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Congress can cultivate standards for decency that prevent children viewing salacious material in a virtual situation by giving technological control to a child's parent or guardian.
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Allowing local judges to interpret and set web site standards of speech
for senior citizens
goes beyond the pale.
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Traditional local or national community standards do not apply to the Internet because it spans all jurisdictions, globally. Moreover, the arguments that apply against a national standard also apply to international standards, probably more powerfully. Consequently, existing standards regarding regulation of language permitted by the First Amendment need new law to meet the realities of Internet speech. That new law does not derive from local judges deciding community standards to meet their own political agendas.
Courts have already questioned whether geographically oriented community standards remain viable for international computer networks like the Internet. Existing standards for broadcast and telephone media differ widely. [02] Those media bear no relation to the secondary orality experienced on web sites. That orality effectively allows a speaker to speak in more than one place simultaneously despite community considerations or local laws to the contrary. Medium-specific decency definitions only make sense when municipalities seek to regulate geographic not virtual communities.
Congress can cultivate standards for decency that prevent children viewing salacious material in a virtual situation by giving technological control to a child's parent or guardian. However, allowing local judges to interpret and set web site standards of speech for senior citizens goes beyond the pale. Community standards exist but the perennial question arises - whose community?
In cyberspace two relevant communities coexist - the content providers or "speakers" and the content users or "listeners". Two vital factors determine whose community standards apply: (1) Did the content user or listener solicit information? (2) Did content users have (explicitly or implicitly) notice of what they would view or receive?
What the "speaker" sends and what the "listener" seeks will require precise definition by Congress. Those definitions will form an important part of any community standard for Internet communication. They must particularly address the ubiquity of cyberspace technology and culture. The logic of electronic language must provide the distinctions. For example, the recipient receives unsolicited information by email and specifically requests information from a web site. That involves a crucial distinction.
Web communication greatly differs from traditional media. Web listeners do not passively receive information as with traditional broadcast media. Instead, they request it and may respond to it or view it in a variety of ways. To access information they must know and type the address (URL) of a site or find the site by typing a search string (keyword) into a search engine - a conscious act. By this, they have absolute control whether they receive information or not. In an ACLU case, based upon testimony by government witnesses, a court found that "odds are slim" that a listener would enter a site by accident. [03]
Information on web sites, as with other public forums, must remain available either to all users of the network, including minors and senior citizens, or none at all. Listeners have absolute control over what they read and courts may not deny their choice. Moreover, the speaker has no means to direct or restrict Internet speech to or from any particular geographic location.
Speakers define cultural not geographic parameters when they post information to web sites. Listeners then access those sites with a particular cultural interest. The speaker does not send information to a particular geographically located community, instead, listeners import it into their own community. Therefore, if the content does not suit the particular tastes of that community its members have only themselves to blame.
Several courts have found that not knowing the location of web users causes constitutional problems in statutes that restrict online speech. Geographic distinctions have no bearing upon the Internet. Listeners neither know nor care about the physical location of the Internet resources they access. Moreover, Internet protocols deliberately ignore speaker and server location by using "logical addresses" instead of geographic addresses. [04]
For example, a content provider in Timbuktu may post explicit content related to homosexual behavior on a web site designed for that purpose. That content will have significance to some readers and rank as obscene with others. Community members have a choice whether they view the web site or not. Queers living in Seattle, Washington, may find the information absorbing while religious fanatics in Salt Lake City, Utah, may find it disgusting - each in his own way. Moreover, Internet speakers generally shoot arrows into cyberspace and do not know where they fall. Consequently, no local judge may claim jurisdiction and impose over-breadth community standards on border-less media like the web.
Web dissemination relies upon demographics not geography. In the Seattle/Salt Lake City example, seeking access to particular web content probably results from a sexual proclivity or a religious affinity, unrelated to domicile. Therefore, any regulation of global expression calls for an international convention. How can a queer judge in Seattle or a Mormon judge in Salt Lake City set a community standard for a content provider in Timbuktu? How can either judge, using vastly different definitions of homosexuality (a copulative experience: a sodomite evil), possibly establish a global definition without outing or owning their sexual or religious bias? How will either judge enforce his finding in Timbuktu?
