This Regards us Talking shit on your situation.

Freedom of Speech is a bitch.

Thank your founding fathers…

Legal or moral recognition of choices or interests to which particular weight is attached. Assertions that X has a legal right to Y are tested by whether the law does in fact recognize X’s right to Y; assertions of a right in the absence of that legal recognition may be demands that the law be changed to accommodate the asserted right, or be a way of stating the perceived demands of morality. There are two principal theories seeking to explain what it is to have rights and the purpose of ascribing them to individuals. On the first view, a person who possesses a right has a privileged choice: it is recognized, if a legal right, because the law will ensure that it has effect, while if a moral right it identifies a person whose choice should have effect. To the extent that other persons have duties or liabilities as a consequence of the right, it is the right-holder who may choose to release them from those duties or choose not to trigger their liabilities. The point of rights, then, is to make available these sorts of choices, and a system of rights involves some sort of distribution of freedom. On the alternative view, rights give expression to important interests, and it is the purpose of rights to protect a person’s significant interests by imposing duties on others. (Whether only persons are capable of having rights is a debated issue, but one affected by whether the capacity for choice or the possession of interests is thought fundamental.) Which choices or interests have the relevant importance or significance still needs to be specified, of course: for some writers the interests are those which would be threatened by utilitarian calculations. One recurrent controversy about rights is just how weighty they should be. Are rights ways of establishing important claims, but claims which are defeasible or alienable? Or are rights vetoes (‘trumps’, according to Dworkin) which cannot be put into a balance? (See also side-constraint.) On the one hand, to respect a property right when the lives of thousands could be saved by overriding it looks fetishistic; on the other, to allow rights to be overruled by considerations of general utility is alleged to neglect the integrity and separateness of persons. In any case, if and when rights conflict we shall have to decide which to uphold, possibly on utilitarian grounds.

Two problems about freedom have parallels in the discussion of rights. The first concerns the distinction between a formal right to X and the substantive capacity to X. For example, A has a legal right to X, in a case where that means ‘A is not to be forbidden to do X’, does not guarantee that the action X is available to A, since its performance may require resources which A lacks. Similarly, with respect to equality, Marx criticized the rights held dear by the bourgeois revolutions of the eighteenth century: to guarantee to all a right of private property (for example) does not by itself give everyone equal amounts of property, or, indeed, any property at all. An equality of rights, in short, is compatible with great inequality in actual conditions. The second parallel with debates about freedom arises from the alleged differences between rights the primary purpose of which is to protect the individual from outside interference, and rights attributed to the individual which impose duties on others to provide the individual with resources. It is suggested that the latter (welfare rights) are unwarranted extensions of the former (claim rights) because of the different sort of duty they require. The alleged differences depend in part on whether we focus on choice/freedom or interests as explanations for the ascription of rights.

The relationships between rights and duties within systems of positive law cannot be assimilated to one model. Wesley Newcomb Hohfeld demonstrated over seventy years ago that ‘rights’ embrace four types of legal relation, and his analysis can also be applied to non-legal usage. Very often, statements about rights draw on more than one of the four relations identified. (1) A right is a liberty: a person has a liberty to X means that he has no obligation not to X. (2) A right is a right ‘strictly speaking’ or a claim right: a person has a right to X means others have a duty to him in respect of X. (3) A right is a power, that is, the capacity to change legal relations (and others are liable to have their position altered). (4) A right is an immunity, that is the absence of the liability to have the legal position altered. The relation between the right-holder and other persons differs in the four cases. The importance of Hohfeld’s analysis is not merely that it clarifies rights talk. Understanding how rights operate, characterizing them accurately, is a necessary precondition to decisions about their value. Sceptics have been critical of the importance rights seem to attach to the individual, particularly the acquisitive or egoistic individual: they see rights as the expression of the distance between a person and the community. Supporters have argued that rights are of crucial value in balancing the claims of persons, and that they have a potential to integrate society by providing a framework for action.

— Andrew Reeve

  

30 A.L.R.6th 299

30 A.L.R.6th 299 (Originally published in 2008)

                            American Law Reports ALR6th

 The ALR databases are made current by the weekly addition of relevant new cases.

First Amendment Protection Afforded to Web Site Operators

Marjorie A. Shields, J.D.

  Courts have considered the First Amendment, U.S. Const. Amend. I, protection
afforded to Web site operators. The court of appeals, in Peterson v. National
Telecommunications and Information Admin., 478 F.3d 626, 30 A.L.R.6th 671 (4th
Cir. 2007), held that the National Telecommunications and Information
Administration (NTIA) rule, which required disclosure of certain personal
information of any individual who registered an Internet domain on the.us
top-level domain, did not threaten a Web site operator’s ability to protect
anonymity in his online speech activities within a Point-Counter-Point City Web
site utilizing the.us top-level domain, and thus did not cause injury in fact to
the operator for purposes of standing on his First Amendment, U.S. Const. Amend.
I, claim despite the operator’s contention that he possessed a right to partial
anonymity. This annotation collects and summarizes those cases in which courts
have considered the First Amendment protection afforded to Web site operators.

TABLE OF CONTENTS

Article Outline

Index

Table of Cases, Laws, and Rules

Research References

ARTICLE OUTLINE

     I Preliminary matters

        s  1 Scope

        s  2 Background and summary

        s  3 Practice pointers

     II First Amendment Protection Afforded Web Site Operator

        A Justiciability of Claim

           s  4 In general

           s  5 Mootness

           s  6 Standing

        B First Amendment Protection Under Particular Circumstances

           s  7 Regulation of Internet adoption service

           s  8 Political speech

           s  9 Hostile, disparaging, or offensive speech

           s  10 Advocacy of criminal activity/threat of force

           s  11 Illegal tax scheme

           s  12 Web site news reporting

           s  13 Posting of legal documents, commentary, and
        information-Civil litigation

           s  14 Posting of legal documents, commentary, and
        information-Criminal prosecution

           s  14.5 Posting of financial documents

           s  15 Court-ordered posting of criminal conviction

           s  16 Webcam film of incarcerated inmates

           s  17 Live web broadcast of execution

           s  18 Promotional or publicity materials

           s  19 Identity of Internet subscribers/chat room
        users/message board users-Protected

           s  20 Identity of Internet subscribers/chat room
        users/message board users-Not protected

           s  21 Web site domain name registration requirement

           s  22 Denial of use of particular Web site domain name

           s  23 Identity of Web site domain name registrant

           s  24 Internet search engine Web site rankings

           s  25 Use of copyrighted material

           s  26 Use of material in violation of licensing agreement

           s  27 Union affairs or other employee activities

           s  28 Sexually explicit Web site

           s  29 General financial advice

           s  30 Health Information-Diet and nutrition information

           s  31 Health Information-Reproductive health; abortion

           s  32 Attorney misrepresentations

Research References

INDEX

Abortion, health information regarding s 31

Abortion providers, names and addresses of s 10

Abusive tax shelters s 11

Access to sources of information for news reporting s 12

Adoption service, regulation of s 7

Advocacy of criminal activity s 10

Animals, use of in research s 10

Anonymity s19,20,23

Antiterrorism and Effective Death Penalty Act s 10

Attorney, misrepresentations as to qualifications s 32

Audio files, digital, transmission and retention of s 25

Background and summary s 2

Baseball players, retired, use of names, voices, signatures, photographs, and
likeness of s 18

Biopharmaceutical company’s employees, names and addresses of s 10

Biopharmaceutical corporation, disclosure of identity of unidentified user of
message board to s 20

Broadcast of execution s 17

Chat room users, Internet subscribers, or message board users, protection of
identity of s19,20

Civil litigation, posting of legal documents, commentary, and information s 13

Clothing designs, copyright infringement s 25

Commodity trading advisor registration requirement s 29

Confidentiality agreement, breach of s 20

Copyrighted material, use of s 25

Court-ordered posting of criminal conviction s 15

Criminal activity, advocacy of s 10

Criminal conviction, court-ordered posting of s 15

Criminal prosecution, posting of legal documents, commentary, and information s 14

Decryption code, posting of s 25

Diet and nutrition information s 30

Digital audio files, transmission and retention of s 25

Discovery requests seeking to identify anonymous Internet users s 19

Disparaging, hostile, or offensive speech s 9

Domain name, denial of use of s 22

Domain name registrant, identity of s 23

Domain name registration requirement s 21

E-mails, harassing, disclosure of identities of anonymous subscribers s 20

Employee activities s 27

Exclusive licensing agreement, use of material in violation of s 26

Execution, live web broadcast of s 17

Fair use s 25

Financial advice, general s 29

First Amendment protection under particular circumstances s7to32

Football game, use of material in violation of exclusive licensing agreement s 26

Foreign Terrorist Organization s 10

Freedom of Access to Clinic Entrances Act s 10

General financial advice s 29

Harassing electronic communications, disclosure of identities of anonymous
subscribers s 20

Health information s30,31

Hostile, disparaging, or offensive speech s 9

Identity of Internet subscribers, chat room users, or message board users s19,20

Identity of website domain name registrant s 23

Illegal tax scheme s 11

Incarcerated inmates, live web broadcast of execution s 17

Incarcerated inmates, webcam film of s 16

Internet search engine website rankings s 24

Internet subscribers, chat room users, or message board users, protection of
identity of s19,20

Jury pool, tainting of s 14

Justiciability of claim s4to6

Legal documents, commentary, and information, posting of s13,14

Licensing agreement, use of material in violation of s 26

Live images of pretrial detainees s 16

Live web broadcast of execution s 17

Message board users, chat room users, or Internet subscribers, protection of
identity of s19,20

Misrepresentations, attorney s 32

Mootness s 5

News articles, unauthorized copying and posting of s 25

News reporting s 12

Nutrition and diet information s 30

Obituaries, mock s 9

Offensive, hostile, or disparaging speech s 9

Particular circumstances, First Amendment protection under s7to32

Particular website domain name, denial of use of s 22

Police and police department s27,28

Political speech s 8

Posting of criminal conviction, court-ordered s 15

Posting of legal documents, commentary, and information s13,14

Practice pointers s 3

Preliminary matters s1to3

Prisoners, live web broadcast of execution s 17

Prisoners, webcam film of s 16

Promotional or publicity materials s 18

Registrant of website domain name, identity of s 23

Registration requirement, commodity trading advisor s 29

Registration requirement, website domain name s 21

Reporting of news s 12

Reproductive health information s 31

Same sex couples, posting of profiles on adoption website s 7

School, disciplining of students s 9

Scope of annotation s 1

Search engine website rankings s 24

Sexually explicit website s 28

Standing s 6

Students, suspension of s 9

Subscribers, chat room users, or message board users, protection of identity of
s19,20

Summary and background s 2

Suspension of students s 9

Tax scheme, illegal s 11

Television news anchor, use of image of s 18

Threats s10,14,22

Union affairs or other employee activities s 27

University athletic teams, website news reporting s 12

Vote swapping website s 8

Webcam, live images of pretrail detainees s 16

Webcam, live web broadcast of execution s 17

Website domain name, denial of use of s 22

Website domain name registrant, identity of s 23

Website domain name registration requirement s 21

Website news reporting s 12

Table of Cases, Laws, and Rules

United States

     U.S. Const. Amend. I. See 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 14.5,
     15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32

