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Cyberspace Wins Free Speech Ruling
Prodigal yo-yo writes "Cyberspace Communications, Inc., and several other plaintiffs won a favorable ruling in the 6th Circuit Court of Appeals recently in the Cyberspace v. Engler lawsuit to overturn an unconstitutionally broad Internet censorship law. The 2 page ruling affirms an injunction against enforcement of the law while the case is tried." It is good to keep in mind that besides Federal censorship laws, many states have passed such laws as well.
Whatever degree of censorship is a bad thing, just because of the problem of throwing the baby out with the bathwater. Whether it's censoring web sites, or barring users os a service because the administration dislikes them. Such concepts are shocking and anything that can restrict freedom of speech should be considered extremely carefully
/. we don;t have that problem. The admin people are very firm believers in freedom of speech, and would never interfere with our right t express ourselves, even if its just to troll.
Fortunately on
Why such similar stategies aren't used to burn UCITA, I'll never know...
"Pinky, you've left the lens cap of your mind on again." - P&TB
"I can see my house from here!" - ST:
For more information and links see my anti-censorship site.
Danny.
I have written over 900 book reviews
One advantage our friends in the UK don't have, a Constitution. Of course, those in power here in the US have shown an alarming lack of respect for law lately, so we get the CDA, CDA II, COPA, DMCA, etc. They are going to keep throwing these things against the wall until one sticks.
Problem is a written constitution only works if the vast majority of people know what it actually says. Especially when combined with the quirk in the US system of passing legislation which assumes that any law is constitutional unless proved otherwise.
A knowlable population would mean that passing an unconstitutional law would be a waste of time since it would be impossible to find a cop who would arrest anyone for breaking it and impossible to find a judge who would hear the case.
The problem being, of course, is that the government of the US (and most everywhere else, too) is largely controlled by Corporate interests.
Actually there are two groups of people with major influence on the US government, one is corporate interests, the other is made up of political groups (including some who are very extreme and bigoted) who are willing to lobby politicans full time.
It's simply that their areas of lobbying differ...
I consider any "group" with a well-defined identity and sense of its own self-interest to be a corporate entity. This includes political parties, companies, industry groups, and any other special interest group... even the ones I may agree with. The problem is that they deal with issues in an "us vs. them" manner, using sterile rhetoric instead of actually communicating. Nobody speaks as an individual, only as their corporate role (ie: "spokesman", "lawyer") dictates.
I was trying to draw a distinction between those who lobby for the likes of DMCA, UCITA, etc. and those who lobby for "hate crime" laws, supercrimilization of drug usage, etc. Since we tend to hear far more about the former than the latter.
People that speak for a group are, in fact, acting in an anti-democratic fashion, since they are further reinforcing the corrupt philosophy that the voice of the citizen is inadequate to address the needs of the common good.
Also no citizen would be able to make themselves heard whilst such groups are around. For one thing they can't be lobbying politicans 24 hours a day.
The Commerce Clause does not prevent the states from making laws that affect interstate commerce. Rather, it authorizes the federal government to make laws regulating things that affect interstate commerce. It also forbids the states to unduly burden interstate commerce or to make laws that discriminate against commerce from outside the state. (This is the way courts currently read the Clause. Whether this reading is correct is a separate question.)
When someone browses a site, that person may be in any state, or even, as hard as that may be to believe, outside the United States. There's no practical way to tell what state that is. But a state law forbidding web sites to send certain material into that state would subject providers to penalties because of the browsers' hitting the sites. The only way to avoid those penalties would be to take the material down.
Of course, the only way a site operator could protect himself would be to take the material down altogether, even though it may be perfectly legal in the other 49 states. A single state's law would thus prevent commerce, even though the transaction lacked any connection to it. This is a substantial burden on interstate commerce, and I suppose the plaintiffs argued that it was an unconstitutional one.
In contrast, the states make contract law, even though those laws dramatically affect interstate commerce. The reason is that a contract is usually treated as subject to the law of a single state. The parties can usually even choose the state law to apply, so long as that state has some connection to the transaction. If that state makes a law that makes some kind of contract illegal, well, the state's residents can't make them, but the rest of us can do as we please.
The downside is that spammers have argued (successfully, IIRC) that state anti-spam laws also contravene the Commerce Clause. It's not a perfect world.
No, the solution would be no one regulating it. Censorship by gov't or by buisness is just as bad either way.
Which effectively means, the COPA-esque thing is currently on the books in Michigan, but there's an injuction against enforcing it until this suit comes to trial. The language of the injunction is pretty harsh, calling the law "unconstitutional," but that's not the final verdict! We have a while to wait before this is sorted out.
