It has to do with distinguishing between protected freedom of speech and speech that is not protected. Most of the new laws passed by states require that, for online communications to be considered “stalking,” they must constitute harassment of a person that places the person in reasonable fear for his or her safety. Courts have upheld stalking legislation that deals with threats because the First Amendment does not protect true threats. But some of the measures go beyond punishing true threats and proscribe “annoying” speech.

Because virtual child pornography does not involve the actual physical abuse of children. In its 1982 decision New York v. Ferber, the U.S. Supreme Court first ruled that child pornography was a category of expression that did not receive First Amendment protection. Previously, child pornography would have to be classified as obscenity in order to lose First Amendment protection. The Court in Ferber based its decision in large part on the actual abuse suffered by children in the making of the materials.

The issue is that with virtual child pornography, no actual child is physically abused. In Ashcroft v. Free Speech Coalition, the U.S. Supreme Court struck down two parts of a federal law, the Child Pornography Prevention Act of 1996, that targeted virtual child pornography. The Court wrote: "In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production."

It’s generally not a good idea to take someone else’s graphic, logo, photo or other image and post it online without permission. The principle of fair use provides some leeway, for example in posting images that have themselves become the crux of a news story — for instance, a Newsweek cover some years ago showing O.J. Simpson’s face tones altered to make him appear darker. The controversy that ensued had the effect of placing that image in the public arena.

Some Web sites seeking to direct users to images elsewhere simply link to those pages, rather than pirating the images.

In Kelly v. Arriba Software Corp., a 2002 case, the 9th U.S. Circuit Court of Appeals held that when copyrighted images are used on a Web site, a prima facie case of copyright infringement is made. However, the infringement charge can be rebutted if the way in which the images are used complies with the doctrine of fair use. In Kelly v. Arriba, an operator of a search engine used "thumbnail" pictures of the plaintiff's copyrighted images in search-result displays. The owner of the images brought suit for copyright infringement, and although the search-engine site displayed the thumbnails for commercial purposes, its use of them was so different from the function of the original images that the court said the thumbnails "did not supplant the need for the originals." Therefore, the thumbnails were a fair use. However, the court also found that the additional inclusion of the copyright owner's full-sized images on the search site "infringed [the copyright owner's] right to publicly display his works," and therefore was not a fair use.

If you use it properly, yes. Logos and other trademarked images can be used to create a parody, but you must be careful not to run afoul of trademark and copyright laws. If a logo is used for a parody, you must use only enough of the original to bring the original to the mind of the audience. Also, to avoid confusion, it must be used in a way that makes it clear it is parody and that it is not in any way associated with the actual company. In addition, the courts have been much more lenient toward parodies in which the main intent is expressive speech, not commercial gain.

Yes. In 1998, Congress passed the Digital Millennium Copyright Act, which modified Title 17 of the United States Code (the copyright section) to include provisions that apply to the Internet and cyberspace. The act affects many of the provisions, updating them and making them applicable for the 21st century. However, Critics of the case have contended that the Digital Millennium Copyright Act stifles legitimate computer research, and the law has been challenged by several lawsuits arguing that programmers and others should have free-speech protections to explore weaknesses in programs and share their research.

Gripe sites are Web sites providing consumer commentary criticizing the business practices of certain companies. Many cybergriper sites contain parodies of their corporate targets. For example, a consumer who believes that “Business X” engages in unfair business practices might establish a Web site with the domain name “BusinessXsucks.com.”

Local community standards are difficult to apply on the global medium of the Internet because Web publishers cannot limit access to their sites based on the geographic location of Internet users. For this reason several U.S. Supreme Court justices expressed their discomfort with applying local standards in determining what material is harmful to minors under the now-defunct Child Online Protection Act (COPA) in Ashcroft v. ACLU (2002).

Justice Sandra Day O’Connor, for example, advocated the adoption of a “national standard for regulation for obscenity of the Internet.” Justice Stephen Breyer reasoned that COPA should be read to include a national standard. Other justices expressed concern about the notion of local community standards, as well.