     U.S. Const. Amend. XI. See 5

     U.S. Const. Amend. XIV. See 2

     8 U.S.C.A. s 1189(c). See 10

     17 U.S.C.A. ss 1201 et seq.. See 25

     18 U.S.C.A. s 875(c). See 10

     26 U.S.C.A. ss 6700, 6701. See 11

     26 U.S.C.A. s 6700. See 11

     26 U.S.C.A. s 7408. See 11

     29 U.S.C.A. s 216(b). See 13

     42 U.S.C.A. s 1983. See 6, 8, 12

First Circuit

     National A-1 Advertising, Inc. v. Network Solutions, Inc., 121 F. Supp. 2d
     156, 2000 DNH 204 (D.N.H. 2000) – 4

Second Circuit

     Brown v. Damiani, 154 F. Supp. 2d 317 (D. Conn. 2001) – 6

     Gorran v. Atkins Nutritionals, Inc., 464 F. Supp. 2d 315 (S.D. N.Y.
     2006) – 30

     Hammer v. Amazon.com, 392 F. Supp. 2d 423 (E.D. N.Y. 2005) – 3

     Murawski v. Pataki, 514 F. Supp. 2d 577 (S.D. N.Y. 2007) – 3

     Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d 573 (2d Cir.
     2000) – 21

     Sarl Louis Feraud Intern. v. Viewfinder, Inc., 489 F.3d 474 (2d Cir.
     2007) – 25

     Shelton Police Union, Inc. v. Voccola, 125 F. Supp. 2d 604 (D. Conn.
     2001) – 27

     Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001) – 25

     U.S. v. Schulz, 529 F. Supp. 2d 341 (N.D. N.Y. 2007) – 11

     Zieper v. Metzinger, 474 F.3d 60 (2d Cir. 2007) – 8

Third Circuit

     Layshock v. Hermitage School Dist., 496 F. Supp. 2d 587, 223 Ed. Law Rep.
     218 (W.D. Pa. 2007) – 9

     Pilchesky v. Miller, 2006 WL 2884445 (M.D. Pa. 2006) – 8

     U.S. v. Bell, 414 F.3d 474 (3d Cir. 2005) – 11

Fourth Circuit

     Myers v. Loudoun County School Bd., 500 F. Supp. 2d 539, 223 Ed. Law Rep.
     786 (E.D. Va. 2007) – 9

     Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532 (E.D. Va. 2003) – 4

     Peterson v. National Telecommunications and Information Admin., 478 F.3d
     626, 30 A.L.R.6th 671 (4th Cir. 2007) – 23

Sixth Circuit

     Bosley v. Wildwett.com., 2004 WL 2169179 (6th Cir. 2004) – 18

     Mahaffey ex rel. Mahaffey v. Aldrich, 236 F. Supp. 2d 779 (E.D. Mich.
     2002) – 9

     Putnam Pit, Inc. v. City of Cookeville, 76 Fed. Appx. 607 (6th Cir.
     2003) – 12

     U.S. v. Gleason, 92 A.F.T.R.2d 2003-5232, 2003 WL 21770815 (M.D. Tenn.
     2003) – 11

     U.S. v. Standring, 97 A.F.T.R.2d 2006-1895, 2006 WL 689116 (S.D. Ohio
      – 11

Seventh Circuit

     Entertainment Network, Inc. v. Lappin, 134 F. Supp. 2d 1002 (S.D. Ind.
     2001) – 17

Ninth Circuit

     A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 (9th Cir. 2001) – 25

     Bank Julius Baer & Co. Ltd v. Wikileaks, 535 F. Supp. 2d 980 (N.D. Cal.
     2008) – 14.5

     Butler v. Adoption Media, LLC, 486 F. Supp. 2d 1022 (N.D. Cal. 2007) – 7

     Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443, 69 Fed. R. Serv. 3d 173
     (C.D. Cal. 2007) – 25

     Demery v. Arpaio, 378 F.3d 1020 (9th Cir. 2004) – 16

     Dible v. City of Chandler, 502 F.3d 1040 (9th Cir. 2007) – 28

     Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088, 49 Fed. R. Serv. 3d 404, 120
     A.L.R.5th 725 (W.D. Wash. 2001) – 19

     Emmett v. Kent School Dist. No. 415, 92 F. Supp. 2d 1088, 143 Ed. Law Rep.
     828 (W.D. Wash. 2000) – 9

     LOS ANGELES TIME, and The Washington Post Company and its wholly owned
     subsidiary, Washingtonpost, Newsweek Interactive Company, Plaintiffs, v.
     FREE REPUBLIC, Electronic Orchard, Jim Robinson, and Does I Through 10,
     inclusive, Defendants., 1999 WL 33644483 (C.D. Cal. 1999) – 25

     Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of
     Life Activists, 290 F.3d 1058 (9th Cir. 2002) – 10

     Porter v. Bowen, 496 F.3d 1009 (9th Cir. 2007) – 8

     Porter v. Jones, 319 F.3d 483 (9th Cir. 2003) – 5

     U.S. v. Hargis, 94 A.F.T.R.2d 2004-7257, 2004 WL 2830717 (C.D. Cal.
     2004) – 11

     U.S. v. Rivera, 92 A.F.T.R.2d 2003-6844, 2003 WL 22429482 (C.D. Cal.
     2003) – 11

     U.S. v. Stoll, 2005-2 U.S. Tax Cas. (CCH) P 50459, 96 A.F.T.R.2d 2005-5044,
     2005 WL 1763612 (W.D. Wash. 2005) – 11

     U.S. v. Sutcliffe, 505 F.3d 944 (9th Cir. 2007) – 10

     Valeo Intellectual Property, Inc. v. Data Depth Corp., 368 F. Supp. 2d 1121
     (W.D. Wash. 2005) – 13

Tenth Circuit

     Search King Inc. v. Google Technology, Inc., 2003 WL 21464568 (W.D. Okla.
     2003) – 24

     Smith v. Plati, 258 F.3d 1167, 155 Ed. Law Rep. 1090 (10th Cir. 2001) – 12

     U.S. v. Cooper, 2004-1 U.S. Tax Cas. (CCH) P 50107, 92 A.F.T.R.2d 2003-7441,
     2003 WL 23138760 (D. Colo. 2003) – 11

Eleventh Circuit

     Crown Pontiac, Inc. v. Ballock, 287 F. Supp. 2d 1256 (N.D. Ala. 2003) – 22

     Gridiron.com, Inc. v. National Football League Player’s Ass’n, Inc., 106 F.
     Supp. 2d 1309 (S.D. Fla. 2000) – 26

     Maddox v. Knowledge Learning Corp., 499 F. Supp. 2d 1338 (N.D. Ga.
     2007) – 13

     U.S. v. Carmichael, 326 F. Supp. 2d 1267 (M.D. Ala. 2004) – 14

     U.S. v. Luman, 95 A.F.T.R.2d 2005-2414, 2005 WL 1027075 (N.D. Ga. 2005) – 11

District of Columbia Circuit

     Chai v. Department of State, 466 F.3d 125 (D.C. Cir. 2006) – 10

     Taucher v. Born, 53 F. Supp. 2d 464 (D.D.C. 1999) – 29

California

     Cal. Civ. Code ss 51 and 51.5. See 7

     Cal. Civ. Code s 3344(a) and (d). See 18

     Bernardo v. Planned Parenthood Federation of America, 115 Cal. App. 4th 322,
     9 Cal. Rptr. 3d 197 (4th Dist. 2004) – 31

     Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 114 Cal. Rptr. 2d
     307 (1st Dist. 2001) – 18

     Novartis Vaccines and Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty
     USA, Inc., 143 Cal. App. 4th 1284, 50 Cal. Rptr. 3d 27 (1st Dist. 2006) – 10

     People v. Neuman, 2002 WL 800516 (Cal. App. 2d Dist. 2002) – 10

New Jersey

     Immunomedics, Inc. v. Doe, 342 N.J. Super. 160, 775 A.2d 773 (App. Div.
     2001) – 20

North Carolina

     North Carolina State Bar v. Culbertson, 177 N.C. App. 89, 627 S.E.2d 644
     (2006) – 32

Pennsylvania

     Polito v. AOL Time Warner, Inc., 78 Pa. D. & C.4th 328, 2004 WL 3768897
     (C.P. 2004) – 20

Texas

     Tex. Const. Art. I, s 8. See 15

     Cuellar v. State, 985 S.W.2d 656 (Tex. App. Houston 1st Dist. 1999) – 15

                              I. Preliminary matters

s  1. Scope

  This annotation collects and summarizes those cases in which courts have
considered the First Amendment U.S. Const. Amend. I, protection afforded to Web
site operators.[1]

  Some opinions discussed in this annotation may be restricted by court rule as
to publication and citation in briefs; readers are cautioned to check each case
for restrictions. A number of jurisdictions may have rules, regulations,
constitutional provisions, or legislative enactments directly bearing upon this
subject. These provisions are discussed herein only to the extent and in the form
that they are reflected in the court opinions that fall within the scope of this
annotation. The reader is consequently advised to consult the appropriate
statutory or regulatory compilations to ascertain the current status of all
statutes discussed herein.

s  2. Background and summary

  The First Amendment to the Constitution of the United States, U.S. Const.
Amend. I, and the bills of rights of most of the states, contain express
prohibitions against the enactment of laws which would abridge the freedom of
speech or of the press. The rights of freedom of speech and of the press are among
the fundamental rights and liberties protected by the Due Process Clause of the
Fourteenth Amendment from impairment by state action, and that any government
action, which chills constitutionally protected speech or expression, contravenes
the First Amendment.[2]

  If there is a bedrock principle underlying the scope of the First Amendment, it
is that the government may not prohibit expression of an idea simply because
society finds the idea itself offensive or disagreeable. An absolutely free
discussion of the problems of society is a cardinal principle of Americanism, and
the vitality of civil and political institutions in our society depends on such
discussion. Freedom of speech and of the press rests on the assumption that the
widest possible dissemination of information from diverse and antagonistic sources
is essential to the welfare of the public. The underlying safeguard of the
constitutional provision for freedom of the press or speech is “that opinion is
free and conduct alone is amenable to the law.” So long as the means are peaceful,
the communication need not meet standards of acceptability in order to be
protected by the constitutional guarantee of freedom of expression, since the
government may not regulate speech based on its substantive content or the message
it conveys, nor may it, in the realm of private speech or expression, favor one
speaker over another, inasmuch as any discrimination against speech because of its
message is presumed to be unconstitutional. Under the First Amendment the public
has a right to every individual’s views and every person has the right to speak
them without regard to whether the persons involved are famous or anonymous.
Moreover, the rights of free speech and free press, although not identical, are
inseparably connected with the rights to assemble peaceably and to petition for a
redress of grievances, all of which rights are among the most precious of the
liberties safeguarded by the Bill of Rights.[3]

  Freedom of speech and press, historically considered and taken up by the
federal Constitution, means principally, although not exclusively, immunity from
previous restraints or censorship. The term “prior restraint” is used to describe
administrative and judicial orders forbidding certain communications when issued
in advance of the time that such communications are to occur. For First Amendment
purposes, prohibiting the publication of a news story is the essence of censorship
and is allowed only under exceptional circumstances.[4] Based on the particular
circumstances or methods of regulation involved, various other governmental or
judicial acts have been upheld as permissible prior restraints or censorship, such
as true, usually imminent, threats of force.[5] The constitutional guarantee of
freedom of speech and press embraces the distribution or circulation of speech. It
also protects the publication of, and necessarily protects the right to receive
and read, or to see and hear, the matter being distributed or broadcast.[6]

  The First Amendment, U.S. Const. Amend. I, as applied to the states through the
Fourteenth Amendment, U.S. Const. Amend. XIV, protects commercial speech from
unwarranted governmental regulation. However, commercial speech enjoys a more
limited measure of protection, commensurate with its subordinate position in the
scale of First Amendment values, and is subject to modes of regulation that might
be impermissible in the realm of noncommercial expression. Commercial speech
receives a limited form of First Amendment protection so long as it concerns a
lawful activity and is not misleading or fraudulent; once it is determined that
the First Amendment applies to the particular kind of commercial speech at issue,
then such speech may be restricted only if the government’s interest in doing so
is substantial, the restrictions directly advance the government’s asserted
interest, and the restrictions are no more extensive than necessary to serve that
interest.[7]

  With the widespread use of the Internet as a means of communication,
information exchange, and the marketing of goods, courts have considered the First
Amendment protection afforded to Web site operators. Courts have considered
whether a claim by a Web site operator of a First Amendment, U.S. Const. Amend. I,
violation was justiciable (s 4). Courts have also determined whether a claim by a
Web site operator of a First Amendment, U.S. Const. Amend. I, violation was moot
under the facts and circumstances presented (s 5), and whether a Web site operator
had standing to bring a claim alleging a First Amendment, U.S. Const. Amend. I,
violation (s 6).