I'm afraid you misunderstood, the ruling affirmed the injunction against enforcing this law while it's validity is being challenged in court. You wrote as if you thought this was a bad thing?
I'm happy the injunction was upheld, I hope the law is overturned eventually. You are either a proponent of censorship, or simply misunderstood the article. After looking at your page, and applying Occams razor, I am guessing the latter.
If the former is true, I will be truly sad... an intelligent (and beautiful, not that that's pertinent, but it had to be said ;^) woman like yourself really should be on our side.
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Friends don't let friends enable ecmascript.
The reason the DMCA hasn't been struck down is twofold: Kaplan didn't really have the power to (although there were options he could take in that direction), and the MPAA and RIAA have just plain paid the right people too much money for it to die easily. From what I heard, it was passed by a near-unanimous vote in Congress, and signed by the president almost immediately.
-RickHunter
Well, IANAL, either, but what apparently happened is the Plaintiffs moved to Have enforcement of the law enjoined, temporarily, until the trial was concluded (where it could be lifted, if the defendants won, or made permanent if the plaintiffs did). The trial judge, reading the material provided by both sides, did not make a final decision, but concluded tha the plaintiffs had a definite high probability of winning the case (allowing, of course, a differnt result if the evidence developed during the trial overcame this preliminary action).
The defendants appealed this specific action, arguing that the law should only be enjoined only after a full trial. The Appeals court simply looked a the Judge's resoning for this preliminary injunction (which, after all, is a possibly proper action, not some out of the blue, arbitrary action of a crazy judge) and found, on its surface, that the judge properly granted the injunction on the preliminary facts at hand. The appeals court is noat making an immutable judgement on the merits of the case; they just send it back to the trial court for the full trial. They could easily remove the injunction on an appeal after the final judgedment of the trial court, ruling that the trial judge (if he finds for the plaintiffs) incorrectly applied the law to the facts developed at trial.
The bottom line is that nothing about this action by the appeals court has any bearing on what they might decide on any final appeal that might be lodged after the trial is over. - Whew
Yeah, but the Moderators are NOT, heh, heh, heh! Watch this reply going do-o-own-n-nnnnn-n...
This is an extremely significant thing. By hearing the case and making the same finding as the lower court, it sets the same precedent as if the 6th Circuit Court of Appeals were the first court to find for Cyberspace. The only reason it would be not significant is if the Court of Appeals had tacitly upheld the lower court decision by not hearing the case at all. The court did hear the case, and the ruling is very significant. It's not nationwide, but the different Circuit Courts tend to pay attention to one another, even though they're not as rigidly bound by precedent.
WARNING: there is a trojan on your
Is this an easy simple solution to minors on the NET or have I just been working to hard?
You've been working too hard. I've been living on my own/arranging for my own internet access since I was 16; I've had multiple dial-up accounts and once a cable account. Not once have I been asked for ID or been told I must be 18 to sign up. Only AOL has required me to have a CC (which I've had, at any rate; there are banks which issue them to minors, with parental permission) - most ISPs are more than happy to send you a bill and be mailed a check. Or given cold hard cash in their office, as the case may be.
Companies like AOL like to require that you give them a CC# and be billed no other way because it makes it more work for you to 1) see what they're billing you and 2) cancel the service when their Accounts phone line is only open between 1 and 3 AM Tuesdays. Everyone else takes cash and checks.
<SARCASM>Plus, you're obviously missing the point that we're trying to protect THE CHILDREN from the HORRIBLE PORN PUSHERS out there. THE PORN DEALER on your street corner is redirecting YOUR CHILD'S browser to goatse.cx without your precious little darling doing more than sitting in front of the computer.</SARCASM>
"We can't all, and some of us don't." -- Eeyore
"The ruling states that the Commerce Clause may also be grounds for the statute in question to be declared unConstitutional. Interstate commerce can only be the target of federal legislation as per the Constitution. If this is true, perhaps the Circuit Court is claiming that the Internet, as interstate "commerce", is entirely out of the juristdiction of states."
That is a VERY intriguing point. Of course, the Feds have used and abused the "commerce" clause to justify everything from seat belt laws to banning effective crypto. The 10th Amendment specifically FORBIDS the Feds from having any power not specifically granted them in the Constitution.
It might interest you to know that the Founders put the commerce clause in the Constitution so that States couldn't put tariffs on goods from other States (as happened under the Articles of Confederation).
Going after state internet censorship and mandatory censorware under the Commerce clause is probably the only way other than the 1st Amendment to fight it. Since the Internet is interstate and international, no State actually has ANY authority to regulate it at all.