The answer depends on several factors, including whether the gripe site is engaged in commercial use of the target’s trademarked business name, or whether the gripe site owner has a bad-faith intent to profit from his or her site.

Businesses targeted by gripe sits have sued under both the Federal Trademark Dilution Act of 1996 and the Anti-Cybersquatting Law of 1998. If the gripe site is consumer commentary of a noncommercial nature, it is less likely to be violation of these federal laws, particularly the Federal Trademark Dilution Act.

Many commentators believe that gripe sites that do not engage in commerce are protected under the First Amendment. Some recent court decisions have upheld this viewpoint.

For example, in Taubman Co. v. Webfeats, the 6th U.S. Circuit Court of Appeals found that a gripe site was “purely an exhibition of Free Speech, and the Lanham Act (the major federal trademark law) is not invoked.” The appeals court explained: "We find that the domain name is a type of public expression, not different in scope than a billboard or a pulpit, and [the gripe site owner] has a First Amendment right to express his opinion about Taubman, and as long as his speech is not commercially misleading, the Lanham Act cannot be summoned to prevent it."

The law provides a cause of action for trademark owners if they can establish the following:

1. They own a famous mark (determined by eight factors listed in the law).
2. The defendant is making commercial use in interstate commerce of the plaintiff’s mark or trade name.
3. The defendant’s use of plaintiff’s mark occurred after the mark became famous.
4. The defendant’s use causes dilution of plaintiff’s mark by lessening the capacity of a famous mark to identify and distinguish goods or services.

The law exempts noncommercial use of trademarks. The 9th U.S. Circuit Court of Appeals explained in its 1998 decision in Bally Total Fitness Holding Corporation v. Faber that “commercial use is an essential element of any dilution claim.”

However, some courts appear to take a broad view of what constitutes commercial activity. For example, a federal district court in New York ruled in 1997 in Planned Parenthood Federation of America, Inc. v. Bucci that a radio host and anti-abortion activist who had a Web site with the domain name www.plannedparenthood.com engaged in commercial activity for several reasons. These include that fact that the radio host promoted his book on the site, solicited funds for his nonprofit political activism, and designed it to harm Planned Parenthood commercially. The court explained:

Finally, defendant’s use is commercial because of its effect on plaintiff’s activities. First, defendant has appropriated plaintiff’s mark in order to reach an audience of Internet users who want to reach plaintiff’s services and viewpoint, intercepting them and misleading them in an attempt to offer his own political message. Second, defendant’s appropriation not only provides Internet users with competing and directly opposing information, but also prevents those users from reaching plaintiff and its services and message. In that way, defendant’s use is classically competitive: he has taken plaintiff’s mark as his own in order to purvey his Internet services — his Web site — to an audience intending to access plaintiff’s services.

No. Online services have the right to establish and enforce codes of conduct. When you sign up, you’re using a service that belongs to a private company, and you are subject to its rules. Because the online service is a private company, its restrictions do not constitute government censorship and, therefore, do not violate the First Amendment.

The act provides a cause of action to a trademark holder when someone registers a domain name of a well-known trademark — or something very similar to it — and then attempts to profit from it by ransoming the domain name back to the trademark holder or by using the domain name to divert business from the trademark holder to the domain-name holder. Cybersquatters buy up the domain names of well-known companies in the hopes of profiting by selling the online "real estate" back to the trademark holder. Whether a cybergriper violates the anti-cybersquatting law depends on whether the griper has a bad-faith intent to profit from the purchase of the domain name.

However, there is no per se commercial-use requirement in the anti-cybersquatting law. As the 9th Circuit recently wrote in its 2005 decision Bosley Medical Institute, Inc. v. Kremer: “Allowing a cybersquatter to register the domain name with a bad faith intent to profit but get around the law by making noncommercial use of the mark would run counter to the purpose of the act.”

The statute contains a list of nine factors that courts must consider to determine whether someone had a bad faith intent to profit. One of the relevant factors is whether the domain name holder, the alleged cybersquatter, had a “bonafide non-commercial or fair use of the mark in a site accessible under the domain name.”

