison policy prohibiting mail delivery of information printed from the Internet was unconstitutional. The court held that the issue became moot after the policy was amended to allow delivery of such materials.

Plaintiff, an inmate in a Wisconsin prison, suffered from liver disease and desired information about the liver transplant process. After he was unable to acquire such information from the prison’s medical staff, plaintiff asked family members to send him information through the mail. On three occasions, family members printed out information from medical websites and sent them through the mail to the plaintiff. Prison officials did not deliver the materials to the plaintiff, however, citing the prison’s policy which prohibited inmates from receiving printed Internet materials.

Plaintiff brought a civil rights action against various prison officials alleging that the policy violated his First Amendment rights. At the summary judgment stage, the matter was dismissed. The court found that the prison’s change in policy to allow inmates to receive printed materials on the Internet made the First Amendment question moot. The parties to the action no longer had “an interest in the outcome that the law recognize[d] as actionable.” Further, it was “absolutely clear that the allegedly wrongful behavior [of the prison] could not reasonably be expected to recur.”

West v. Frank, 2005 WL 701703 (W.D. Wis., March 25, 2005).

Time Warner ordered to identify sender of offensive e-mail

In the case of Fitch v. Doe, the Supreme Court of Maine has held that while the Cable Communications Policy Act of 1984 generally prohibits a cable operator’s disclosure of subscriber information, an exception provided in the Act allows disclosure to nongovernmental entities pursuant to court order, so long as the subscriber has received notification thereof.

On Christmas Eve 2003, an anonymous person sent an email under Plaintiff Fitch’s name with a derogatory cartoon attached. Fitch filed suit in Maine state court against the unknown sender of the email (John or Jane Doe). Fitch then sought an order directing Time Warner (the ISP of the account from which the message was sent) to disclose Doe’s identity. Doe’s counsel objected to the disclosure, arguing that the disclosure was forbidden by the Cable Communications Policy Act of 1984, 47 U.S.C.A. § 551 (the “Act”), and that Doe did not consent to allow Time Warner to disclose his identity. The trial court ordered disclosure, finding that Doe’s agreement with Time Warner provided such consent.

Doe appealed to the Maine Supreme Court, but the lower court’s decision to order disclosure was affirmed. Although the court concluded that the lower court erred in determining Doe had consented to disclosure, such disclosure was authorized under an exception found in the Act.

The Act restricts cable providers from releasing information about their subscribers without the consent of the subscriber concerned. Section 551(c)(2)(B) of the Act authorizes disclosure of personally identifiable information if the disclosure is, “subject to subsection (h) of [Section 551], made pursuant to a court order authorizing such disclosure, if the subscriber is notified of such order by the person to whom the order is directed.”

Section 551(h) provides that when a governmental entity is seeking disclosure, it must show by clear and convincing evidence that criminal activity is reasonably suspected. Doe had argued that the reference to Section 551(h) served to “meld” the entire exception into one applicable only when the government seeks information about a subscriber. Because Fitch was not a governmental entity, Doe argued that the exception to the restriction of disclosure should not apply.

The court disagreed, and held that 511(h) served merely to impose a higher standard when the government seeks disclosure of information about a cable subscriber. Because Fitch was not a governmental entity, Time Warner was permitted to release the information in response to a valid court order, so long as it had given notice to Doe. The record established that Doe had received such notice, thus the Act did not bar Fitch’s access to the requested information.

Fitch v. Doe, — A.2d —-, 2005 WL 627569 (S.Ct. Me., March 18, 2005).