  Courts have determined whether regulation of an Internet adoption service
supported a claim by a Web site operator of a First Amendment, U.S. Const. Amend.
I, violation (s 7). Courts have determined, under the facts and circumstances
presented, whether particular types of Web site speech or content was
constitutionally protected under the First Amendment, U.S. Const. Amend. I,
including: political speech by a Web site operator or user (s 8), hostile,
disparaging, or offensive speech (s 9), speech advocating criminal activity or the
imminent threat of force (s 10), a Web site marketing or describing materials
pertaining to an illegal tax scheme (s 11), Web site news reporting (s 12), the
posting of legal documents, commentary, or information regarding civil litigation
(s 13) or criminal prosecution (s 14), the court-ordered posting of a criminal
conviction (s 15), a webcam film of incarcerated inmates in a correctional
facility (s 16), a live Web broadcast of an execution in a correctional facility
(s 17), promotional or publicity materials on a Web site, (s 18), and the identity
of Internet subscribers, chat room users, or message board users on a Web site,
finding such identity to be protected (s 19) or not (s 20).

  It has been determined, under the facts and circumstances presented, whether a
Web site operator’s claim of a First Amendment, U.S. Const. Amend. I, violation
was supported by: a registration requirement for Web site domain names (s 21) or
denial of use of a particular Web site domain name (s 22).

  Courts have also determined whether, under the facts and circumstances
presented, the following types of Web site speech or content was constitutionally
protected under the First Amendment, U.S. Const. Amend. I: the identity of a Web
site domain name registrant (s 23), Internet search engine Web site rankings (s
24), use of copyrighted material (s 25), use of material in violation of a
licensing agreement (s 26), union affairs or other employee activities (s 27),
sexually explicit Web sites (s 28), Web sites offering general financial advice (s
29), diet and nutrition information (s 30), and reproductive health information,
including information about abortion (s 31). It has also been determined, under
the facts and circumstances presented, whether discipline by the state bar of an
attorney for misrepresentations on a Web site as to his qualifications supported a
claim of a First Amendment, U.S. Const. Amend. I, violation (s 32).

s  3. Practice pointers

  The First Amendment does not regulate the conduct of private parties. A party
may not, therefore, allege a constitutional violation without alleging the conduct
of a state actor.[8]

             II. First Amendment Protection Afforded Web Site Operator

                            A. Justiciability of Claim

s  4. In general

  In the following cases, the courts determined, under the facts and
circumstances presented, whether a claim by a Web site operator of a First
Amendment, U.S. Const. Amend. I, violation was justiciable.

  In National A-1 Advertising, Inc. v. Network Solutions, Inc., 121 F. Supp. 2d
156, 2000 DNH 204 (D.N.H. 2000), the district court held that a private contractor
retained by the federal government to assume responsibility for approving
second-level domain names for Internet Web sites did not become a state actor
capable of violating the First Amendment, U.S. Const. Amend. I, free speech rights
of rejected applicants denied registration of allegedly vulgar names, on the
grounds that the contractor was assuming a traditional public function, where it
was fortuitous that the federal government happened to start the Internet
registration process, which was not inherently governmental in nature; the policy
of rejecting vulgar names was conceived and applied entirely by the contractor,
with no government approval or input; evidence that the government retained right
to create new top-level Internet domain names, designating classes of Web sites
such as educational and commercial, did not reflect retention of any control over
registration of second-level names; and, while the contract in question was one of
cooperation rather than one involving a grant, the record was insufficient to show
that the government was a joint participant in the ongoing registration process.
In any event, the court found, the portion of the Internet address containing the
second-level domain name was not a discrete forum for speech, precluding the claim
that the entity responsible for registering proposed domain names violated the
First Amendment rights of the applicants denied registration on the grounds that
the proposed names were vulgar, where the purpose of second-level domain names was
identification rather than speech, it was possible for an applicant to include
allegedly vulgar material into other parts of the total Internet address, for
whatever communicative value it might have, and once the Internet user arrived at
the address, the entire Web site would be displayed, with no restrictions imposed
on its content.

  An Internet service provider (ISP) was a private party, rather than a state
actor, and consequently could not be sued by an Internet user claiming his First
Amendment, U.S. Const. Amend. I, rights were violated when he was warned and his
account briefly terminated for making pro-Islamic statements, the district court,
in Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532 (E.D. Va. 2003), aff’d on
other grounds, 2004 WL 602711 (4th Cir. 2004), held.

s  5. Mootness

  The following authority determined whether a claim by a Web site operator of a
First Amendment, U.S. Const. Amend. I, violation was moot under the facts and
circumstances presented.

  In Porter v. Jones, 319 F.3d 483 (9th Cir. 2003), an action by the operator of
a vote swapping Web site, alleging that California’s Secretary of State violated
the First Amendment, U.S. Const. Amend. I, by threatening to prosecute operators
who brokered exchange of votes for presidential candidates, the court of appeals
held that the action was not rendered moot by the fact that the 2000 election had
already taken place, where the operator retained a cognizable interest in claims
for damages, and his claims for injunctive relief were capable of repetition, yet
evading review. Next, the Court held, the claim was ripe for review even though
the operator stated his intent to set up a similar Web site for the 2004 election,
inasmuch as such statement was relevant to the operator’s claim that the
controversy was capable of repetition, yet evading review, not a separate, unripe
claim. Finally, the Court found, the Eleventh Amendment U.S. Const. Amend. XI, did
not bar the federal claim against California’s Secretary of State in his
individual capacity, notwithstanding the Secretary’s argument that the operator’s
addition of the words “in his individual capacity” to the complaint was a mere
pleading device.

s  6. Standing

  The following authority determined, under the facts and circumstances
presented, whether a Web site operator had standing to bring a claim alleging a
First Amendment, U.S. Const. Amend. I, violation.

  Where a self-described reporter for an Internet publication brought an action
pursuant to 42 U.S.C.A. s 1983, action alleging that his First Amendment rights
were violated by a gag order issued by a state trial court judge that prohibited
the parties from discussing an adoption dispute with the media and threatening the
party with jail for contempt of court if she did not remove certain pictures and
postings from the Internet, the court held that the reporter had standing to
challenge the gag order as violative of the reporter’s First Amendment, U.S.
Const. Amend. I, rights as a recipient of speech, even though the news media were
not subject to a gag order, where it was apparent that the party, who had engaged
in efforts to publicize her case on Web sites, would have spoken to news outlets
but for the order, the district court, in Brown v. Damiani, 154 F. Supp. 2d 317
(D. Conn. 2001), held.

           B. First Amendment Protection Under Particular Circumstances

s  7. Regulation of Internet adoption service

  The following authority determined, under the facts and circumstances
presented, whether regulation of an Internet adoption service supported a claim by
a Web site operator of a First Amendment, U.S. Const. Amend. I, violation.

  In Butler v. Adoption Media, LLC, 486 F. Supp. 2d 1022 (N.D. Cal. 2007)
(applying California law), where the plaintiffs, registered domestic partners who
sought to adopt a child, brought an action seeking an injunction against the
defendants, operators of a Web site, ParentProfiles.com, which offered a service
that allowed prospective adoptive parents to post profiles containing information
about themselves for a fee, for review by women who have given birth or are about
to give birth and plan to give up the children for adoption, who had a policy of
prohibiting same-sex couples from posting profiles on the Web site, the district
court denied injunctive relief, finding that the defendants’ First Amendment, U.S.
Const. Amend. I, rights were not violated by requiring them to accept profiles by
same-sex couples. The court determined that the defendants were in the business of
selling adoption-related services, thus, the Web site ParentProfiles.com was not
expressive speech, but was, rather, a commercial enterprise, consisting of a Web
site where prospective parents post profiles for a fee. The court continued the
language in the profiles that were posted on the site was not the defendants’
language-it was the language of the defendants’ paying customers. Simply
publishing information written by prospective parents does not suffice to
transform the defendants’ discriminatory conduct, which violated the Unruh Civil
Rights Act (the Unruh Act or the Act), Cal. Civ. Code ss 51 and 51.5, into speech
itself, the court found, and, moreover, even if the ParentProfiles.com Web site
were deemed to have some expressive component, the defendants still could not
prevail in their First Amendment argument, since a governmental regulation that
places a burden on expressive activity is sufficiently justified if it is within
the constitutional power of the government, if it furthers an important or
substantial governmental interest, and if the incidental restrictions on alleged
First Amendment freedoms are no greater than is essential to the furtherance of
that interest. In this case, the court concluded, California had the
constitutional authority to bar discrimination on the basis of sexual orientation
in public accommodations, California’s interest in combating discrimination on the
basis of sexual orientation was compelling, and the Unruh Act prohibited such
discrimination in order to eliminate the harms caused by the discriminatory
conduct, not to silence particular viewpoints.

s  8. Political speech

  In the following cases, the courts determined, under the facts and
circumstances presented, whether the applicability of First Amendment, U.S. Const.
Amend. I, protection to political speech by a Web site operator or user was
established or supportable.

  In Zieper v. Metzinger, 474 F.3d 60, 35 Media L. Rep. (BNA) 1331 (2d Cir.
2007), an action by a filmmaker and a Web site host against an FBI agent and
assistant United States Attorney (AUSA), alleging their attempts to shut down a
Web site on which a controversial video was appearing violated, inter alia, the
First Amendment, U.S. Const. Amend. I, the court of appeals, affirming the
district court’s order granting summary judgment in favor of the defendants, held
that a genuine issue of material fact as to whether statements allegedly made to
the filmmaker by the FBI agent and assistant United States Attorney (AUSA), trying
to convince the filmmaker to remove the film from the Web site, amounted to
coercion, precluding summary judgment for the agent and AUSA; however, the AUSA
and FBI agent were entitled to qualified immunity for their conduct where it could
reasonably be interpreted as not coercive, as the AUSA and agent stated that their
job was to stop a riot, and that they wanted to get the video off the Web site,
and although the AUSA indicated that the upstream Internet provider was willing to
remove the video if the Web site host would not, she did not suggest that she
understood the potential economic significance to the Web site host or that she
would use any economic sanctions as leverage to get the video removed.

