ITS 321: Legal and Ethical Issues in Information Technology

Lesson 4 - Freedom of Expression


Chapter 5 discusses concepts relating to freedom of expression and speech. Objectives important to this lesson:

  1. Basis for freedom of expression
  2. Laws about freedom of expression
  3. Relating freedom of expression to information technology

Chapter 5 of the third edition began with a discussion of sexting, which it defined as "sending sexual messages, nude or seminude photos, or sexually explicit videos over a cell phone". Presumably, the definition would apply if a cell phone was used to send the material, to receive it, or both. The fact that a cell phone is used is not really the issue. There are several issues:

  • the possession, transmission, or creation of material that is defined as child pornography
  • the violation of the privacy of individuals by posting their images without their consent
  • the display of sexually explicit material to individuals who are minors

So, the text asks us to consider whether there would be anything wrong if the situations it describes involved no children, and the adults involved had given consent. Would these be legal forms of expression? If so, why?

The First Amendment

As stated before, this text discusses issues mainly within the context of US laws. The first amendment to the constitution covers several points, among them the freedom of speech and freedom of the press. The text explains that "freedom of speech" means freedom of various forms of expression because court decisions have ruled that it does.

The text goes on to list some forms of speech that are not protected, according to the Supreme Court (page 197):

  • perjury
  • fraud
  • defamation
  • obscene speech
  • incitement of panic
  • incitement to crime
  • "fighting words"
  • sedition

The text continues with a discussion of the terms shown in bold face above.

Obscene Speech

The text makes reference to the US Supreme Court case Miller v. California, which produced a three part test to determine whether something is obscene. The text presents the test as three questions. It does not make this clear, but references to the case indicate that for material to be judged obscene, the answer to all three questions must be "yes". The article linked above lists the tests as three criteria, and they are worded a bit differently:

  • whether the average person, applying contemporary community standards (not national standards, as some prior tests required), would find that the work, taken as a whole, appeals to the prurient interest;
  • whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and
  • whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value

The test was meant to be an improvement over previous tests, but there is still room for interpretation. As the text points out, the average person is not defined, nor is the word "community". It would appear that there is still room for legal argument.


The text defines defamation as making "a statement of alleged fact that is false and that harms another person" (page 198). It further explains that oral defamation is called slander, and written defamation is called libel. (Oral means spoken. For those about to make a common mistake, verbal means "using words". Verbal and oral are not synonyms.) There are laws against defamation (both types) and they are a reason to avoid making statements that cannot be proven to be true.

The text returns to the subject of obscenity with a discussion of the Communications Decency Act, a part of the Telecommunications Act of 1996, which criminalized the transmission of indecent material over the Internet. An example given in the text was George Carlin's seven words you cannot say on television. The following year, the Supreme Court declared the law unconstitutional. (A quick web search for Carlin's list returned 157,000 hits.)

The text brings up the confusingly named law called the Child Online Protection Act of 1998. This is another law that was struck down by the Supreme Court because it would have intruded too much on freedoms listed in the first amendment. Possible mnemonic: COPPA is a law; the COPA is a nightclub (not a law).

Internet Filtering

It seems odd to see this as the next topic, but it fits under the concept of restraining free speech because a filter can be used to prevent people from accessing web sites based on content found in either the web pages themselves or in the Meta section of the web pages. Why is this acceptable? An employer may decide what kind of web sites to block from company computers, to avoid activities that would "waste time" or anger viewers. A parent may decide that some web sites are inappropriate for their own minor children. The people who run the Internet filter for the network of my primary employer, for example, prevent staff from going to pages that feature the word sports in their meta tags. Management's argument would be that sports pages are not necessarily offensive, but they are not related to employee productivity and may reduce it.

As the text explains, filtering can also block access based on URL or domain name, key words in a URL, or being listed in a vendor's list of inappropriate web sites. The text lists several vendors who sell this kind of service, mentions some filters available from organizations that identify hate and violence themed sites, and remarks that some ISPs offer filtering services as well.


The Children's Internet Protection Act (2000) is another law that means to protect children from obscenity, pornography, and harmful material. This law is in effect at this time (December, 2011). It requires libraries to use filtering software on computers used by minors, and also allows librarians to provide access without the filter to adults who request such access.  


Another right that the text discusses may not seem like a guaranteed right at all. If we have the freedom to express ourselves, do we have the right to do so anonymously? The text recalls the case of John Peter Zenger, who was tried for sedition in New York in 1735. The case established a precedent for a publisher to protect anonymous sources. It has further been argued that free expression without anonymity could lead to threats from those angered by the content of the speech, which could result in a violation of one's freedom to associate (page 206). More examples are given of people who wish to express their ideas or describe their situations without fearing reprisal from the authority, employer, or group they are writing about.

Countering the right to be anonymous, the text describes law suits brought by companies seeking to learn the identities of anonymous posters, commenters, and bloggers. The use of a John Doe lawsuit is discussed, in which the plaintiff is typically suing to learn the identity of someone, so that damages might be sought against them. The text discusses a case in which the Electronic Frontier Foundation argued that a four part test for validity should be applied to a subpoena asking for identity (page 208). It is unclear whether the court in question actually applied this test, making its use as a precedent doubtful.

Defamation and Hate Speech

The text discusses the fact that hate speech on the Internet is legal under US law if it does not include clear threats and intimidation against specific individuals. Other countries have stricter laws about such things, as discussed on page 209.

The chapter ends with more discussion about the use of corporate resources to blog unpopular material and to access pornography. The same arguments are made again, and conflicting points of view are described, but no best practices emerge from the discussion.