Constitutional Law in Cyberspace Tutorial, Mike Godwin

by Brett Burney

Mr. Godwin presented an excellent overview of the current caselaw of how the United States Constitution applies to Cyberspace. Apparently drawing from his recent book, Cyber Rights: Defending Free Speech in the Digital Age, Mr. Godwin provided some very useful slides that outlined the Fourteenth Amendment, the First Amendment, the Fourth Amendment, and lastly the Fifth Amendment. The only regret of the session is that Mr. Godwin only got about halfway through his presentation.

For each Amendment, Mr. Godwin presented the established caselaw in the "physical" world, moved on to any recent caselaw that specifically targeted the Internet, and then explained the particular problems that existed between the two. After establishing the Fourteenth Amendment and the "incorporation" clause, there were several issues involved with the discussion of the First Amendment - the subject of most of Mr. Godwin's presentation. "Freedom of Speech" began with Schenck v. U.S. (1919), moved on to Whitney v. California (1927), and ended with the "fighting words" standard and U.S. v. Jake Baker (1995). "Freedom of the Press" began with Prior Restraint, with the established caselaw of Near v. Minnesota (1931) and New York Times Co. v. U.S. (otherwise known as the Pentagon Papers case, 1971). The next "Freedom of the Press" subject was "Libel," which involved the established caselaw of New York Times Co. v. Sullivan (1964) and the recent caselaw of Cubby v. Compuserve (1991) and Stratton Oakmont v. Prodigy (1994). The last two cases involved some very interesting dichotomies that Mr. Godwin pointed out. In the Cubby case, Compuserve prevailed mainly because they - as the ISP - put themselves forward as something of a bookstore. The owner or operator of a bookstore is not expected to read everything in the store, and therefore should not be held liable for any content. Compuserve put forward the same argument stating that they should not be responsible for any content found on servers that they operate. However, in the Prodigy case, that ISP chose to put themselves forward as a phone company. Prodigy argued that they were not responsible for content that is provided on their servers, just like a phone company cannot be held liable for a libelous conversation that occurred through the wires that they operate.

Lastly, Mr. Godwin explained the standards for "obscenity" and "child pornography." Mr. Godwin pointed out that there is no legal definition for "pornography" per se, current law only defines "obscenity" - especially through Miller v. California (1973) with the famous three-part test. There is, however, a standard legal definition for "child pornography." The problem with these differing definitions was borne out with the Communications Decency Act and the Child Online Protection Act (COPA). COPA attempted to ban child pornography on the Internet using an "indecent" standard which was not an established standard for either obscenity or child pornography. The result was that COPA was struck down by the United States Supreme Court as being un-constitutional.

Overall, Mr. Godwin was extremely knowledgeable of his subject area and was able to answer questions thoroughly. Mr. Godwin has an amazing memory and flawlessly repeated the facts of applicable cases and related information. The presentation was enjoyable and was a good preview for reading Mr. Godwin's book.