  In Pilchesky v. Miller, 2006 WL 2884445 (M.D. Pa. 2006), where the plaintiffs
operated an online message board on a Web site concerning local politics and
making certain allegations about a particular local government employee, and the
defendants, including a county district attorney, requested the immediate shutdown
of the plaintiffs’ message board, stated that the Web site was on notice of
illegal activities of one of its customers and that a court order would be
arranged if necessary, the district court held that if the plaintiffs were able to
prove those facts, a reasonable jury could conclude that the threat of a court
order, being put on notice to criminal activity of a customer, and the fax, taken
in conjunction with the previous occurrence, were coercive to an extent that they
compelled the Web site to block access to the plaintiffs’ message board in
violation of the First Amendment, U.S. Const. Amend. I, rights of the plaintiffs.
The court also found that the same facts could lead a jury to conclude that the
government improperly used the state’s power as a means of chilling the
plaintiffs’ speech. While the defendants were perfectly free to send requests to
both the plaintiffs and the Web site asking for materials to be removed, in
allegedly opening a criminal investigation with the express purpose of having the
plaintiffs’ political speech censored, a reasonable jury could find that the
defendants impermissibly invoked the power of the state as a means of preventing
the speech of the plaintiffs, the court said.

  In an action by the operator and would-be users of a “vote swapping” Web site
against the state Secretary of State under 42 U.S.C.A. s 1983, alleging First
Amendment violations arising out of the Secretary’s threat to prosecute the
operators of a similar Web site for brokering the exchange of votes for
presidential candidates, the court in Porter v. Bowen, 496 F.3d 1009 (9th Cir.
2007), held that the mechanisms utilized by the plaintiffs’ Web site for brokering
the exchange of votes for presidential candidates, and the communication and vote
swaps that these mechanisms enabled, were protected under the First Amendment,
where the mechanisms conveyed useful information by providing email addresses,
offered data about the political leanings and electoral systems of various states,
and expressed a reasonably clear message of support for third-party candidacies,
and where the communication enabled by these mechanisms would have concerned
political preferences, and the vote swaps would have involved people’s opinions on
campaigns for political office. Although ultimately finding that the Secretary was
entitled to qualified immunity as to the plaintiffs’ claims for damages, the court
held that the Secretary’s threats did not further the state’s important interest
in preventing corruption, and that, while the threats did further the State’s
interest in preventing fraud, the Secretary failed to show that the burden imposed
via the threats was not greater than essential. The court also concluded that the
Secretary’s threats did not further the state’s purported interest in preventing
subversion of the Electoral College.

s  9. Hostile, disparaging, or offensive speech

  In the following cases, the courts determined, under the facts and
circumstances presented, whether the applicability of First Amendment, U.S. Const.
Amend. I, protection to speech by a Web site operator or user deemed to be
hostile, disparaging, offensive, or the like, was established or supportable.

  In Layshock v. Hermitage School Dist., 496 F. Supp. 2d 587 (W.D. Pa. 2007), the
court held that no nexus existed between a student’s creation of an Internet
parody of his school principal and a substantial disruption of the school
environment, and thus, the school’s suspension of the student violated his free
speech rights where no classes were canceled, no widespread disorder occurred, the
only in-school conduct in which the student engaged in relation to the parody was
showing it to other students in the classroom, and the actual charges made by the
school district were directed only at the student’s off-campus conduct. Moreover,
the court ruled, a popular Internet site where users could share photos, journals,
and personal interests with other Internet users was not outside the protections
of free speech under the “fighting words” doctrine, for purposes of the student’s
action challenging his discipline arising out of the parody, where, the court
reasoned, there was no in-person confrontation in cyberspace such that physical
violence was likely to be instigated.

  See, Myers v. Loudoun County School Bd., 500 F. Supp. 2d 539 (E.D. Va. 2007),
wherein the court held that school authorities could decline, on grounds of
vulgarity and consistent with the First Amendment, to accept a proposed
advertisement in a school athletic program referring readers to Internet Web sites
named, “www.CivilReligionSucks.com,” or “www.CivilReligionSux.com.”

  A high school student’s suspension for publishing objectionable statements on
an Internet Web site, which included a list of people the student wished would
die, violated the student’s First Amendment, U.S. Const. Amend. I, rights, absent
proof of disruption to the school or that the Web site was created on school
property, the district court, in Mahaffey ex rel. Mahaffey v. Aldrich, 236 F.
Supp. 2d 779 (E.D. Mich. 2002), held. Under the First Amendment, the court found,
the high school officials could only punish the student for his speech on the Web
site if that speech substantially interfered with the work of the school or
impinged upon the rights of other students. The court concluded that the student’s
statements on the Web site did not constitute threats, and thus the speech was
protected by the First Amendment, where there was no evidence that the student
communicated statements on the Web site to anyone other than the listing of names,
there was no threat made against any students, and a reasonable person in the
student’s place would not foresee that the statements would be interpreted as a
serious expression of intent to harm or kill anyone listed on the Web site. The
court found that the Web site did not constitute a true threat for purposes of the
First Amendment, where, even though the Web site asked why the teacher should die,
showed a picture of the teacher’s head severed from her body, and solicited funds
for a hit man, the Web site, taken as a whole, was a sophomoric, crude, highly
offensive, and perhaps misguided attempt at humor or parody, and it did not
reflect a serious expression of intent to inflict harm, despite the offense taken
by the teacher and fear she experienced after viewing the Web site.

  For purposes of his motion for a temporary restraining order, a high school
student had a substantial likelihood of success on the merits of his claim that a
school violated his First Amendment rights by disciplining him for creating an
Internet Web page from his home without using school resources or time, where the
Web page contained some commentary on the school administration and faculty, mock
obituaries of at least two of the student’s friends, and allowed visitors to the
Web site to vote on who would be the subject of the next mock obituary, the
district court, in Emmett v. Kent School Dist. No. 415, 92 F. Supp. 2d 1088, 143
Ed. Law Rep. 828 (W.D. Wash. 2000), held.

s  10. Advocacy of criminal activity/threat of force

  In the following cases, the courts determined, under the facts and
circumstances presented, whether the applicability of First Amendment, U.S. Const.
Amend. I, protection to speech by a Web site operator or user advocating criminal
activity or the imminent threat of force was established or supportable.

  The court in U.S. v. Sutcliffe, 505 F.3d 944 (9th Cir. 2007), held that the
defendant’s statements on his Web site explicitly threatening certain named
individuals with bodily harm were “true threats” falling outside of First
Amendment speech protections, where the statements were made in the context of a
labor dispute after the defendant was fired by his employer. The defendant was
convicted, inter alia, of transmitting interstate threats to injure in violation
of 18 U.S.C.A. s 875(c). The defendant, a computer technician, was hired by a
telecommunications development company but was fired shortly thereafter because he
refused to provide his employer with his Social Security number. The employer
discovered that the defendant had also failed to disclose past criminal
convictions on his job application. Following his termination, the defendant
threatened the company’s director of human resources and began picketing in front
of the company building with a sign referring to a Web site he created. On his Web
site, the defendant displayed personal information about other employees of the
company, including payroll information, Social Security numbers, birth dates, and
residential addresses, with some of this information hyperlinked to an article
about identity theft. He also directed personal messages appearing on his Web site
to specific individuals, including the process server who served him with a
temporary restraining order, listing her name and license plate number, the
company’s former assistant general counsel, who had a Web page “Dead-icated” to
him, and the company’s chairman, who he warned, “Keep your dogs @ bay… I’m now
armed.” The court explained that true threats, defined as statements where the
speaker means to communicate a serious expression of an intent to commit an act of
unlawful violence to a particular individual or group, fall outside the
protections of the First Amendment. Rejecting the defendant’s argument that his
statements were not true threats because they were made in the context of a labor
dispute, the court observed that expressions of general opposition to the company
and its employment policies would likely constitute constitutionally protected
speech; the defendant’s statements, which explicitly threatened named individuals
with bodily harm, were not protected.

  The actions of antiabortion activist organizations in publicly disclosing,
through “Guilty” posters and an Internet Web site, the names and addresses of
abortion providers, constituted true threats of force within the meaning of the
Freedom of Access to Clinic Entrances Act (FACE), and thus were not protected
speech under the First Amendment, U.S. Const. Amend. I, since, by knowingly
replicating a wanted-type poster pattern that preceded the elimination of other
abortion providers and by putting abortion providers in an abortionists’ file that
scored fatalities, the organizations were not staking out a position of debate but
of threatened demise, the court of appeals, in Planned Parenthood of
Columbia/Willamette, Inc. v. American Coalition of Life Activists, 290 F.3d 1058
(9th Cir. 2002), as amended, (July 10, 2002), held.

  In Chai v. Department of State, 466 F.3d 125 (D.C. Cir. 2006), cert. denied,
127 S. Ct. 3010 (U.S. 2007), where three entities, Kahane Chai, Kach, and
Kahane.org, petitioned for review of an order of the Secretary of State
redesignating them as foreign terrorist organizations (FTO), the court of appeals
held that designating Kahane.org an FTO, pursuant to the Antiterrorism and
Effective Death Penalty Act (AEDPA), 8 U.S.C.A. s 1189(c), did not violate the
First Amendment, U.S. Const. Amend. I. The court determined that, although the
petitioners claimed that the Web site was a medium of free speech which did not
advocate terror, the AEDPA did not purport to restrain speech; rather, the focus
was upon the nonexpressive component of the organization’s conduct, and the
government clearly may restrain such conduct when it facilitates terrorist
activity. The court found, next, that Kahane.org had been designated a controlled
entity of Kahane Chai, and a restraint upon the conduct of Kahane.org was
therefore tantamount to a restraint upon the conduct of Kahane Chai itself. The
Court concluded that the restraints imposed upon a FTO by the AEDPA-namely the
organization’s loss of access to funds held by financial institutions subject to
United States law, the inability of alien representatives of the FTO to receive
visas or enter the United States, and the prohibition upon knowingly donating to
the FTO-did not violate the FTO’s First Amendment right to speak, thus, the
AEDPA’s restraints upon Kahane.org did not violate its First Amendment right to
speak.

  Publishing on its Web site, by an organization opposed to the use of animals in
research, the addresses of a biopharmaceutical company’s employees and making
threats of home visits to the employees’ homes, were not protected by the First
Amendment, U.S. Const. Amend. I, right to free speech, the court in Novartis
Vaccines and Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 143
Cal. App. 4th 1284, 50 Cal. Rptr. 3d 27, 36 Envtl. L. Rep. 20211 (1st Dist. 2006),
held. The court observed that the First Amendment protects speech that advocates
violence, so long as the speech is not directed to inciting or producing imminent
lawless action and is not likely to incite or produce such action; however, in the
instant case, the organization’s activities were likely to incite or produce
imminent lawless action.

