Ben Heine/ MWC NEWS

At a time of corporate dominated media, a free and open Internet is democracy's last chance to preserve our First Amendment rights without which all others are threatened. Activists call it Net Neutrality. Media scholar Robert McChesney says without it "the Internet would start to look like cable TV (with a) handful of massive companies (controlling) content" enough to have veto power over what's allowed and what it costs. Progressive web sites and writers would be marginalized or suppressed, and content systematically filtered or banned.

Media reform activists have drawn a line in the sand. Net Neutrality must be defended at all costs. Preserving a viable, independent, free and open Internet (and the media overall) is essential to a functioning democracy, but the forces aligned against it are formidable, daunting, relentless, and reprehensible. Some past challenges suggest future ones ahead.

Censorship Attempts to Curtail Free Expression

The First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the 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."

Nonetheless, Congress and state legislatures have repeatedly tried to censor free speech, allegedly regarded as indecent, obscene, hateful, terrorist-related, or harmful to minors. However, the Supreme Court, in a number of decisions, ruled that the government may not regulate free expression, only its manner such as when it violates the right to privacy "in an essentially intolerable manner" - a huge hurtle to overcome, including online, because viewers are protected by simply "averting (one's) eyes (Cohen v. California - 1971)."

In 1998, the Child Online Protection Act (COPA) passed, but was blocked by federal courts as an infringement of free speech and therefore unconstitutional and unenforceable. In 1999, the law was struck down at the Appellate Court level, but it stayed on the books. In 2002, the Supreme Court reviewed the ruling and returned the case for reconsideration. It remained blocked. Then in March 2003, the Appellate Court again ruled it unconstitutional on the grounds that it would hinder protected adult speech that's likely what it was about in the first place.

Other litigation followed at the District and Appellate levels until on January 21, 2009, the Supreme Court killed COPA by refusing to hear appeals to affirm it. The Electronic Frontier Foundation put it this way: "After 10 Years, an Infamous Internet-Censorship Act is Finally Dead." At least that's the hope, but censorship attempts never die. They just reinvent themselves in new forms made all the easier when powerful corporate interests and their congressional allies support them.

In 2000, the Children's Internet Protection Act (CIPA) became law, and the Supreme Court upheld it - to regulate online content deemed "indecent (or) harmful to minors." The law requires schools, libraries and other public institutions to install blocking software to prevent minors from having access to it.

In 2006, the Deleting Online Predators Act (DOPA) passed the House but not the Senate. It also would have mandated schools, libraries and other public institutions to prevent minors from accessing "commercial social networking websites (and) chat rooms."

Its language was broad enough to apply also to sites like Amazon, Yahoo, Wikipedia and others and would have made the FCC a gatekeeper/censor. As the Protecting Children in the 21st Century Act, the law was reintroduced in the Senate in January 2007 but never passed.

In February 1996, the Communications Decency Act (CDA) was passed - to regulate alleged indecent and obscene online content in violation of the First Amendment. Under the law, classic fiction would be banned as well as any material deemed offensive. In June, 1996, a three-judge federal panel partially struck it down for restricting adult free speech. In June 1997, the Supreme Court upheld the lower court ruling in Reno v. American Civil Liberties Union.

The Act was Title V of the 1996 Telecommunications Act titled Broadcast Obscenity and Violence that applied broadcast standards to the Internet. Under Section 230, Internet services operators aren't considered publishers and thus have no liability for the words of third parties using their services.

In 2003, Congress amended CDA by removing struck down indecency provisions. In 2005, a three-judge Southern District of New York panel rejected Barbara Nitke's obscenity provisions CDA challenge (in Nitke, et al v. Ashcroft). The Supreme Court upheld the decision.

In 2005, the Violence Against Women and Department of Justice Reauthorization Act (VAWDOJRA) became law - and another blow to online free speech by prohibiting "any device (like a modem) or software that can be used to originate....(anonymous or other) communications that are transmitted, in whole or in part, by the internet" for the alleged purpose of harassment, even if only vigorous constitutional debate was intended or ordinary free speech.

In October 2007, the House passed the Violent Radicalization and Homegrown Terrorism Act called "the thought crime prevention bill." It was introduced in the Senate, referred to the Homeland Security and Governmental Affairs Committee, but never voted on or passed.

