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Date: Thu, 28 Feb 91 09:53:50 EST
From: "Brian J. Peretti" <
[email protected]>
Subject: Computer Publication and the First Amendment
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*** CuD #3.09: File 2 of 2: Computers & First Amendment ***
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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.
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