One must realize that more than 40% of web site content originates outside the United States with the proportion of non-US users increasing proportionately each day. No court has either the knowledge or experience to set standards worldwide on a particular topic. Moreover, requiring web speech to conform to different community standards imposes an impossible burden on the speaker.
In a contempt decision, Judge James A. Doerty, Washington Superior Court, has set a worldwide standard. He has based it upon arbitrary likes and dislikes voiced by approximately forty senior citizens in a US Department of Housing and Urban Development (HUD) financially-assisted residence in Seattle. He apparently speculated that senior citizens cannot think for themselves and that he should therefore treat them as children. Furthermore, he knowingly accepted suborned testimony as evidence from the project administrator, Stephen A. Mitchell, without allowing refutation.
Doerty's ruling restricts constitutionally protected speech. It protects the directors and managers of a government financially-assisted building from criticism and probable indictment by silencing dissent. It prevents a reporter from disclosing that Council House management has abused residents and misappropriated government funds. That ruling evades constitutional law and smacks of political self-interest by a newly elected judge.
Higher courts, if they follow case law precedents, will certainly find Doerty's decision unconstitutional. Broadly, Doerty's decision subjects web speakers internationally to a restrictive local community standard for senior citizens based upon declarations suborned from 40 residents in a single building without considering the constitutional rights or soliciting the views of the other 160 inhabitants. Doerty has effectively set an international community standard based upon unsubstantiated testimony in a frame-up organized by Mitchell and his attorney later condoned by his directors.
Web speakers have no way to learn the characteristics of their audience based on age or geographic location. If they did have that option then it would only provide a means to introduce an international mandate based upon the most restrictive community's standards. That would go against a long-standing doctrine in the US that prohibits a national standard.
The "community standards" doctrine was first applied to state obscenity laws. [05] That court defined the obscenity test as whether "the average person, applying contemporary community standards, [finds that] the dominant theme of the material taken as a whole appeals to prurient interest." Moreover, another court articulated the local community standards doctrine that has governed for almost thirty years. [06] People in different locations and of different nationalities and religions vary in their tastes and attitudes. Courts must not strangle diversity and stifle ideas by the absolutism of imposed uniformity.
Doerty arbitrarily interfered with the flow of information on a web site and has fined a reporter $100.00/day for contempt of court for not yielding to ambiguous court censorship. He has also threatened to jail that professional journalist if he does not cease to publish information on the Internet that the judge finds objectionable. His ruling has a chilling effect upon freedom of expression because it could cause speakers to comply with mandated political correctness and to self-censor expression of their ideas.
The community criteria used by Doerty to establish his standard on the web fundamentally differ from the criteria used by other media. Doerty ignored a recent ruling by Judge Robert H. Alsdorf (sitting in the same courthouse and one of Doerty's election campaign contributors) which found that publishing names, home addresses, and ages, obtained from public records does not victimize those people mentioned. [07]
Lawful protection of senior citizens at Council House, Seattle, [08] does not include removing their constitutional rights by censoring information and denying rights of assembly. If a court rules for censorship then that ruling becomes technologically impossible to enforce. Moreover, US courts and legislators cannot lawfully restrict speech that appears on foreign web sites. Courts may not censor speakers (content providers) in countries outside US jurisdiction and any domestic censorship must apply equally to all speakers.
By definition, territorially based regulation effectively restrains American speakers but ineffectively protects American readers or viewers as Doerty's censorship clearly proves. Moreover, Doerty may not make law to censor what Council House residents read to suppress what Council House directors do not wish them to read. His power ends with the interpretation of existing law. To attempt to protect senior citizens from what their juniors consider harmful speech by restricting speakers clearly violates the US First Amendment. Legislation becomes unconstitutional if it affects only a particular constituency.
