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Constitution in Cyberspace: Cases and Materials The Constitution in Cyberspace Cases & Materials James Boyle Spring 2001 Constitution in Cyberspace Professor James Boyle Spring 2001 Table of Contents INTRODUCTION James Boyle, Net Total: Law Politics and Property in Cyberspace ............. 1 Nathan Newman, Net Loss: Government, Technology and the Political Economy of Community in the Age of the Internet ............................. 125 A Brief History of the Internet by Barry Leiner et al. ....................... 132 Cyberspace and the American Dream: A Magna Carta for the Knowledge Age by Esther Dyson, George Gilder, George Keyworth, and Alvin Toffler . 151 John Perry Barlow, A Cyberspace Compendium .......................... 165 Law And Borders--The Rise of Law in Cyberspace ........................ 176 David R. Johnson\*\ and David G. Post\**\ ........................... 176 Conceptual Background ............................................... 197 Lawrence Tribe, "The Constitution in Cyberspace: ................... 198 I The Public Private Distinction in Internet Governance i; Introduction to State Action ........................................... 213 Allen S. Hammond, Private Networks, Public Speech ................ 214 Marsh v. Alabama .............................................. 218 SHELLEY V. KRAEMER , 334 U.S. 1 (1948) 334 U.S. 1 ........... 220 FLAGG BROS., INC. v. BROOKS, 436 U.S. 149 (1978) 436 U.S. 149 . 231 Jackson v. Metropolitan Edison, Co. .............................. 249 America Online Inc. v.Cyber Promotions Inc.C.A. NO. 96-5213 ....... 254 I The Public Private Distinction in Internet Governance ii; Private non-delegation doctrine ........................................ 266 A. MICHAEL FROOMKIN,Wrong Turn in Cyberspace: Using Icann to Route Around the APA and the Constitution ....................................... 266 II Free Speech in Cyberspace ............................................ 297 II A. Communications Decency Act ..................................... 297 The CDA, 47 U.S.C.A. §§ 223, 230 ............................... 299 § 230. Protection for private blocking and screening of offensive material307 II B. 1 The First Amendment ........................................... 312 William Van Alstyne, A Graphic Review of the Free Speech Clause, ... 313 Frederick Schauer, The Second-best First Amendment, .............. 333 CHAPLINSKY ................................................ 342 AMERICAN MINI THEATRES, INC. .............................. 345 William M. BROADRICK et al., Appellants, v. State of OKLAHOMA et al. ii ....................................................... 351 II B. 2 The First Amendment. Pornography and Obscenity .................. 356 Marvin MILLER, Appellant,v. State of CALIFORNIA ................ 357 Ginsberg v. State of New York ................................... 366 AMERICAN BOOKSELLERS ASSOCIATION, INC.,v. William H. HUDNUT,386 III UNITED STATES of America, v. Robert Alan THOMAS (94-6648) and Carleen Thomas ................................................ 392 II B. 3 The First Amendment in Different Media .......................... 410 FCC v. Pacifica ................................................ 411 RED LION BROADCASTING CO ................................ 433 SABLE COMMUNICATIONS ................................... 437 TURNER BROADCASTING SYSTEM ............................ 445 Cass R. Sunstein, The First Amendment in Cyberspace, .............. 454 TALLEY V. CALIFORNIA ...................................... 506 MCINTYRE V. OHIO ........................................... 512 Joshua Quittner, “Requiem for a Go-Between,” ..................... 526 C. Case Study: The Communications Decency Act ........................ 528 ACLU V. RENO (3 JUDGE PANEL) .............................. 529 Statement by President Clinton in reaction to Court Decision ......... 619 RENO V. ACLU (questions presented) ............................ 620 Un-RENO v. ACLU ............................................ 621 Reno v. ACLU 117 S. Ct 2329 ................................... 655 C. 2) Case Study -- Child On-Line Protection Act ........................ 688 TITLE XIV--CHILD ONLINE PROTECTION ....................... 689 Reed, TRO Memorandum ....................................... 699 B. Privacy .......................................................... 706 Who Owns Personal Information? Anatomy of a Privacy Case ........ 707 Avrahami Motion .............................................. 709 Avrahami Letter to DMA ........................................ 713 Opt-In is Absolutely Unworkable ................................. 715 Anonymously Yours -- Part 1 .................................... 716 David Chaum, Achieving Electronic Privacy ........................ 720 A Cypherpunk´s Manifesto ...................................... 