  The defendant’s posting of a notice on an Internet Web site that stated that a
certain police officer was WANTED: Dead or Alive, and that he should be
apprehended with extreme prejudice, was not constitutionally protected political
speech under the First Amendment, U.S. Const. Amend. I, and constituted an
unequivocal threat to arrange for the officer’s kidnapping or killing in
retaliation for the impound of defendant’s truck, thus supporting a conviction for
making criminal threats where the statement was prominently posted on a Web site
accessible to millions of Internet users, and the defendant addressed the officer
by name on the Web site after learning that the officer was aware of the
statement, the court in People v. Neuman, 2002 WL 800516 (Cal. App. 2d Dist.
2002), unpublished/noncitable, (Apr. 30, 2002), held.

s  11. Illegal tax scheme

  In the following cases, the courts determined, under the facts and
circumstances presented, whether the applicability of First Amendment, U.S. Const.
Amend. I, protection to a Web site marketing or describing materials pertaining to
an illegal tax scheme was established or supportable.

  The court in U.S. v. Schulz, 2007-2 U.S. Tax Cas. (CCH) P50619, 100 A.F.T.R.2d
2007-5538, 2007 WL 2286410 (N.D. N.Y. 2007), held that the First Amendment did not
prevent the court from enjoining the defendants from promoting an illegal tax
shelter on their Web site, concluding that, while much of the defendant’s conduct
was protected speech, to the extent that it could be considered commercial speech,
it could be enjoined because the government may prohibit false, misleading, or
deceptive commercial speech or speech that promotes unlawful conduct. Moreover,
even assuming that the defendants’ speech was political in nature, it could still
be enjoined, as the First Amendment does not protect speech that incites imminent
lawless action. Because the defendants were not merely advocating, but have gone
the extra step in instructing others on how to engage in illegal activity and have
supplied the means to do so through forms and material available on their Web
site, their speech may be enjoined, the court determined.

  Where the United States sought to enjoin operation of a tax protester’s Web
site, the court of appeals, in U.S. v. Bell, 414 F.3d 474, 96 A.F.T.R.2d 2005-5155
(3d Cir. 2005), recognizing that false or unlawful commercial speech is not
entitled to First Amendment, U.S. Const. Amend. I, protection, held that the
operation of a tax protester’s Web site could properly be enjoined to the extent
it consisted of unprotected false commercial speech under the First Amendment,
even though the Web site also contained token political commentary, where the
speech and commentary were not inextricably intertwined, and the Web site’s
primary function was to sell fraudulent and illegal tax advice and services. Next,
the court, stating that in a commercial setting the government may impose
reasonable regulations on content to prevent deception of customers and may
mandate the disclosure of factual commercial information without offending the
First Amendment, held that the provision of the injunction against operation of
the tax protester’s Web site, requiring him to place an injunctive order
prominently on his Web site, did not constitute unconstitutionally forced speech.
Finally, the court held that the provision of the injunction requiring the Web
site operator to furnish the government with a list of customers who had bought
his products or services, did not violate his First Amendment right of free
association, where the operation was primarily a commercial enterprise, not a
political group, and the government had a compelling interest in determining
whether the operator’s customers had filed fraudulent returns.

  In U.S. v. Standring, 97 A.F.T.R.2d 2006-1895, 2006 WL 689116 (S.D. Ohio 2006),
where the defendant established various Internet Web sites where he posted
educational materials and various documents for sale, falsely telling customers
that they could use various documents obtained under the Freedom of Information
Act to prove they are not liable for federal income tax if they are not engaged in
an excise taxable activity or are not federal corporate officers, the district
court held that the defendant’s activities could be preliminarily enjoined under
26 U.S.C.A. s 7408, as conduct subject to penalty under 26 U.S.C.A. s 6700, which
interfered with the administration of the internal revenue laws, and that the
defendant’s speech as contained on the Web site was not protected by the First
Amendment U.S. Const. Amend. I. The court found that the defendant’s inclusion of
articles with political commentary and the like did not transform his Web site,
promotional materials or decoding services into political speech, rather, the
inclusion of such speech into the defendant’s Web site and promotional materials
actually reinforced the fraudulent commercial message and promoted tax evasion by
duping customers into believing they were not legally obligated to file returns or
pay taxes.

  The district court in U.S. v. Gleason, 92 A.F.T.R.2d 2003-5232, 2003 WL
21770815 (M.D. Tenn. 2003), vacated on other grounds, 2003 WL 23336320 (M.D. Tenn.
2003), ordered the operator of a Web site, who falsely represented that he was an
attorney and an Internal Revenue agent and guaranteed tax refunds in violation of
the Internal Revenue Code based on false “opinion letters” which he marketed on
the Web site, to remove from his Web sites all false commercial speech, to display
prominently on the first page of those Web sites a complete copy of the court’s
permanent injunction, including a disclaimer advising his customers that he
misrepresented that he was an attorney, that he misrepresented that he was an
enrolled agent, that he guaranteed tax refunds in violation of the Internal
Revenue Code, and to maintain the Web sites for one year with a complete copy of
the court’s permanent injunction.

  The district court in U.S. v. Hargis, 94 A.F.T.R.2d 2004-7257, 2004 WL 2830717
(C.D. Cal. 2004), recognizing, under 26 U.S.C.A. s 7408, an abusive tax-shelter
promoter may be enjoined if a court finds that the person has engaged in any
conduct subject to penalty under 26 U.S.C.A. s 6700, (relating to penalties for
promoting abusive tax shelters) and that injunctive relief is appropriate to
prevent recurrence of such conduct, held that the defendant, who promoted on a Web
site a warehouse bank as an illegal tax evasion scheme, would be permanently
enjoined from such activities and remove from the Web site all false commercial
speech, including all references to the warehouse bank, and display prominently on
the first page of the Web site a complete copy of the court’s permanent
injunction.

  In U.S. v. Rivera, 92 A.F.T.R.2d 2003-6844, 2003 WL 22429482 (C.D. Cal. 2003),
the district court found that the defendant maintained a Web site which sold
abusive tax scheme promotional materials in violation of the Internal Revenue
Code, and ordered that the defendant remove from the Web site all false commercial
speech, and materials designed to incite others imminently to violate the law, and
to display for one year on the home page a complete copy of the court’s permanent
injunction.

  In U.S. v. Stoll, 2005-2 U.S. Tax Cas. (CCH) P50459, 96 A.F.T.R.2d 2005-5044,
2005 WL 1763612 (W.D. Wash. 2005), the district court found that the defendants,
who operated a Web site which, inter alia, provided false tax information and
advised taxpayers not to pay taxes, violated the Internal Revenue Code 26 U.S.C.A.
ss 6700, 6701, and thus would be preliminarily enjoined under 26 U.S.C.A. s 7408,
from such activities; the court requiring that the defendants remove from their
Web site all abusive tax scheme promotional materials, false commercial speech,
and materials designed to incite others imminently to violate the law, including
the internal revenue laws, to display prominently on the first page of the Web
site a complete copy of the court’s preliminary injunction, and to maintain the
Web site throughout the course of the litigation a complete copy of the court’s
permanent injunction so displayed throughout that time.

  The district court in U.S. v. Cooper, 2004-1 U.S. Tax Cas. (CCH) P50107, 92
A.F.T.R.2d 2003-7441, 2003 WL 23138760 (D. Colo. 2003), held that the defendants,
who operated several Web sites in which they marketed an abusive tax scheme in
which they purported to assist taxpayers to avoid tax liability by assisting them
to expatriate/repatriate, were in violation of the United States tax laws, and
therefore would be permanently enjoined from their activities, ordering them: (1)
to remove from their Web sites all abusive tax scheme promotional materials, false
commercial speech, and materials designed to incite others imminently to violate
the law (including the tax laws); (2) to display prominently on the first page of
those Web sites a complete copy of the preliminary injunction order; and (3) to
maintain the purged Web sites, with the order prominently displayed, until such
time as the court ordered otherwise.

  The district court in U.S. v. Luman, 95 A.F.T.R.2d 2005-2414, 2005 WL 1027075
(N.D. Ga. 2005), recognizing, under 26 U.S.C.A. s 7408, an abusive tax-shelter
promoter may be enjoined if a court finds that the person has engaged in any
conduct subject to penalty under 26 U.S.C.A. s 6700, (relating to penalties for
promoting abusive tax shelters) and that injunctive relief is appropriate to
prevent recurrence of such conduct, held that the defendant, who falsely advised
his customers on an Internet Web site to cease filing income tax returns, paying
federal income tax, and paying federal payroll taxes, and sold the TaxBuster Guide
through his Web site, falsely advising his customers that by submitting the
documents in the TaxBuster Guide to the Internal Revenue Service, the customers
can avoid federal income tax, would be enjoined from such conduct. The court
ordered that the defendant and his representatives remove from his Web site all
false commercial speech, including all references to the TaxBuster Guide, and
display prominently on the first page of the Web site a complete copy of the
court’s permanent injunction.

s  12. Web site news reporting

  The following authority determined, under the facts and circumstances
presented, whether the applicability of First Amendment, U.S. Const. Amend. I,
protection to Web site news reporting was established or supportable.

  See, Putnam Pit, Inc. v. City of Cookeville, 76 Fed. Appx. 607, 31 Media L.
Rep. (BNA) 2201 (6th Cir. 2003), wherein the court, in a s 1983 action[9] brought
by the publisher of a free tabloid and Internet Web page, through which the
publisher sought to report on government corruption against the defendant city,
alleging that the city’s refusal to establish a hypertext link to the plaintiff’s
Web site from the city’s Internet home page violated his First Amendment rights,
held that, as established by the law of the case, the city Web site constituted a
nonpublic forum, and further held that because the issue of whether the
plaintiff’s Web site met the city’s criteria for hypertext linking was a question
for the jury, which had found that it did not, the plaintiff’s claim must fail.
Under the standards applicable to the regulation of a nonpublic forum, the court
explained, the government violates the First Amendment when it denies access to a
speaker solely to suppress the point of view the speaker espouses on an otherwise
includible subject. Because the plaintiff did not meet the eligibility criteria
for establishing the desired hypertext link, the jury did not need to reach the
issue of whether the city’s denial of the link was solely based on the plaintiff’s
viewpoint.

  Where the operator of an Internet Web site covering a state university’s
athletic teams brought an action in state district court asserting claims under 42
U.S.C.A. s 1983, and state law against the university’s assistant athletic
director for media relations, alleging false arrest, retaliation for exercise of
First Amendment, U.S. Const. Amend. I, rights, and denial of the First Amendment
right to gather news from the university, the court of appeals, in Smith v. Plati,
258 F.3d 1167, 155 Ed. Law Rep. 1090, 29 Media L. Rep. (BNA) 2305 (10th Cir.
2001), while recognizing that publishing an Internet Web site covering the state
university’s athletic teams was an activity protected by the First Amendment, held
that the Web site operator had no First Amendment right to newsgathering, which
the university’s assistant athletic director and the university allegedly violated
by declining to provide him certain information about its varsity athletic
programs. The court, affirming the district court’s dismissal of the complaint,
found that the assistant athletic director’s alleged threat to copyright athletic
information and the alleged exclusion of the Web site operator from football
practices would not have chilled a person of ordinary firmness from continuing to
publish the Internet site, as required for a s 1983 claim for retaliation for
exercise of First Amendment rights, since the alleged actions might have made it
more difficult to obtain some information regarding the university’s varsity
athletic programs, but alternative avenues to information would have remained
open, and the alleged actions would have done nothing to affect an ordinary
person’s ability to actually maintain a Web site. The court concluded that there
is no general First Amendment right of access to all sources of information within
governmental control; this applies equally to both public and press, for the
press, generally speaking, do not have a special right of access to government
information not available to the public.

s  13. Posting of legal documents, commentary, and information-Civil litigation

  The following authority considered whether and to what extent First Amendment
(U.S. Const. Amend. I) protection extended to a Web site operator in connection
with the posting of legal documents, commentary, and information concerning a
matter of civil litigation.