Constitutionally, adults have a First Amendment right to engage in any speech that they wish without restriction. [09] Doerty has used economic burdens to deprive a speaker of this freedom on the Internet and from distributing leaflets. His finding violates the First Amendment because it imposes a financial burden on a speaker based upon content of speech. It restricts freedom to distribute information and by that restricts a speaker's freedom of expression. In this case, it deprives an accredited journalist and academician of his livelihood. [10]
In Trummel v. Mitchell, Doerty has apparently applied the obsolete Hicklin [11] standard that determines censorship of information based upon who might potentially obtain the material and within that group whom it would affect. Under that statute (1868), any material considered obscene by anyone who could obtain it would also classify as obscene under the law according to Doerty. That statute limited material about homosexuality.
The courts now consider that type of censorship as a legally indefensible, unconstitutional, restriction of speech. However, Doerty has judged obscenity (or unacceptable language) by his interpretation of the effect that selected paragraphs taken out of context may have upon senior citizens. He apparently thinks that he has the welfare of children under consideration.
Case law allows publication of Internet articles about homosexuality and certain types of obscene material. Children may read them only restricted by parental control. In loco parentis (authority as parent or guardian) may sometimes apply to students in universities and other institutions but does not apply to senior citizens. In effect, Doerty has appointed an administrator (37) over tenants twice his age living independently in an apartment block, in loco parentis. Those tenants have a lifetime of experience and many have a mental capacity far exceeding that of the administrator.
Doerty's ruling restricts publication of information about senior citizen abuse that could help authorities investigate and prosecute crimes. Censoring alleged perpetrators' names from those publications protects them from discovery - prior restraint that aids and abets felonies. Most journalists accept a responsibility to report the truth for the public good and do not allow people under investigation to use kill-the-messenger techniques to silence them. This has resulted in a long tradition of helping law enforcement by publishing research and by using shame naming - a lawful activity. [Prior Restraint]
The Roth standard, [12] which developed into particular community standards across the United States applies inadequately in global communication. Now, the average person in a community as a whole and not an isolated class of individuals has sway. The Roth standard (1957) applied to a particular community and way of life not to the constitutional rights of the speaker but to the needs of the listener. It covered a particular community or those communities through which information passed. It gave notice of where to draw a line between acceptable and unacceptable speech.
Internet community standards depend upon global postulates, factual predicates, and assumptions. They apply to news gathering and delivery from speaker to listener that includes the expectations of both speaker and listener. Current community standards do not apply to Internet communication. They cannot survive when applied to this medium.
If courts accept the assumptions of community standards doctrine for the Internet, then they violate the First Amendment. Applying the listeners' (or judges') community standards in defining unacceptable speech on the Internet perversely undermines the set of constitutional values that the law purports to uphold.
No single organization, or country for that matter, controls access to the Internet. Nor does any centralized technology exist that can block dissemination of information on web sites. All information becomes universally available. Thus, an intriguing paradox exists. If courts apply community standards to the Internet, then speakers must follow the most extreme and conservative community's definition of material harmful to particular constituencies.
The problem does not lie in standards that would vary from community to community - the sole purpose of community standards. The "Doerty doctrine" implies that web site posting effectively has only one standard - that of the most restrictive community (forty bigoted senior citizens living at Council House). Judges in other communities may reach different conclusions using the same premises. Those conclusions cannot affect the Internet or its global independence any more than the Doerty doctrine does.
If the recent court finding in France could have effectively censored Internet content, created and freely expressed in the US, then other countries would by now have done the same thing. Before one could utter "Osama", the Internet would come under the control of foreign governments and Kabul would dictate what the United States should do or say (if it does not do that already).
Arguably, the French government cannot enforce its court judgment in the US. Most lawyers know that one cannot enforce foreign judgments that relate to speech codes in the US. Foreign criminal laws like the French hate speech code have remained unenforceable outside France for hundreds of years. In fact, US law favors nonviolent expression of offensive viewpoints rather than imposing viewpoint-based government regulation of speech. [13]
US judges may not make rulings on web site content published in Timbuktu, especially when that ruling is technologically impractical. Timbuktu does not compare either demographically, geographically, or linguistically, with Seattle, Washington or Salt Lake City, Utah. Moreover, in a world where ideas and information transcend borders the Internet renders time and distance between speaker and listener virtually meaningless.
