------------------------------ Date: Thu, 28 Feb 91 09:53:50 EST From: "Brian J. Peretti" Subject: Computer Publication and the First Amendment ******************************************************************** *** CuD #3.09: File 2 of 2: Computers & First Amendment *** ******************************************************************** Computer Publication and The First Amendment Copyright Brian J. Peretti Computers and the Law Since their introduction, personal computers have had a tremendous impact on society. Computer, printers and their software have replaced accountants, secretaries and even typewriters in many offices across the United States. With the advent of this new way to gather, process and distribute information, new problems, many that could never have been perceived by the Framers of the Constitution, have developed. The Constitution is the basis of law in the United States. Although created in 1787, it still governs the manner in which legal decisions are made with very few changes. It, along with the Bill of Rights and other amendments, has established what may or may not be done to a person, group, organization or business without infringing on its rights. The broad language was created so that the Constitution would be able to change and expand with the times. Although the founding fathers did have an idea of what the press was in their day, it has been expanded to cover television and radio. This coverage should be expanded to encompass the new media of computer publications. By deciding that computer publications will have the same rights under the first amendment as newspapers, information will be dispersed throughout the nation in a more efficient manner so that the goal of the first amendment will become reality. I. What is a computer publication Computer publications can take many forms. It has been argued that bulletin boards should be considered computer publications. The reason is that since the people who are in contact with the bulletin boards must communicate with the boards through the written word, that these communications should thus be considered publications. This paper is concerned with publications that are created exclusively on a computer or computer system. There have been only a few such computer publications.1 There has not been a definition defining what is a computer publication. However, there are many similarities between the various newsletters that will give us a definition of what one is. First, all of the material which makes up the publication must have been created on a computer. This is to say, that although the information may have been written on paper as rough drafts or may have been gleaned from printed books or newspaper, the articles that compose the publication must have been written IN FINAL FORM ON THE COMPUTER. The production of the newsletter must also occur exclusively on the computer. This includes the editing, the check for spelling and formatting errors and the actual production of what the newsletter will look like, including the letterhead of the publication, if there is to be one. The transportation of the material that is to be contained in the newsletter must occur via a computer network2 or by an exchange of magnetic disk3, magnetic tape4, electrical impulses or other non-print media. This includes not only the gathering of the stories, but also the distribution of the newsletter to its subscribers. The computer magazines or newsletters that have existed in the past also had a common denominator in that they almost exclusively were published by computer users, for computer users and concerned computer topics. Although this could be a criteria, it would be to restrictive. It is very likely, with the continued proliferation of computers in our society, that publications with a much different orientations will emerge. If computer publications are to be protected, the topic of their publication should not be determinative of whether they fall under the definition of a computer publication. There are other publications that address the same issues that have been published in "Phrack". An example is 2600 on Long Island, New York which publishes material in printed form concerning generally the same information.5 However, it is the form in which "Phrack" was published and not the content of the magazine that is the issue of this paper. II. Phrack6 Craig Neidorf is a student at the University of Missouri. At sixteen, he and a friend started to publish Phrack7. The way in which he went about creating his newsletter was to accept articles written by persons throughout the country. These articles would be left in his mailbox at the university or to retrieve articles written on computer bulletin boards. After he logged on to the system, he would then mail the articles from the mainframe computer to his person computer at his residence. If these articles would need to be edited, he would then do any necessary editing. Once he complied a large enough group of articles, he would then send the articles to the mainframe computer along with a heading and