  The district court, in Valeo Intellectual Property, Inc. v. Data Depth Corp.,
368 F. Supp. 2d 1121 (W.D. Wash. 2005), held that a software licensee suing the
licensor for wrongful termination of a licensing agreement was not entitled to a
preliminary injunction requiring the licensor, who had posted some of the action’s
pleading on its Web site, to post all documents from the litigation, where the
posted documents were not alleged to be false or misleading, and the First
Amendment, U.S. Const. Amend. I, precluded forcing the licensor to convert its Web
site into a forum for neutral presentation of the lawsuit.

  In a proposed collective action under the Fair Labor Standards Act (FLSA)[10]
seeking unpaid overtime wages, the court in Maddox v. Knowledge Learning Corp.,
499 F. Supp. 2d 1338 (N.D. Ga. 2007), held that a defendant-employer’s emergency
motion for a cease and desist order regarding the plaintiff-employees’
communications with putative class member through a Web site did not violate the
First Amendment, concluding that there was good cause for such an order. First,
the court determined, a prohibition against the employees issuing a
precertification statement on their Web site portraying as undisputed a fact that
was strongly disputed by the employer, regarding the alleged failure of the
employer to pay overtime to employees who were paid on an hourly basis and were
required to work for more than 40 hours per week, did not violate the First
Amendment. Likewise, a prohibition against employees issuing a precertification
statement on their Web site that misled potential plaintiffs as to their
eligibility as class members, failed to notify potential plaintiffs of their right
to retain counsel of their choosing, and that inappropriately suggested that the
employer was likely to retaliate against potential plaintiffs who joined the
lawsuit did not violate the First Amendment. In so holding, the court noted that,
under the First Amendment, courts may not totally proscribe the plaintiffs in a
collective action under the FLSA from communicating with potential class members
through a Web site or other means prior to conditional certification, but it is
within the court’s discretion to prohibit the plaintiffs from issuing
precertification statements that are factually inaccurate, unbalanced, or
misleading.

s  14. Posting of legal documents, commentary, and information-Criminal
prosecution

  The following authority considered whether and to what extent First Amendment
(U.S. Const. Amend. I) protection extended to a Web site operator in connection
with the posting of legal documents, commentary, and information concerning a
matter of criminal prosecution.

  In U.S. v. Carmichael, 326 F. Supp. 2d 1267 (M.D. Ala. 2004), order
supplemented on other grounds, 326 F. Supp. 2d 1303 (M.D. Ala. 2004), the district
court held that an Internet Web site maintained by the defendant, charged with
conspiracy to possess marijuana with intent to deliver and money laundering, did
not pose a true threat unprotected by the First Amendment, U.S. Const. Amend. I,
when it asked for information regarding his case, posted pictures of informants,
left blank spaces for pictures of government agents working on the case, and
requested the addresses for the informants and agents. The court found that the
context of the Web site did not establish the site as a true threat, which the
court could order taken down when there was no showing of any actual or threatened
conduct detrimental to the informants. The court held, next, that the prior
restraint on speech, which would occur if the defendant was ordered to take down
the Web site, could not be sustained on the grounds that the presence of the site
potentially tainted the jury pool, since the remedy of site termination was not
sufficiently narrowly tailored to advance the government objective, as prospective
jurors could simply be asked if they had seen the site, and the impaneled jury
could be instructed not to look at it. Finally, the court held that it would not
assert its inherent power to order the defendant to take down the Web site on the
grounds that the site posed a hazard to the informants and agents overriding the
defendant’s First Amendment right to be free from prior restraint, since, while
the informants felt threatened by the site, there were other independent reasons
for them to feel apprehensive, and the agents’ claim of privacy loss affecting
their future undercover effectiveness was belied by the absence of pictures on the
site and their in-person appearances at trials.

s  14.5. Posting of financial documents

[Cumulative Supplement]

  The following authority considered the First Amendment protection to be
afforded to a website operator concerning the posting of financial documents.

CUMULATIVE SUPPLEMENT

Cases:

  Denial of foreign financial institutions’ request for preliminary injunction,
and dissolution of permanent injunction entered pursuant to stipulation between
institutions and one defendant, was warranted in institutions’ tort action
alleging that website and related parties unlawfully and wrongfully published on
website confidential and forged bank documents belonging to institutions, given
that court possibly lacked subject matter jurisdiction over action, that request
for preliminary injunction and existing injunction raised First Amendment
concerns, that any injunction would likely be ineffective to protect professed
privacy rights of institutions’ clients, and that existing injunction was not
least restrictive means to achieve institutions’ goals of protecting their clients
from disclosure of their personal information. U.S. Const. Amend. I; West’s Ann.
Cal. Bus. & Prof.Code s 17200. Bank Julius Baer & Co. Ltd v. Wikileaks, 2008 WL
554721 (N.D. Cal. 2008).

[Top of Section]

[END OF SUPPLEMENT]

s  15. Court-ordered posting of criminal conviction

  The following authority considered whether and to what extent First Amendment
(U.S. Const. Amend. I) protection extended to a Web site operator in connection
with the court-ordered posting of the Web site operator’s criminal conviction.

  A condition of an appeal bond requiring the posting of notice of the
defendant’s theft conviction on an Internet Web page and in other media
advertising violated the defendant’s right to free speech under the state
constitution, Tex. Const. Art. I, s 8, and impeded his right to pursue a living
through legitimate means, despite the state’s claim that the condition avoided the
impending danger of future criminal activity, where no evidence indicated that the
defendant had used the Internet or any other form of advertising to engage in
conduct for which the jury found him guilty, and where he had no history of prior
criminal activity, the court in Cuellar v. State, 985 S.W.2d 656 (Tex. App.
Houston 1st Dist. 1999), held.

s  16. Webcam film of incarcerated inmates

  The following authority determined, under the facts and circumstances
presented, whether the applicability of First Amendment, U.S. Const. Amend. I,
protection to a webcam film of incarcerated inmates was established or
supportable.

  The grant of a preliminary injunction prohibiting a county sheriff from
continuing with a policy of using World Wide Web cameras, or webcams, to stream
live images of pretrial detainees on the Internet did not violate the sheriff’s
First Amendment, U.S. Const. Amend. I, free speech rights, as the webcam
transmissions were not the sheriff’s personal communications, but rather
constituted governmental speech, since the sheriff could not have obtained or
transmitted images absent his official position, the court of appeals, in Demery
v. Arpaio, 378 F.3d 1020 (9th Cir. 2004), cert. denied, 545 U.S. 1139, 125 S. Ct.
2961, 162 L. Ed. 2d 887 (2005), held.

s  17. Live web broadcast of execution

  The following authority determined, under the facts and circumstances
presented, whether the applicability of First Amendment, U.S. Const. Amend. I,
protection to a live web broadcast of incarcerated inmates was established or
supportable.

  Where an Internet content provider sued a penitentiary warden and other
government officials for declaratory and injunctive relief, seeking to broadcast
live over the Internet the execution of the defendant convicted of bombing he
federal building in Oklahoma City, Oklahoma, and challenging the constitutionality
of the regulation prohibiting recording devices at federal executions, the
district court, in Entertainment Network, Inc. v. Lappin, 134 F. Supp. 2d 1002, 29
Media L. Rep. (BNA) 1769 (S.D. Ind. 2001), held that the regulation was reasonably
related to legitimate penological interests, and thus, the Internet content
provider’s First Amendment, U.S. Const. Amend. I, rights were not violated when it
was prevented from transmitting a live broadcast of the execution of the
defendant, where the warden offered explanations for the regulation, including
that inmates’ understanding that they would not be dehumanized was important to
security, and, although another veteran of the corrections profession disagreed
with the explanations, his views were not based on a study of the conditions
within the BOP or the prison where the execution was to take place. In so holding,
the court recognized that a First Amendment challenge to a Bureau of Prisons (BOP)
regulation must be considered in light of the special environment of a prison,
where administrators must be accorded wide-ranging deference in the execution of
policies and practices that in their judgment are needed to preserve internal
order and discipline and to maintain institutional security. The court concluded,
furthermore, that any First Amendment protection for viewing executions is not
violated by the Bureau of Prisons (BOP) regulation against recording or
broadcasting them to the public.

s  18. Promotional or publicity materials

  In the following cases, the courts determined, under the facts and
circumstances presented, whether the applicability of First Amendment, U.S. Const.
Amend. I, protection to publicity materials on a Web site was established or
supportable.

  In Bosley v. Wildwett.com., 2004 WL 2169179 (6th Cir. 2004), where a television
news anchor, who was videotaped in various states of undress while participating
in a wet t-shirt contest, moved for a preliminary injunction against licensor and
licensee restraining their commercial use of her videotaped images to promote the
sale of their sexually related goods including videos and Web site memberships,
the court of appeals, reversing the district court’s order granting the
preliminary injunction, stated that it was not persuaded, at that stage of the
proceedings, that the defendant’s speech was outside the protections of the First
Amendment, U.S. Const. Amend. I. Moreover, the court said, even if the defendant’s
Web site was viewed as purely commercial, some circuits have indicated that the
requirement of procedural safeguards in the context of a prior restraint indeed
applies to commercial speech. The court concluded that the defendant had shown a
strong likelihood of success in demonstrating that the district court’s
preliminary injunction was a prior restraint on speech in violation of the First
Amendment.

  In Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 114 Cal. Rptr. 2d
307 (1st Dist. 2001), the court held that a baseball league’s use of retired
baseball players’ names, voices, signatures, photographs and likenesses on Web
sites, documentaries, and game day programs was entitled to receive full First
Amendment, U.S. Const. Amend. I, protection accorded to noncommercial speech, as
the significant public interest in the sport, favoring free dissemination of
information regarding baseball’s history, far outweighed any competing interest of
the players, whose economic interests were not impaired and may have been enhanced
by the league’s conduct. The court held, furthermore, that the league’s uses of
the retired baseball players’ names, voices, signatures, photographs and
likenesses were public affairs uses exempt from consent under Cal. Civ. Code s
3344(a) and (d), the right of publicity statute.

s  19. Identity of Internet subscribers/chat room users/message board
users-Protected

  The following authority determined that the applicability of First Amendment,
U.S. Const. Amend. I, protection to the identity of Internet subscribers, chat
room, or message board users was established or supportable.