729 THE PRIVATE AND OPEN SOCIETY BY JOHN GILMORE ......... 731 C. Copyright and Civil Liberties ....................................... 735 Church in Cyberspace; Its Sacred Writ Is on the Net ................. 736 Scientology Reined In; Church May Have to Return Computer Files .... 745 RELIGIOUS TECHNOLOGY CENTER, Plaintiff, v. ARNALDO PAGLIARINA LERMA ................................................ 747 iii RELIGIOUS TECHNOLOGY CENTER, Plaintiff, v. ARNALDO PAGLIARINA LERMA, ............................................... 753 Scientology Battle ............................................. 757 NETCOM ON-LINE COMMUNICATION SERVICES, INC .......... 758 iv James Boyle, Net Total: Law Politics and Property in Cyberspace (unpublished draft 2000 – please do not quote or cite without permission) Net Total LAW, POLITICS AND PROPERTY IN CYBERSPACE James Boyle v Contents chapter 1 — Telephone Cults and Mail Murders ................ < The Telephone Test .......................................... < Internet Realism .............................................. < Shibboleth and Anathema in Net Policy ............................ chapter 2 — Libertarianism, Property and Harm ............... < Baseline Problems and Nonsense-on-Stilts ......................... < Positivism and the Civics Class ................................... < Making Rights Naturally ........................................ < Property as a Solving Idea chapter 3 — The Internet Trinity .................................. < “The Net Treats Censorship as a Malfunction...” .................... < “In Cyberspace , the First Amendment is a Local Ordinance..” ......... < “Information Wants to Be Free..” ................................ chapter 4 — Foucault in Cyberspace .............................. < Surveillance, Discipline and Architecture ........................... < Safe Harbours and Unintended Consequences ...................... chapter 5 — Privatised Panopticons and Digital Enclosures ... chapter 6 — State Action and Private Action ................. chapter 7 — Environmentalism for the Public Domain? ......... chapter 8— Antitrust and Microsoft: The Economics of Networks ............................................... chapter 9 — Conclusion .............................................. -i- Telephone Cults and Mail Murders chapter 1 here are many uninteresting things to say about cyberspace. The newspapers prove it every day. Here we have a set of Ttechnological, economic and cultural changes that occasionally merit even the burbling enthusiasm of the Internet’s devotees. Yet the newspaper coverage of the subject concentrates largely on things that have absolutely nothing to do with the Net itself. Some time ago, for my sins, I got into some journalists’ Rolodexes as a law professor who knew something about the Net. Now, whenever a web-designing cult commits collective suicide, a child is accosted by a pervert in a chat room, or a murderer persuades his victim to turn up by sending an e-mail message, I get a flood of calls looking for the “Internet angle.” The trouble is that there rarely is an Internet angle. The murderers, sexual predators and crackpot religions are largely independent of the communications technology they happened to use. One reporter was particularly persistent in trying to get me to cough up an appropriate sound-bite. Searching for an analogy, I asked her whether, if I called her up and asked her out on a blind date and murdered her, she would think it was a “telephone- related murder”? She rang off shortly thereafter, probably more convinced of my emotional instability than by my argument. But the 1 2 44 Net Total analogy is worth pursuing and it has something to teach the technophiles as well as the tabloids. In the early ‘90's — before “.com” could be found plastered all over the backs of buses — I went to a conference at Duke University devoted to explaining the technological wonders that lay in wait for us. At the culmination of the presentation one of the panelists said that, with access to better technology, we could actually have ordered a pizza on-line and had it delivered to us right in this classroom. There was a reverential pause at this piece of information, then a North Carolina voice spoke up hesitantly from the back of the room. “There’s a phone on the wall, you know.” Imagine a really revolutionary communications technology. Imagine a future in which we have a communications system with unprecedented market penetration, reaching more than 94% of the families in the United States, the majority of households in the developed world and a substantial chunk of the entire world’s population.1 Imagine that the system would allow real-time communication, point to point, with terminals everywhere; so that in many cases you could
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