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Issue 102, Summer 2006

The First Amendment Online, in Congress and the Counrts

 In Apple v. Does, a California state appeals court upheld the rights of online journalists (or “bloggers”)to protect their confidential sources. Apple Computer sued several “John Does” for allegedly leaking information about new products. Online journalists sought court protection for their sources, arguing that they are a vital means of bringing issues of public interest to light – and furthermore, that it would be damaging to differentiate between online and print journalists. The court held that online journalists are entitled to the same protection for confidential sources as print journalists, saying, “Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment.”

More than 30 cases have been filed challenging the National Security Agency’s surveillance program, which was disclosed by the New York Times last December. In response, the government has invoked the “state secrets privilege” to argue for dismissal of the cases. One class action filed by the Electronic Frontier Foundation (eff.org) against AT&T in California recently survived the government’s challenge, while a similar case in Chicago did not. The California case is supported by testimony from a veteran AT&T technician alleging that, in addition to wiretapping phone calls, the NSA conducts broad surveillance of Americans’ Internet and email use. The Bush administration has invoked state secrets more often than any other administration since the privilege was established in 1953.

The Supreme Court recently refused to hear an appeal in the drawn-out legal battle between Yahoo and two French groups, the Union of Jewish Students in France (UEJF) and the League Against Racism and Anti-Semitism (LICRA), over Nazi memorabilia. A French court had ruled in 2000 that Yahoo would be subject to a $15 million fine if the company refused to remove the material from its online auction site. Yahoo partially complied with the decision, but then sued in the U.S. seeking a declaration that the French ruling is unenforceable here on First Amendment grounds. And the conflict dragged on: the French groups filed an appeal and won dismissal of Yahoo’s case from a fractured appeals court. The Supreme Court’s refusal to hear the case leaves open many questions about the enforceability of foreign law to US companies doing business on the Internet.

Targeting online social networks popular among American youth (MySpace.com has over 95 million registered users), Rep. Michael Fitzpatrick (R-PA) has introduced the Deleting Online Predators Act (DOPA). The legislation would bar access from all library and school computers to any site that “allows users to create web pages or profiles to provide information about themselves … and offers a mechanism for communication” – quite a broad category, which arguably includes many sites with educational merits. Visit pair.ncac.org/dopa for more about the bill, its anticipated consequences, and a sober assessment of the risks to children posed by online communities.