send it to his 250 subscribers. There was no charge for the newsletter.8 III. The Historic Rights of the Press In order to discover whether or not the protections afforded to the press in the first amendment should be extended to this new form of information distribution, a look to the past is essential. Originally, control of the press by government was total. However, as time passed, both the monarch of Great Britain and their rulers in the American Colonies allowed greater freedom to publish. A. The English Experience. At first, England was an absolute monarchy, in which the king could do as he pleased. In 1215, the Magna Carta was signed, whereby the lords of England put restrictions on the King, which he pledged not to violate.9 The document, although not seen as an admission of the King that there were civil right, he did acknowledge that there were some basic human rights.10 In 1275, the De Scandalis Magnatum was enacted which punished anyone who disseminated untrue information or "tales" that could disrupt the atmosphere between the king and his people.11 Over time this statute was gradually expanded. In 1378, it was broadened to cover "peers, prelates, justices and various other officials and in the 1388 reenactment, offenders could be punished "by the advice of said council."12 The first printing presses were established in Great Britain toward the end of the 15th century. When the De Scandalis Magnatum was reenacted in 1554 and 1559, "seditious words" were included as words that could bring punishment.13 This law, enforced by the Court of the Star Chamber, was a criminal statute to punish political scandal.14 Regulations placed upon printers soon followed. In 1585, the Star Chamber required that in order to print a book, the publisher would have to get a license.15 A monopoly was created in the Stationers' Company, which had 97 London stationers, that could seize the publications of all outsiders.16 A 1637 ordnance limited the number of printers, presses and apprentices.17 Punishment, at the time, was not limited to just printing, but also to "epigram[s] or rhyme[s] in writing sung and repeated in the presence of others . . . [or] an ignominious or shameful painting or sign."18 Although the Star Chamber had been abolished in 1641, the licensing system remained through the orders of 1642 and 1643.19 The Licensing Act of 1662 was a temporary statute which kept the licensing provisions until 1679, when it expired.20 During the reign of James II, licensing was renewed only to expire and not be reenacted in 1695.21 Having realized that licensing was not the answer, Queen Anne in 1711 enacted a Stamp Act, by which a duty was imposed on all newspapers and advertisements.22 The purpose was to both restrain the press and destroy all but the larger newspapers.23 Blackstone summed up the state of the law Great Britain concerning the press in his Commentaries by writing: The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.24 B. The Colonial Experience The first presses arrived at Harvard University in 1638 and were used to disseminate church information.25 Aside from this purpose the colonial governments, when still under the power of Great Britain did not look favorably upon the press. However, with power in the colony moving toward the people, the press gained more freedom from the strict control imposed by the government. Each colony treated the press differently, although each did restrict the press. In 1671, Governor Berkeley of Virginia wrote "But I thank God, there are no free schools nor printing, and I hope we shall not have these hundred years; for learning has brought disobedience, and heresy, and sects into the world, and printing has divulged them, and libels against the best government. God keep us from both!"26 In New York, until 1719, all governors "had been instructed to permit no press, book, pamphlets or other printed matter `without your especial leave & license first obtained.'"27 Gradually, state controls of the press gradually diminished.28 The Trial of John Peter Zenger, 17 Howell's St. Tr. 675 (1735) illustrates how much the colonists were opposed to restrictions on the press. Zenger had printed material in his New York Weekly Journal a satiric article critical of New York Governor William Cosby. The governor had Zenger charged with seditious liable by the Attorney General after neither a Grand Jury would indict nor the General Assembly take action.29 Although all the jury had to do was find him guilty was to declare that he published the paper, Zenger's attorney, Andrew Hamilton of Philadelphia argued a much larger issue. He put before the jury the argument that truth is a defense to liable, although the court rejected it.30 He was able to win an acquittal of Zenger by requesting that the jury give a general verdict of not guilty instead of a special verdict, which the court requested, and which the jury did.31 C. The Adoption of the First Amendment "The struggle for the freedom of the press was primarily directed against the power of the licensor. . . . And the liberty of the press became