Many commentators have criticized the use of the anti-cybersquatting law to cover true gripe sites developed not to profit but to release critical consumer commentary. For example, law professor Hannibal Travis writes in a 2005 article in the Virginia Journal of Law and Technology that “trademark rights should be limited to policing commercial competition, rather than non-commercial Internet speech.”

Not at the federal level, though at least eight bills to regulate spam have been introduced in recent sessions of Congress. (See a list of federal bills.)

More than 20 states, however, have passed laws regulating spam. (See spamlaws.com for updated information on states that have anti-spam laws.)

Not if parents install the filters at home, because in that case the government is not involved. Constitutional violations require state action or governmental involvement. The question becomes whether public schools or public libraries violate the First Amendment when they install blocking software on computers accessible by the public. In June 2003, the U.S. Supreme Court ruled in United States v. American Library Ass’n, Inc. that mandatory filtering in public libraries does not violate the First Amendment. The Court’s decision overturned a lower court ruling that such filtering was unconstitutional.

The U.S. Supreme Court has acknowledged that the protection of minors is a compelling government interest. But, the Court has also ruled that protecting minors does not mean that the government has carte blanche to suppress the free-speech rights of adults and older minors. The problem with filters is that they block too much legitimate, constitutionally protected material. A federal court had ruled that less-restrictive alternatives to filtering exist, so that speech is not banned in such a broad swath. The Supreme Court, however, overturned that ruling.

Yes. In 2000, Congress passed the Children’s Internet Protection Act, which requires public schools and public libraries to install a “technology protection measure” and to adopt an Internet-use policy in order to receive federal funds for Internet hookups. Lawsuits were filed challenging the sections of the law dealing with public libraries, but not those pertaining to public schools, and in June 2003, the U.S. Supreme Court ruled in United States v. American Library Ass’n Inc. that mandatory filtering in public libraries does not violate the First Amendment. School officials can add any Web site they want to their list of blocked sites, but if someone objects to blocking a particular site, administrators must show that doing so furthers the compelling government interest of protecting minors.

No. With any free-speech issue pertaining to the Internet, established rules of First Amendment jurisprudence apply. If you were to post on a Web site a message criticizing a renowned scholar, a movie actor, or even the president, you could not be sued for libel unless “actual malice” was shown. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

If criticism turns into threat, however, the situation changes. Threats are not protected speech.

The Supreme Court ruling in U.S. v. ALA says librarians may do so, but critics are concerned that patrons may be embarrassed to ask if they are researching a sensitive topic, such as testicular cancer or sexually transmitted diseases. Having to ask, critics say, also delays research when many patrons’ time on library computers is already limited by demand. Also, patrons may not know information is being blocked and thus would not know to ask. (Associated Press)

No. No law requires Internet Service Providers to protect users’ identities, or even to warn them if subpoenas have been issued seeking to reveal them. But some major ISPs and other online companies, such as Earthlink, America Online, Microsoft and Yahoo!, have made it standard practice to inform their subscribers of potential lawsuits against them.

It is now commonplace for ISPs to be served with subpoenas to reveal information about their members' activities — as well as their identities. Any Internet user who has concerns could look at the privacy policy/terms of use page on the ISP's web site. It will spell out what the ISP will do (if anything) if the company is served with a subpoena.

People without other Internet access — at work or at home — are most affected. They are primarily the poorer, the less educated and members of minority groups. Judith Klug, director of the American Library Association’s Office for Intellectual Freedom, believes many libraries will turn down federal funding to keep unfettered access. But libraries in poorer communities won’t have that option, she said. (Associated Press)

Vendors of filtering software have generally kept their criteria secret for proprietary reasons, leading to complaints that they may be pushing social agendas with no oversight. Filtering companies say their products can be customized, so a library may choose to override certain settings. One vendor, N2H2 Inc., says it has created an online database so customers may determine whether a particular site is blocked, though it offers few details about specifically why. (Associated Press)

At least in California, a court has determined that that state’s anti-SLAPP statute does apply to cyber-SLAPPs (Global Telemedia Int’l v. Doe in 2001). So far California is the only state where a court has ruled that way, but that does not mean other states do not apply their anti-SLAPP statutes to cyber-SLAPPs. (See SLAPP topic in Petition.)