And, the Feds are stopped Constitutionally by the 1st and 10th Amendments. They are stopped from implimenting something like the UK's RIP law (where you are required to hand over your crypto keys on request to "secret" police and forbidden to tell anyone, on threat of prison) by the 1st, 4th, 5th, 10th, and 14th Amendments.
One advantage our friends in the UK don't have, a Constitution. Of course, those in power here in the US have shown an alarming lack of respect for law lately, so we get the CDA, CDA II, COPA, DMCA, etc. They are going to keep throwing these things against the wall until one sticks.
=== The price of freedom is eternal vigilance
"And before you tell me that all we have to do is change the government through the available democratic mechanisms, I think you better give your head a shake. There is not two systems (public and private), there is one society dominated by the self-appointed elite. "
You are correct. So long as the US is a 2-party system, and the two partys don't differ more than 20% or so in their beliefs (if that much) things will always be so. I think one reason why things have gone downhill so rapidly in the 20th century (which we are still in, BTW) is because since the late 19th Century, the two party system has stabilized. In the early-mid 19th Century, it was commonplace for a major party to rise, fall, and be replaced by a new party.
Also, the one form of mass media of that time, the newspaper, was COMPLETELY unregulated by government, because the Constitution expressly forbid it.
I think the invention of rapid communication and new ELECTRONIC mass media have helped entrench the dominant parties.
ALL forms of electronic mass media (except so far, the Internet) are regulated by the government. There is no freedom of speech on TV or Radio, and never has been. It wasn't until the late 80's that the so-called "fairness doctrine" which prevented people from expressing opinion without giving "equal time" to any and all opposing views prevented almost any form of debate in media.
Is it any wonder that after 70 years of government restriction and regulation, that the mass media eventually all became like minded and pro-establishment?
The Internet is a threat to all that, because everyone can be a reporter. The ultimate target of the censors is not porn, it's not bomb plans, or DECSS, it's Matt Drudge and anyone else who in the future may use the Internet to do what he did.
=== The price of freedom is eternal vigilance
There is a great deal of irony in my being moderated down (read: censored) for having an unpopular opinion in an article about censorship.
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From each according to his ability, to each according to his needs.
Is it any wonder that after 70 years of government restriction and regulation, that the mass media eventually all became like minded and pro-establishment?
It is exactly the opposite! The reason radio and TV are like minded, etc, is because of the corporate ownership. Because of their profit obsessiveness, you see very little innovation unless it "shows a profit".
Why is it that PBS is so much better than regular television? It's because of the government involvement, so that producers only have to focus on quality rather than the "bottom line".
Quite frankly, we need to remove corporatism from the airwaves, and let the government publicly fund all programming. Only then is the corporate greed removed.
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From each according to his ability, to each according to his needs.
State internet regulations... Now that's funny.
Kinda like a cockroach telling a human that he or she isn't allowed to step on it...
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Feminism is the wild notion that women are human beings.
"It might interest you to know that the Founders put the commerce clause in the Constitution so that States couldn't put tariffs on goods from other States (as happened under the Articles of Confederation).
So then, does this mean that no state could (or should) be able to pass a law declaring a new internet commerce tax for online purchases?"
I think you are right. The Internet so far has been governed by the precedents set for mail-roder/catalog sales. States can pass sales taxes, because they are taxing INTRA-State commerce. However, mail order, internet, etc, commonly pass state lines.
Legally, it is the responsibility of the person buying the items to turn in the sales tax to their state on their return. State's don't like it this way because typically very few, if any, people actually do this, and there isnt' an easy way to enforce it.
And, I think it's unfair to put the burden on an Internet seller to have to comply with and collect taxes for 50 different states.
Preventing burdens like that is the purpose of the (much abused) commerce clause, and why it had a very noble purpose for being there. Interstate companies are supposed to be regulated by the Feds, not the States. State sales taxes, IMO, are the same as tariffs on interstate goods.
ANY government depends on having moral, honest people IN government to function lawfully and for the good of the people. Read the writings of the founders. It's the fundamental weakness of a Republic, is the dependancy on honesty.
=== The price of freedom is eternal vigilance
Note: "I am totally unfamiliar with this case save for a cursory read of the ruling", "IANAL but I am quite familiar with the Constutition", and other disclaimers may apply.
The ruling states that the Commerce Clause may also be grounds for the statute in question to be declared unConstitutional. Interstate commerce can only be the target of federal legislation as per the Constitution. If this is true, perhaps the Circuit Court is claiming that the Internet, as interstate "commerce", is entirely out of the juristdiction of states.
This would be quite interesting because it would allow orgs like the ACLU, EFF, etc. to fight all the Internet filter laws at once -- at the federal level. I, being a federalist, would rather empower localities, but if the Courts disagree, exercising the Commerce Clause could go a long way to keeping the Net uncensored.