initially a right to publish `without a license what formerly could be published only with one.' While this freedom from previous restraint upon publication cannot be regarded as exhausting the guaranty of liberty, the prevention of that restraint was a leading purpose in the adoption of the constitutional provision."32 The purpose of the first amendment is "to prevent all such previous restraints upon publication as had been practiced by other government."33 The first amendment states "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."34 It was originally proposed as part of twelve amendments to the United States Constitution during the first session of Congress in 1789. On December 15, 1791, the Bill of Rights, minus the first two amendments, became part of the Constitution. What the first amendment means as applied to the press has never been completely set forth. The only statement in Congress as to what the press and speech clause was to stand for was express by James Madison: "The right of freedom of speech is secured; the liberty of the press is expressly declared to be beyond the reach of this government."35 This, however, will be of little help for us when considering whether computer publications should receive first amendment protections. IV. Does Computer Publications fall within the meaning of Press as stated in the first Amendment. Since the legislative history of the First Amendment will not lead to a discovery concerning what is covered under it, we must look to how it has been interpreted by the courts. An examination must be undertook to determine what the courts have decided concerning both the purpose of the amendment and whether any physical manifestation guidelines on what fall within the definition of the "press". By examining what the drafters of the first amendment thought that press was during their time, the only media which would receive first amendment protections the printed press, which would include newspapers, handbills and leaflets. However, the court has not held the clause so narrowly. The United States Supreme Court has taken a broad view in considering what is the "press".36 "The liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. . . . The press in its historical connotation comprehends every sort of publication which affords a vehicle of information and opinion."37 Thus, the Court has ruled that motion pictures38 also deserve such protection. Lower courts have held that the protection applies to doctor directories,39 college newspapers40 and computer bulletin boards.41 Computer publications satisfy the definition that the Court has given to what is to be covered by the first amendment. By their very nature, computer publications are a vehicle by which information can be disseminated. In Phrack's first issue, the purpose was to gather "philes [which] may include articles on telcom (phreaking/hacking), anarchy (guns and death & destruction) or kracking. Other (sic) topics will be allowed also to a certain extent."42 These articles were to be distributed to members of the community who wished to obtain information on the topics in the "newsletter-type project".43 Since this publication passes the Lovell test,44 because of it allows information to be distributed, these publication deserve the protection given to the media by the first amendment.45 VI. Freedom of Newspapers and Broadcasting Media46 Currently there can be called two separate first amendment doctrines. The first applies to newspapers. Newspapers can have only a few restrictions placed on them. The second applies to radio and television, which can have many types of controls placed upon them. Computer publications, because of their similarity to the former, should have the least amount of restriction necessary placed upon them. As stated, supra, the first amendment had no legislative history that came along with it. Courts have had to interpret how it should be applied to the "press" since they had no guidance from the Congress. Although not to be applied in an absolute sense, Breard v. City of Alexandria, La.,47 the Supreme Court has only set forth three exceptions where prior restraint of the newspapers are allowed. These restrictions, as stated in dictum in Near v. Minnesota48 are 1) when it is necessary in order that "a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops", 2) the requirements of decency to prevent publication of obscene materials, and 3) "[t]he security of the community life may be protected against incitement to acts of violence and the overthrow of force of orderly government." These exceptions, although not having the force of law when stated, have been the only exceptions allowed. In the electronic realm, the Supreme Court has allowed greater restraints to be placed on radio and television. Licenses, although never allowed on newspapers,49 possibly as a result of the English experience,50 have been allowed on broadcast communication.51 Broadcaster must be fair to all sides of an issue,52 whereas newspapers may be bias.53 Broadcaster are required to meet the need of their community.54 