  The district court in Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088, 29 Media
L. Rep. (BNA) 1970, 49 Fed. R. Serv. 3d 404, 120 A.L.R.5th 725 (W.D. Wash. 2001),
recognizing that discovery requests seeking to identify anonymous Internet users
must be subjected to careful scrutiny by the courts, since stripping anonymity by
civil subpoena enforced under liberal rules of civil discovery would have a
significant chilling effect on Internet communications and thus on basic First
Amendment, U.S. Const. Amend. I, rights, held that the defendant corporation in a
shareholder derivative suit alleging fraud on the market was not entitled to
obtain the identities of anonymous posters of messages on the Internet from an
Internet service provider, pursuant to a civil subpoena, based on the
corporation’s affirmative defense that the posted messages, not fraud, caused a
drop in the value of its stock. The court stated, to enforce a civil subpoena
seeking identifying information of a nonparty individual who has communicated
anonymously over the Internet, a party seeking information must demonstrate, by a
clear showing on the record, that: (1) the subpoena seeking information was issued
in good faith and not for any improper purpose; (2) the information sought relates
to a core claim or defense; (3) the identifying information is directly and
materially relevant to a claim or defense; and (4) the information sufficient to
establish or to disprove the claim or defense is unavailable from any other
source. In the instant case, the court found, while the posted messages may have
been relevant to the defense, personal information about the posters was not; the
assertion that anonymous posters caused a drop in the value was not a core
defense, since it was just one of 27 different affirmative defenses raised; the
identity of the posters was not needed to allow the litigation to proceed, and
relevant information was available from other sources.

s  20. Identity of Internet subscribers/chat room users/message board users-Not
protected

  In the following cases, the courts determined that the applicability of First
Amendment, U.S. Const. Amend. I, protection to the identity of Internet
subscribers, chat room, or message board users was not established or supportable.

  In an action by a biopharmaceutical corporation against an unidentified user of
an Internet service provider’s (ISP’s) message board, alleging that the user, who
was suspected to be an employee of the corporation, breached a confidentiality
agreement and breached the duty of loyalty by revealing confidential and
proprietary information on the message board, held that corporation’s right to
disclosure of the user’s identity outweighed the user’s First Amendment, U.S.
Const. Amend. I, right of anonymous free speech, the court in Immunomedics, Inc.
v. Doe, 342 N.J. Super. 160, 775 A.2d 773, 17 I.E.R. Cas. (BNA) 1347 (App. Div.
2001), held. The court determined that the corporation was entitled to disclosure
of information from the ISP regarding the user’s true identity, despite the user’s
First Amendment right of anonymous free speech, where the corporation presented a
prima facie case that the user was an employee and that the user had breached the
confidentiality agreement signed by the employees, and the strength of that prima
facie case outweighed the user’s free speech right. The court, recognizing that
individuals choosing to harm another or violate an agreement through speech on the
Internet cannot hope to shield their identity and avoid punishment through
invocation of the First Amendment, held that the unidentified user was not
entitled to an opportunity to disprove the corporation’s claims prior to her
identity being disclosed by the ISP.

  Where the recipient of harassing electronic communications from pseudonymous
authors sought to compel an Internet service provider to reveal the identities of
its anonymous subscribers who transmitted the offensive e-mails and instant
messages, the court in Polito v. AOL Time Warner, Inc., 78 Pa. D. & C.4th 328,
2004 WL 3768897 (C.P. 2004), recognizing that the court must strive to achieve an
equitable balance between the anonymous declarant’s First Amendment, U.S. Const.
Amend. I, right to speak anonymously and the plaintiff’s right to obtain relief
for criminal or tortious conduct, held that the plaintiff was entitled to the
relief sought, provided that the Internet service provider first notified the
anonymous subscribers in advance to afford them the opportunity to oppose the
disclosure of their identities, where the recipient established: (1) she had a
prima facie basis for asserting criminal or civil liability against the culpable
authors; (2) the identifying information was relevant to her claims and necessary
to obtain redress; (3) she sought the information in good faith and not for some
improper purpose; and (4) she was unable to obtain the identifying information by
alternative means.

s  21. Web site domain name registration requirement

  The following authority determined, under the facts and circumstances
presented, whether a registration requirement for Web site domain names supported
a Web site operator’s claim of a First Amendment, U.S. Const. Amend. I, violation.

  The facts that an agreement required the provider of Internet domain name
registration services to seek the written approval of the Commerce Department
before making any changes to the root zone file, to add new generic top-level
domains (gTLDs), and that such approval had been denied, did not result in an
unconstitutional prior restraint on protected Internet expression, as a party
could engage in any expressive speech of its choice by simply adding a period and
a three-letter suffix to the speech in question, any restrictions imposed by the
agreement related only to the time, place, or manner of speech, and banning all
new gTLDs regardless of their content furthered the significant government
interest in overseeing the orderly transition to a privatized Domain Name System
(DNS), the Court of Appeals, in Name.Space, Inc. v. Network Solutions, Inc., 202
F.3d 573, 2000-1 Trade Cas. (CCH) P72775 (2d Cir. 2000), held. In so holding, the
court took the view that the existing Internet generic top-level domains (gTLDs)
are not protected speech but only because the current domain name system (DNS)
limits them to three-letter afterthoughts which are lacking in expressive content,
and longer and more contentful gTLDs may constitute protected speech, such as
political speech or parody; the functionality of domain names does not
automatically place them beyond the reach of the First Amendment. The court added,
Internet domain names and generic top-level domains (gTLDs) per se are neither
automatically entitled to nor excluded from the protections of the First
Amendment, and the appropriate inquiry is one that fully addresses particular
circumstances presented with respect to each domain name. In the instant case, the
court found, the three-letter Internet generic top-level domains (gTLDs) did not
constitute compelled speech in violation of the First Amendment, as such gTLDs did
not constitute speech.

s  22. Denial of use of particular Web site domain name

  The following authority determined, under the facts and circumstances
presented, whether denial of use of a particular Web site domain name supported a
Web site operator’s claim of a First Amendment, U.S. Const. Amend. I, violation.

  A disgruntled customer was entitled to $2,000 in damages for deprivation of
First Amendment, U.S. Const. Amend. I, rights resulting from a wrongfully issued
preliminary injunction enjoining his use of an automobile dealership’s name in the
domain name of a Web site created and maintained by the customer to express his
dissatisfaction with the dealership from the bond posted by the dealership, the
district court, in Crown Pontiac, Inc. v. Ballock, 287 F. Supp. 2d 1256 (N.D. Ala.
2003), held. The court also found that the customer was entitled to $4,000 in
mental anguish damages resulting from the wrongfully issued preliminary injunction
from the bond posted by the dealership, based on the dealership’s attorney’s
threats to have the customer jailed or fined for contempt of court for any
violation of the injunction.

s  23. Identity of Web site domain name registrant

  The following authority determined, under the facts and circumstances
presented, whether the applicability of First Amendment, U.S. Const. Amend. I,
protection to the identity of a Web site domain name registrant was established or
supportable.

  The court of appeals, in Peterson v. National Telecommunications and
Information Admin., 478 F.3d 626, 30 A.L.R.6th 671 (4th Cir. 2007), held that the
National Telecommunications and Information Administration (NTIA) rule, which
required disclosure of certain personal information of any individual who
registered an Internet domain on the.us top-level domain, did not threaten a Web
site operator’s ability to protect anonymity in his online speech activities
within a Point-Counter-Point City Web site utilizing the.us top-level domain, and
thus did not cause injury in fact to the operator for purposes of standing on his
First Amendment, U.S. Const. Amend. I, claim, despite the operator’s contention
that he possessed a right to partial anonymity, where, prior to any actions on the
part of the NTIA, the operator publicly identified himself as holding a number of
elected offices in his virtual network, promoted works published under his own
name, disclosed his Illinois state bar membership, identified his hometown, linked
to his former Web site that carried debates published under his own name, and
continued posting personally identifying information after filing his lawsuit. The
court held, furthermore, that the operator could not invoke third-party standing
for bringing an overbreadth challenge under the First Amendment, given that the
rule did not distinctly and palpably injure the Web site operator himself.

s  24. Internet search engine Web site rankings

  The following authority determined whether the applicability of First
Amendment, U.S. Const. Amend. I, protection to Internet search engine Web site
rankings was established or supportable.

  An Internet search engine’s Web site rankings according to relative
significance of their correspondence to search queries were protected by the First
Amendment, U.S. Const. Amend. I, against claim of tortious interference with
contract, as opinions relating to matters of public concern, which did not contain
provably false connotations, held the district court in Search King Inc. v. Google
Technology, Inc., 2003 WL 21464568 (W.D. Okla. 2003) (applying Oklahoma law),
where, although the ranking system involved an objective patented process, the
resulting rank was subjective, dependent on the particular search engine’s unique
method of determining relative significance.

s  25. Use of copyrighted material

  In the following cases, the courts determined whether the applicability of
First Amendment, U.S. Const. Amend. I, protection to the use of copyrighted
materials by a Web site operator or user was established or supportable.

  See Sarl Louis Feraud Intern. v. Viewfinder, Inc., 489 F.3d 474, 35 Media L.
Rep. (BNA) 1879, 83 U.S.P.Q.2d 1105 (2d Cir. 2007), where French clothing
designers, as judgment creditors, brought an action to enforce a French default
judgment against the operator of an Internet Web site on which photographs of the
designers’ products had been posted, in which the court of appeals, reversing the
district court’s dismissal of the action, held that reporting by the Web site did
not have an absolute First Amendment free speech defense to any attempt to
sanction such conduct, since, while the entity’s status as a news publication
could have been highly probative on certain relevant inquiries, such as whether
that entity had a fair use defense to copyright infringement, it did not render
that entity immune from liability under intellectual property laws. The court
concluded that, before deciding whether French copyright judgments were repugnant
to the public policy of New York and thus unenforceable in New York, a
determination had to be made as to the level of First Amendment protection
required by New York public policy when a news entity engaged in unauthorized use
of intellectual property, and then a determination had to be made as to whether
the French intellectual property regime provided comparable protections.

  In Universal City Studios, Inc. v. Corley, 273 F.3d 429, 60 U.S.P.Q.2d 1953 (2d
Cir. 2001), the court of appeals held that an injunction that prevented an
Internet Web site owner from posting a decryption code on its Web site was a
content-neutral restriction on the owners’ speech, under the First Amendment, U.S.
Const. Amend. I, in a lawsuit brought by motion picture studios under the Digital
Millennium Copyright Act (DMCA) 17 U.S.C.A. ss 1201 et seq., where neither the
DMCA nor the posting prohibition was concerned with whatever capacity the
decryption code had for conveying information to a human being; instead, the DMCA
and the posting prohibition were applied to the decryption code solely because of
its capacity to instruct a computer to decrypt a digital versatile disk (DVD)
without any intercession of mind or will of a person. The court held, next, the
injunction, which prevented the Web site owners from providing hyperlinks to other
Web sites that posted the decryption code, did not burden substantially more
speech than necessary to further the government’s interest in preventing
unauthorized access to copyrighted materials, since, although the injunction
prevented the owners from conveying to other persons the speech component of the
decryption code, the owners did not establish that any other technique was
available that would have provided a lesser restriction on the code’s speech
component and yet have barred the owners from making an instantaneous worldwide
distribution of the code. The court continued, the injunction was unrelated to the
suppression of free expression, since, although the hyperlink had a speech
component, the linking prohibition applied whether or not the hyperlink contained
any information, comprehensible to a human being, as to the Internet address of
the Web page accessed. Finally, the Court held, the injunction did not
unconstitutionally eliminate the owners’ fair use of copyrighted materials, as the
owners did not claim to be making fair use of any copyrighted materials and
nothing in the injunction prohibited them from making such fair use, and the
owners failed to establish that the anti-trafficking provisions of the DMCA
prevented other persons from copying portions of DVD movies in order to make fair
use of them.