Unfortunately the answer to this is unclear. So far only one state — Virginia — has passed a law allowing public colleges and universities to filter the Internet.

In 1996, Virginia passed a law that “restricts access by state employees to lascivious sexually explicit material on computers owned or leased by the state.”

Access to such material may be allowed if it is part of an “agency approved research project” and permission is granted by a supervisor. The law was challenged by six state university professors on grounds that the law unconstitutionally interfered with their research and teaching.

The case was heard by the full 4th U.S. Circuit Court of Appeals, which in an 8-4 decision, held the statute to be constitutional. The court had to determine if the statute regulated speech made by public employees, in their role as private citizen, on matters of public concern. The critical determination, according to the court, “is whether the speech is made primarily in the [employee’s] role as citizen or primarily in his role as employee.” The court found in its 2000 ruling in Urofsky v. Gilmore, that the speech at issue — “access to certain materials using computers owned or leased by the state for the purpose of carrying out employment duties” — was clearly made in the employee’s role as employee. Therefore the statute “does not affect speech by [the professors] in their capacity as private citizens on matters of public concern” and thus “does not infringe the First Amendment rights of state employees.”

The professors in Urofsky had also argued that the statute was unconstitutional because it infringed on their First Amendment right to academic freedom. The 4th Circuit judges rejected this argument, saying that their review of the law lead them to conclude that the right to academic freedom was held by the university and not the individual.

Though critics failed to convince the high court that the Children’s Internet Protection Act is unconstitutional, they may still file a lawsuit later if they find specific examples of harm, such as a patron’s not being able to get a legitimate site unblocked promptly or at all. (Associated Press)

A blog, or Web log, is generally described as an online journal or diary where individuals can post their thoughts on a subject for the world to see and read. Many, however, disagree over the definition of a blog. Robert Cox, president of the Media Bloggers Association, stated in an interview with the First Amendment Center Online that there is no clear definition of “blogging”: “[The term] is worse than useless because it is an empty vessel into which people can — and do — pour whatever meaning suits them at the time. … Blogging is writing.”

Just as with any medium of communication, blogging can implicate a variety of First Amendment interests. Some bloggers write material that others may claim is defamatory. There is also a debate as to whether bloggers qualify as journalists or reporters for purposes of reporter-shield legislation. Additionally, a looming question concerns the extent of free-speech protection held by public employees who post blogs on their free time. There is also a debate as to whether bloggers should be subject to campaign-disclosure legislation.

That is a difficult question. Certainly, public employers have authority to prohibit employees from writing their blogs on employer time. The trickier question is whether a public employee can be disciplined for expression created on his or her own time. One theory is that since the expression was created off-duty, then the employer has no control over such content. A key factor could be whether the expression causes a disruption at the workplace. A few courts, for instance, have disciplined employees for racist comments they have made off-duty. This is a developing area of the law that merits close attention.

Attempts to do so thus far have been so broadly worded as to have prohibited a good deal of constitutionally protected expression, including movies containing scenes in which a minor “appears to be” involved in sexual activity. Those who resist such restrictions do so not out of fondness for child pornography but from a conviction that laws against child pornography — which is illegal — should remain focused on protecting actual children from harm rather than interfering in the imaginary world of virtual depictions in which no children are harmed.

Yes. Congress passed the Child Internet Protection Act, a law primarily aimed at prohibiting the transmission of child pornography over the Internet. One of the provisions of CIPA required public libraries, as a condition of their receiving federal subsidies, to have Internet filters on their computer terminals so that library patrons would be unable to access offensive Web sites. These Internet filters block, among other things, access to sites that espouse or display hate speech. In American Library Ass’n, Inc. v. U.S., 201 F. Supp. 2d 401 (E.D. Pa. 2002), the U.S. District Court for the Eastern District of Pennsylvania found that provision of CIPA unconstitutional. (See Filtering article in this section.)