However no court has held that this may be applied to a newspaper.55 The main difference between these two groups is that "[u]nlike other modes of expression, radio inherently is not available to all. That is its unique characteristic, and that is why, unlike other modes of expression, it is subject to government regulation."56 This reasoning has been followed by the court on many occasions.57 In the case concerning computer publishers, the less restrictive newspaper limitations should be used. A computer publisher does not send his information over a limited band or airwaves. Any individual or group can become a computer publish by obtaining a computer or access to a computer and a modem an information to publish. The amount of these newsletters are not limited by technology. Because of the large number of publications that can appear, there is no need to require that these publications be responsive to the public. The dissemination of the information can be terminated if the reader wants to by asking for his name to be removed from the subscription list, similar to that of a magazine or newspaper.58 V. Conclusion Computer based publications are a new development in the traditional way in which information is disseminated. The history of the United States and the first amendment has been against placing restrictions on the press. These new types of publications, because of their similarity to other types of media, should be granted first amendment protection. The rational for placing restrictions on radio and television should not apply to computer publications. Anyone who has access to this technology, which is becoming more prevalent in society, can publish in this manner. The least amount of restrictions on their publication, similar to those placed on newspapers, should be applied to this new media. BIBLIOGRAPHY Freedom of Speech and Press in America, Edward G. Hudon (Public Affairs Press, Washington, D.C. 1963) MacMillan Dictionary of Personal Computing & Communications Dennis Longley and Michael Shain, eds. (MacMillan Press Ltd, London 1986) Shaping the First Amendment: The Development of Free Expression, John D. Stevens (Sage Publications, Beverly Hills, 1982) Freedom of Speech and Press in Early American History: Legacy of Suppression, Leonard W. Levy (Harvard Press, Cambridge 1960) American Broadcasting and the First Amendment, Lucas A. Powe, Jr. (University of California Press, Berkeley 1987) Printers and Press Freedom: The Ideology of Early American Journalism, Jeffery A. Smith (Oxford University Press, New York 1988). Seven Dirty Words and Six Other Stories: Controlling the Content of Print and Broadcast, Matthew L. Spitzer (Yale University Press, New Haven 1986). Emergence of a Free Press, Leonard W. Levy (Oxford University Press, New York 1985). Computer Underground Digest, volume 2, Issue #2.12, file 1 (November 17, 1990). Endnotes 1. Phrack, see infra, CCCAN, a Canadian publication, The LEGION OF DOOM TECHNICAL JOURNAL, COMPUTER UNDERGROUND DIGEST AND VIRUS-L DIGEST ARE A FEW OF THE MANY PUBLICATIONS. 2. MacMillan Dictionary of Personal Computing & Communication (1986 ed) defines it as: "A network of computer systems that allow the fast and easy flow of data between the systems and users of the system." Id. at 68. 3. "[A] flat disk with a magnetizable surface layer on which data can be stored by magnetic recording." Id. at 215 4. "A plastic tape having a magnetic surface for storing data in a code of magnetized spots." Webster's NewWorld Dictionary of Computer Terms (1988 3 ed.) at 223. 5. Frenzy over Phrack; First Amendment concerns raised in computer hacker case, Communications Daily, June 29, 1990, at 6. 6. Information from this section was gathered in part from Dorothy Denning's paper The United States vs. Craig Neidorf: A Viewpoint on Electronic Publishing, Constitutional Rights, and Hacking." [hereinafter Denning] and Interview with Craig Neidorf, editor of Phrack (Oct. 16, 1990). 7. The name of the publication was derived from two words, phrack (telecommunication systems) and hack (from computer hacking). Denning. Hacking has been defined as "one who gains unauthorized, use non-fraudulent access to another's computer system." Webster's II New Riverside University Dictionary (1984) at 557. For other definitions, see United States v. Riggs, 739 F. Supp. 414, 423-24 (N.D. Ill. 1990). 8. Mr. Neidorf was indicted after he published a Bell South E911 document which was downloaded from the Bell South computer system in Atlanta, Georgia. Determining if Mr. Neidorf should be punished for publishing such information is beyond the scope of this paper. 9. John Stevens, Shaping the First Amendment: The Development of Free Expression at 27 (1982). [hereinafter Stevens] 10. Id. 11. Edward Hudon, Freedom of Speech and Press in America, 8-9 (1963). 12. Id. at 9. 13. Id. 14. Id. 15. Id. at 10. 16. Id. 17. Id. 18. Id. 19. Id. at 11. 20. Id. 21. Id. 22. Id. 23. Id. 24. Leonard Levy, Freedom of Speech and Press in Early American History: Legacy of Suppression, 14 (1963) [hereinafter Levy] citing Sir William Blackstone, Commentaries on the Laws of England 2:112-113 (1936). 