US court decisions do not apply to policy, politics, or culture, beyond the purview of US jurisdiction especially when those findings apply to Internet communication. The First Amendment does not permit the government to engage in viewpoint-based regulation of speech. Absent a compelling government interest, such as averting a clear and present danger of imminent violence, courts may not restrict the flow of information. [14] Moreover, loss of First Amendment freedoms for even short periods unquestionably constitutes irreparable damage. [15]
Council House lawsuits and Doerty's findings deprived a web "speaker" and accredited journalist of his constitutional right to free speech. It also prevented him from reporting politically sensitive issues or giving information to federal, state, or local agencies in good faith. The legislature previously enacted statutes to protect people from this type of prior restraint; yet Doerty ignored those statutes and constitutional law. No legal judgment has any effect beyond the limits of the sovereignty that grants its authority. [16]
Usually, a reporter in a defamation action (or an antiharassment action that introduces defamation into evidence) does not bear the burden of proof - especially if he claims immunity on grounds that he made a communication about a public figure in good faith. Responsibility rests with the allegedly defamed party to show clear and convincing evidence that the reporter did not act in good faith. That party must show that the reporter knew of the falsity of his statements or acted in reckless disregard of truth. [17]
Moreover, a party seeking to defeat a reporter's claim of privilege must do more than show a cause of action. Relying upon unsubstantiated pleadings does not constitute a proper test. [18] Furthermore, the party must establish jury issues on the essential elements of the case, not the subject of contested discovery. [19]
Washington State Law provides special rights of action and immunities. The legislature promulgated that law to protect people who report wrongdoing to government agencies from retaliation. Doerty's ruling essentially dissuades reporters from reporting wrongdoing and grants immunity to wrongdoers - a variant of prior restraint. Doerty, during his third month as an elected superior court judge, perverted established state and federal case law. He has arrogantly attempted to censor Internet speech by denying due process of law, probably for political reasons.
Difficile est saturam non scribere (It's hard not to write satire). [20]
After learning that neophyte Judge James A. Doerty sits in the same courthouse as senior Judge Anthony P. Wartnik, one better understands his rulings. Judge Wartnik's wife, Lynn Wartnik, Past Co-President, with other directors, bears ultimate responsibility for the abuse and misappropriation at Council House. She probably wants to evade federal investigation. Caesar's wife must stay beyond suspicion, but what about Caesar himself? Should one not ask whether Judge Wartnik had something to do with the judicial misconduct involved in a case that involves his wife?
Doerty continues to allow Council House attorneys (Silence, Censor, and Beleaguer, Seattle (SCaB)) to file frivolous contempt motions against the investigative reporter who wrote this essay. Having repeatedly failed to jail him on trumped-up charges they have tried several other different tacks to try to silence him.
SCaB filed unfounded declarations that persuaded Doerty to rule that the reporter: "May have difficulty modulating his behavior due to organic brain damage suffered as a consequence of his many years of chronic severe alcoholism." They presented no medical evidence and the court disallowed refutation that would have disclosed that the reporter does not drink any alcohol or coffee and has not done so for two decades. Nor does he smoke anything, take drugs, or consort with syphilitic whores except for one or two judges.
Doerty then ruled that: "The affairs of Counsel [sic] House with which he has no legitimate concern, prove that the restraining order's [prior restraint] severity was merited." In other words, investigative reporters have no business investigating misuse of public money.
Now Council House has filed a motion claiming mental incompetence. In that motion SCaB has asked the court to order a psychiatric examination and to declare the reporter incompetent then appoint a legal guardian. They claim that the reporter lacks the mental capacity to understand the importance of complying with prior restraint and censorship orders (issued under the guise of antiharassment orders and contempt citations). They say that he cannot understand the consequences of his actions.
You decide which side in this Kafkaesque farce has competence!
Nmesis.