Jennifer Granholm, Attorney General of Michigan, would have felt the need to bully all sites, everywhere, whether they have 'sexually explicit' material or not, because they do not verify your age.
I'm a Michiganian, and this wouldn't be the first time Ms. Granholm tried to assert Michigan law against people in different states or even different countries. She's a really rabid fuck-up. When Voteauction was still running, she attempted to get a injunction against them. Unfortunatly, Illinois got to them first and she didn't get to be on the 5 O'Clock news.. She's also tried to get legally operating online casinos, (denied) porn sites in other countries, (denied a half a dozen times) internet rebroadcast of Canadian television, (denied) MP3 sites in foreign countries (denied).
Basically she think she's gonna make a name for herself..
.sig: Now legally binding!
Copyright
Before computers, one could not easily copy books, records, etc. But you could acquire at some expence, a press, and do these things. So there was certian laws enacted to stop copyright, and the target of these was sizable operations.
You enter the tape age, where people can record cassettes and videos, and so we get this nonsence of `time shifts' and royalties on blank media.
In the computer age, we have e-books, and MP3's and Napster and so forth getting into trouble because there is no easy way to control copies.
Privacy
In the paper age, if you wanted to track me, you had to pay a spook to sit in a letter box or something. Have spooks cutting clippings out of papers, and photographing me. Big money. Pick carefully.
With computers, you can run and store massive archives assembled with grep. If you play your cards right, you do not have to even pay for the processing or storage of your snooping.
Junk Mail
In the days of paper, you had to pay a printer to print your flyer, and pay some likely lasses to put the flyer in everyone's letterboxes. Costs money. Pick the target carefully.
In the computer age, you can send out bulk e-mails, or generalised mail, based on individual profiles. Annie likes Apple, send her adds for apple applications. Sally likes servers, send her out server software samplers. You get the idea. Also, you do not pay for the duplication and sending of this.
Spam is not liked because it clogs up the system, and it is paid for by those who do not benefit from it.
Anomynous Posting
If I stick a sign up that said, 'Windows sucks', then MS are going to have a devel of a time working out it was me.
If I post a message that says `Windows sucks', then MS could use some spooky program that says it came from this box, etc etc.
Covering the tracks
A privacy issue allows a person to cover ones tracks, by destroying that part of the past. There are people who seek uncover this past and use it against us. But the difficulty of deletion of data has strongly taken away from us our rights of a fair forgiveness of forgotten things. In the electronic age, we can scrape through a computer for scrap of files deleted, and tie it more clearly to a person, then if the same data had been recovered from the council tip.
Issues for a digital age
Do you see a pattern? Under the digital age, there are three natural justices that have changed, for which there is need for a new laws to protect our rights
We need to address these natural justices as a totality, rather than looking at the effected issues (changes in copyright, privacy, freedom of speech, ....)
OS/2 - because choice is a terrible thing to waste.
Passing any kind of restriction on speech is a slippery slope that we don't want to go down...
Let's face it, guys and gals, the Internet as it is today (cheap, international, instantaneous) is threatening to ALL establishment powers. Finally, access to almost infinate information is there for the taking for anyone with a cheap PC and a modem.
All you have to do is look at the election coverage to know what is at stake here... There is a lot that went on in the Algore recount-until-I-win fury that the FCC licenced and regulated dominant media didn't report. The Internet allows anyone with information to distribute it worldwide. The Internet enabled people like Matt Drudge to tell the world about Monica and the presidentially semen stained blue dress when the dominant media had been sitting on the story for weeks. No longer do all the like-thinking editors in the press decide what is and isn't distributed to the people. You or I can tell the WORLD anything, and there's not a thing any politico can do to stop it.
THAT is power. And it scares politicos. This power has NEVER in history belonged to so many! So they are going after the `net, hot and heavy. They are trying desperately to get SOME kind of regulation of the Internet that will stick, so that it can be extended.
EVERYTHING the government touches eventually ends up under it's domination. Jefferson wrote that the "natural way of things is for government to get more powerful" (paraphrase).
So, they go after regulating prOn (for the children, of course), then they go after those posting bomb plans, etc. Censors always start censoring those that most ordinary people find offensive. But it never ENDS there. The personal freedom-control Nazis always want more and more.
ANY kind of Internet censorship at all is just the thin edge of a wedge.
What I find pitiful is that so far, the only legal Internet censorship that hasn't been struck down by a court is that resulting from the DMCA... Thaks to Judge Kaplan and his MPAA financed retirement fund.
=== The price of freedom is eternal vigilance