  Where record companies and music publishers brought a copyright infringement
action against Napster, an Internet service that facilitated the transmission and
retention of digital audio files by its users, the court of appeals, in A&M
Records, Inc. v. Napster, Inc., 239 F.3d 1004, 57 U.S.P.Q.2d 1729 (9th Cir. 2001),
as amended, (Apr. 3, 2001), held that the injunction brought against Napster did
not violate the First Amendment as being broader than necessary. The company had
asserted two distinct free speech rights: (1) its right to publish a “directory”
(here, the search index) and (2) its users’ right to exchange information. The
court found that First Amendment concerns in copyright are allayed by the presence
of the fair use doctrine, and, given the fact that a preliminary determination was
made that Napster users were not fair users, the use of the copyrighted material
was rightfully enjoined.

  The court in Columbia Pictures, Inc. v. Bunnell, 245 F.R.D. 443 (C.D. Cal.
2007), held that a discovery order in a copyright infringement case, which
required Web site operators to reserve and disclose server log data, did not
violate the First Amendment rights of Web site users, where the data being sought
did not identify the users, as the court had ordered that the Internet protocol
addresses of the users be masked, and in any case, to the extent that the users
were engaged in copyright infringement, specifically, the unauthorized copying and
distribution of movies and television programs, they were not entitled to First
Amendment protection. Moreover, to the extent the users were engaged in legal file
sharing, they had no expectation of privacy since they were broadcasting their IP
addresses as part of the file transfer process, the court added.

  In LOS ANGELES TIME and The Washington Post Company and its wholly owned
subsidiary, Washingtonpost, Newsweek Interactive Company, Plaintiffs, v. FREE
REPUBLIC, Electronic Orchard, Jim Robinson, and Does I Through 10, inclusive,
Defendants., 1999 WL 33644483 (C.D. Cal. 1999), where the plaintiffs, the Los
Angeles Times and The Washington Post, brought an action for copyright
infringement against the defendant, a bulletin board Web site whose members use
the site to post news articles to which they add remarks or commentary, alleging
that the unauthorized copying and posting of news articles on the Web site
constituted copyright infringement, the district court, denying the defendants’
summary judgment motion, held that the First Amendment rights of the defendants
were not violated by denying them the ability to infringe on the plaintiffs’
exclusive rights in the copyrighted news articles. The court rejected the
defendants’ argument that, without the ability to post entire articles, visitors
to the site would be prevented from expressing their opinions on media coverage of
current events and polities, as well as their views concerning omissions and
biases evident in the articles. Assuming a standard such as this applies, the
court said, the defendants failed to show that copying entire news articles was
essential to convey the opinions and criticisms of visitors to their site. The
court suggested that visitors’ critiques could be attached to a summary of the
article or the Web site could provide a link to the Times and Post Web sites where
the article could be found. While the defendants and users of the defendants’ Web
site might find these options less ideal than being able to copy entire news
articles verbatim, the court concluded, their speech was in no way restricted by
denying them the ability to infringe on plaintiffs’ exclusive rights in the
copyrighted news articles.

s  26. Use of material in violation of licensing agreement

  The following authority determined whether the applicability of First
Amendment, U.S. Const. Amend. I, protection to the use of materials by a Web site
operator or user in violation of a licensing agreement was established or
supportable.

  The district court, in Gridiron.com, Inc. v. National Football League Player’s
Ass’n, Inc., 106 F. Supp. 2d 1309 (S.D. Fla. 2000), finding that an Internet Web
site operator violated an exclusive licensing agreement between professional
football players’ union and the union’s for-profit subsidiary by licensing
multiple players’ images for appearance on a Web site in connection with a fantasy
football game and to attract third-party advertising; held that the exclusive
licensing agreement between the players’ union and the union’s for-profit
subsidiary did not violate the free speech rights of the Internet Web site
operator.

s  27. Union affairs or other employee activities

  The following authority determined, under the facts and circumstances
presented, whether First Amendment, U.S. Const. Amend. I, protection applied to a
Web site operator’s or user’s speech concerning union affairs or other employee
activities.

  A police department rule prohibiting conduct that impaired the operation of the
department or interfered with its efficiency and/or the ability of the supervisors
to maintain discipline could not, consistent with the First Amendment U.S. Const.
Amend. I, serve as a basis for reprimanding the officer for speech, on a Web site
concerning union affairs which he maintained, which concerned racial comments made
by the chief of police, conflicts of interest within the police department, and
the general operation and management of the police department, where the officer’s
interest in speaking about matters of public concern combined with the public’s
interest in receiving information about suspect practices on the police force
outweighed the police department’s interest in effective functioning, and there
was no evidence that the speech caused a disruption in the department or
interfered with the course of daily police work, the court in Shelton Police
Union, Inc. v. Voccola, 125 F. Supp. 2d 604 (D. Conn. 2001), held. The court
concluded that the First Amendment prohibited discipline of the police officer for
violation of the department rule prohibiting knowingly making false public
statements where there was no proof that the officer made the statements knowing
they were false or with reckless disregard for their falsity.

s  28. Sexually explicit Web site

  The following authority considered whether and to what extent First Amendment
(U.S. Const. Amend. I) protection extended to a Web site operator or user in
connection with a sexually explicit Web site.

  In Dible v. City of Chandler, 502 F.3d 1040, 26 I.E.R. Cas. (BNA) 838, 154 Lab.
Cas. (CCH) P60479 (9th Cir. 2007), the court affirmed the dismissal of a police
officer for maintaining a sexually explicit personal Web site featuring himself
and his wife, concluding that the officer’s Web site was not an expression of
speech on a “matter of public concern” as required for First Amendment protection
of speech related to his employment, where the officer’s sexual activities on the
Web site were simply vulgar and indecent and did not give the public any
information about the operations, mission, or function of the police department.
In addition, the court examined the First Amendment protection of the Web site as
speech unrelated to the officer’s employment, again upholding the officer’s
dismissal and concluding that the municipality’s interest in maintaining the
effective and efficient operation of the police department outweighed the police
officer’s interest in maintaining the Web site, where the officer’s activities
were detrimental to the mission and functions of the department by undermining the
respect and public confidence in the unique and sensitive position of the
department requiring constant interactions with the public, and the officer
admitted that he was not interested in conveying any message, but was engaged in
the indecent activity solely for profit.

s  29. General financial advice

  The following authority determined, under the facts and circumstances
presented, whether the applicability of First Amendment, U.S. Const. Amend. I,
protection to general financial advice by a Web site operator or user was
established or supportable.

  Imposition of a commodity trading advisor registration requirement, under the
Commodity Exchange Act (CEA), on publishers, on Internet Web sites, and in various
print media, of general commodity trading information strategy and advice and
trading systems, who occasionally made general buy-and-sell recommendations not
tailored to any specific individuals and never had contact with individual
investors, was a prior restraint on their speech violating the First Amendment,
the district court, in Taucher v. Born, 53 F. Supp. 2d 464, 27 Media L. Rep. (BNA)
2217, Comm. Fut. L. Rep. (CCH) P27677 (D.D.C. 1999), cause summarily dismissed,
Comm. Fut. L. Rep. (CCH) P27941, Comm. Fut. L. Rep. (CCH) P27988, 2000 WL 516081
(D.C. Cir. 2000), held.

s  30. Health Information-Diet and nutrition information

  The following authority determined whether the applicability of First
Amendment, U.S. Const. Amend. I, protection to health or diet claims by a Web site
operator or user was established or supportable.

  The district court, in Gorran v. Atkins Nutritionals, Inc., 464 F. Supp. 2d 315
(S.D. N.Y. 2006), held, under Florida law, a Web site that contained both
commercial speech about diet products and noncommercial speech about a high-fat,
high-protein diet was entitled to full First Amendment, U.S. Const. Amend. I,
protection with respect to a negligent misrepresentation claim that concentrated
solely on the site’s noncommercial advocacy of the diet as safe so long as the
dieters restricted their carbohydrate intake.

s  31. Health Information-Reproductive health; abortion

  The following authority considered whether content on a Web site providing
information regarding abortion and other reproductive health issues was protected
speech under the First Amendment, U.S. Const. Amend. I.

  The court in Bernardo v. Planned Parenthood Federation of America, 115 Cal.
App. 4th 322, 9 Cal. Rptr. 3d 197 (4th Dist. 2004), held that challenged content
on a Web site offering health information regarding abortion amounted to protected
noncommercial speech under the First Amendment, U.S. Const. Amend. I, thus
defeating the plaintiff’s suit for injunctive relief against a charitable
organization and its affiliated health centers that provided abortion services
alleging that statement concerning the central disputed issue of whether induced
abortion causes breast cancer. The plaintiffs failed to show, the court
determined, that the statements on the Web site constituted representations of
fact of a commercial nature, as opposed to mere opinions about a matter of genuine
scientific debate. Moreover, the challenged pages from the Web site did not
propose a commercial transaction, but instead, asserted the organization’s
positions on disputed scientific and medical issues of public interest, and any
economic motive the organization may have had in publishing this information was
insufficient, by itself, to turn the statements into commercial speech.

s  32. Attorney misrepresentations

  The following authority determined, under the facts and circumstances
presented, whether discipline by the state bar of an attorney for
misrepresentations on a Web site as to his qualifications supported a claim of a
First Amendment, U.S. Const. Amend. I, violation.

  The court in North Carolina State Bar v. Culbertson, 177 N.C. App. 89, 627
S.E.2d 644 (2006), appeal dismissed, review denied, 633 S.E.2d 819 (N.C. 2006),
held, in a proceeding upon a complaint by the state bar, that disciplining an
attorney for making misleading communications, on, inter alia, his law office’s
Web site, representing that the attorney had been published in a series of reports
of decisions of the federal courts of appeals, did not violate the attorney’s
First Amendment, U.S. Const. Amend. I, free speech rights.

RESEARCH REFERENCES

West’s Key Number Digest

West’s Key Number Digest, Constitutional Law k  855, 859, 977, 978, 1490, 1504,
1545, 1557, 1559 to 1561, 1581, 1681, 1825, 1827, 1830, 2149 to 2152

West’s Key Number Digest, Copyrights and Intellectual Property k  85, 107

West’s Key Number Digest, Federal Civil Procedure k  2491.5

West’s Key Number Digest, Fraud k  13(3)

West’s Key Number Digest, Injunction k  138.75, 186(3)

West’s Key Number Digest, Internal Revenue k  4441, 4446

West’s Key Number Digest, Racketeer Influenced and Corrupt Organizations k  7

West’s Key Number Digest, Telecommunications k  1314, 1331, 1338, 1340, 1346

West’s Key Number Digest, United States k  50.10(3)

West’s Key Number Digest, War and National Emergency k  50

Westlaw Databases

  Andrews Computer and Internet Litigation Reporter Court Documents
(ANCOMPILR-DOC)

  Briefs Multibase (BRIEF-ALL)

  Cyberlaw: Intellectual Property in the Digital Millennium (CIPDM)

  Treatise on Constitutional Law; Substance and Procedure (CONLAW)

  Doing Business on the Internet: Forms and Analysis (DOBUSNET)

  Domain Names-Global Practice and Procedure (DOMAIN-GPP)

  Education Law: First Amendment, Due Process and Discrimination (EDULAW)

  Smolla & Nimmer on Freedom of Speech (FREESPEECH)

  Internet Marketing Law Handbook (IML-HBK)

  Internet Law and Practice (INTERNET)

  Trial Motions (MOTIONS)

  Trial Pleadings (PLEADINGS)

  Police Misconduct: Law and Litigation (POLICEMISC)

  Section 1983 Litigation in State Courts (S1983LITIG)

  Section 1983 Liti…