25. Stevens, at 29. 26. Levy, at 21-22, quoting William Waller Hening, The Statutes at Large Being a Collection of All the Laws of Virginia (1619-1792) (Richmond, 1809-1823), 2:517. [emphasis in original] 27. Levy, at 24, quoting "Instructions to Governor Dongan," 1686, in E.B. O'Callaghan and B. Fernow, eds., Documents Relative to the Colonial History of the State of New York 3:375 (Albany, 1856-1887). 28. By 1721, Massachusetts effectively ended censorship by licensing. Levy, at 36. 29. Edward Hudson, Freedom of Speech and Press in America (1963) 19. 30. John D. Stevens, Shaping the First Amendment: The Development of Free Expression (1982), 31. 31. Hudson, at 19. 32. Lovell v. City of Griffen, Ga., 303 U.S. 444, 451-52 (1938) [footnotes omitted]. 33. Patterson v. Colorado, 205 U.S. 454, 462 (1907), quoting Commonwealth v. Blanding, 3 Pick. [Mass.] 304, 313-14. [emphasis in original] 34. U.S. Const. amend. I. 35. Leonard W. Levy, Freedom of Speech and Press in Early American History: Legacy of Suppression (1960), quoting The Debates and Proceedings in the Congress of the United States (Washington, 1834 ff.) I:766, 1st Cong., 1st Sess. 36. "The Protection of the First Amendment, mirrored in the Fourteenth, is not limited to the Blackstonian idea that freedom of the press means only freedom from restraint prior to publication." Chaplinsky v. New Hampshire, 315 U.S. 572, n.3, (1941) citing Near v. Minnesota, 283 U.S. 697 (1931). 37. Lovell v. City of Griffin, Ga. 303 U.S. 444, 452 (1938). 38. "We have no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment." 334 U.S. 131, 166 (1948). "Expression by means of motion pictures in included within the free speech and speech and free press guaranty of the First and Fourteenth Amendments." Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952). 39. "The propose directory [of physicians] contains information of interest to people who need physicians. The directory, therefore, is embraced by the term "press" as used in the first amendment." Health Systems Agency of Northern Virginia v. Virginia State Board of Medicine, 424 F. Supp. 267, 272 (E.D. Va. 1976). 40. "A campus newspaper is part of the "press" for the purpose of the First Amendment to the Constitution of the United States." Arrington v. Taylor, 380 F.Supp. 1348, 1365 (M.D.N.C. 1974). 41. Legi-Tech v. Keiper, 766 F.2d 728, 734-35 (2d Cir. 1985). 42. Phrack, volume 1, issue 1, phile 1, reprinted in Computer Underground Digest, volume 2, Issue #2.12, file 1 (November 17, 1990). 43. Id. 44. See, infra, note 35 and text. 45. This is not to say that publication of information in furtherance of a crime or criminal activity should receive the protection of the first amendment. 46. This section has been completed with the help of Spitzer, Seven Dirty Words and Six Other Stories (1986). 47. 341 U.S. 622, 642 (1951), "The First and Fourteenth Amendments have never been treated as absolutes." 48. 283 U.S. 697, 716. 49. Near v. Minnesota, 283 U.S. 697 (1931), New York Times Co. v. Sullivan, 403 U.S. 713 (1971), Minneapolis Star and Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983). 50. See, supra, notes 9 through 24 and text. 51. Communications Act of 1934. 47 U.S.C.  301 et. seq. (1988) (Requiring that radio stations and television stations obtain licenses). 52. Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367 (1969). 53. See, e.g., Evans v. American Federation of Television and Radio Artists, 354 F.Supp 823, 838 (S.D.N.Y. 1973), rev'd on other grounds, 496 F.2d 305 (2nd Cir. 1974), cert. denied, 419 U.S. 1093. ("In editorial comment, the New York Times and the Washington Post may be unreservedly liberal, while the Indianapolis News or the Manchester Union Leader may be unremittingly conservative.") 54. 47 U.S.C.  309(a). Trinity Methodist Church v. Federal Radio Commission, 62 F.2d 850, (D.C. Cir. 1932), cert. denied, 288 U.S. 599 (1933). (holding that if radio broadcasts were not in the public interest, a license could be revoked and not violate the first amendment.) 55. Of course, if a newspaper is not responsive to its readers, it may lose subscribers and either be forced to change or go out of business. However, since in that hypothetical there would be no state action, there would be no first amendment issue. 56. National Broadcasting Co. v. United States, 319 U.S. 190, 226 (1943). The dissenting opinion also followed similar reasoning. "Owing to its physical characteristics radio, unlike the other methods of conveying information, must be regulated and rationed by the government." Id. at 319. 57. Red Lion Broadcasting v. Federal Communication Commission, 395 U.S. 367 (1969), and Federal Communication Commission v. League of Women Voters, 468 U.S. 364 (1984). 58. For the same reason, the fairness doctrine should not be applied to these types of publications. ******************************************************************** ------------------------------ **END OF CuD #3.09** ********************************************************************