If it ever becomes law in its present form, it will establish a commission and Center for Excellence to study and act against "thought criminals" (including online ones) for alleged acts of "violent radicalization (and) homegrown terrorism" defined as follows:

Another ongoing censorship issue involves craigslist - a worldwide online community network featuring classified ads for "jobs, housing, for sale, personals, services, local community, and events."

On May 5, South Carolina Attorney (AG) General Henry McMaster notified its CEO, Jim Buckmaster, that unless an "erotic services" section is removed in 10 days, "craigslist management may be subject to criminal investigation and prosecution." Other AGs in Rhode Island, Illinois, and Connecticut issued similar threats even though all of them are baseless.

Previous courts have held that Section 230 of the Communications Decency Act (CDA) protects "interactive computer service" providers like craigslist and lets them be self-regulating and free from liability. The law clearly states that they shouldn't be responsible for third party content because they didn't do enough to comply with individual State standards that may violate the First Amendment and federal law.

In craigslist's case, it's gone way beyond its legal obligations. In November 2008, it agreed to technical and policy changes to curb the use of its site for illegal purposes by third parties, including requiring telephone and credit card verification for "erotic services" ads to reject ones deemed illegal.

Earlier, craigslist screened out 90% of these ads. Nonetheless, it's being unfairly targeted by AGs interpreting Section 230 and First Amendment rights as they please. Federal law, however, protects craigslist, but not against ambitious AGs harassment for their own political advantage and self-interest.

On May 20, craigslist announced that it filed suit against South Carolina Attorney General Henry McMaster seeking "declaratory relief and a restraining order with respect to criminal charges he has repeatedly threatened against craigslist and its executives." Craigslist is on solid footing. It's in full compliance with the law, but McMaster's persistent threats forced it to sue in federal court.

These and numerous other congressional and other attempts aim to censor protected speech, including online. Expect more of this ahead, some legislation to be enacted, at times upheld by the courts, and, as a result, our liberties to be chipped away incrementally and lost - unless a line in the sand is drawn and defended by enough of the committed to do it.

On February 29, 2008, one skirmish turned out successfully when a federal judge let the anonymous whistle-blowing WikiLeaks resume operations after a week earlier ordering its US hosting company and domain registrar (Dynadot) to shut down and lock out its site. In his reconsidered ruling, District Judge Jeffrey White conceded he was having second thoughts regarding "serious questions of prior restraint (and) possible violations of the First Amendment." He added that "the court does not want to be a part of any order that is not constitutional." Even so, one triumph doesn't  mean victory. The struggle for unimpeded free speech continues.

Secret Unconstitutional Surveillance, Including Online Data Mining

The right to privacy is sacred even though no constitutional provision specifically mandates it. Nonetheless, the First Amendment guarantees free and open speech and beliefs. The Third Amendment the privacy of our homes against demands to be used to house soldiers. The Fourth Amendment against unreasonable searches and seizures. The Fifth Amendment against self-incrimination and privacy of our personal information.

Also, the Ninth Amendment states that the "enumeration of certain (of the Bill of) rights shall not be construed to deny or disparage other rights retained by the people." In Griswold v. Connecticut (1965), the Supreme Court held that the Constitution protects privacy in a case affirming the right to use contraceptives and that banning them violated the "right to marital privacy."

In Justice Arthur Goldberg's concurring opinion, he cited the Ninth Amendment in defense of the ruling. Earlier High Courts also affirmed the constitutional right of privacy on matters of marriage, child rearing, procreation, education, termination of medical treatment, possessing and viewing pornography, abortion, and more as well as overall privacy protection.

The 14th Amendment's "liberty" clause also relates to privacy by stating: "nor shall any State deprive any person of life, liberty, or property, without due process of law...." Courts have broadened the meaning of "liberty" to include personal, political and social rights and privileges. Thus, invasion of private spaces is unconstitutional.

In Olmstead v. US (1928), Justice Louis Brandeis stated:

It cited the NSA's practice in recent months of intercepting private emails and phone calls of Americans "on a scale that went beyond the broad legal limits established by Congress last year...." Briefed intelligence officials and lawyers called it "significant and systematic....overcollection" in violation of the law.

The Justice Department acknowledged the problem but said it was resolved. For its part, the NSA said its "intelligence operations, including programs for collection and analysis, are in strict accordance with US laws and regulations." The Office of the Director of National Intelligence, in overall charge, downplayed the The Times story, referred to "inadvertent mistakes," and claimed efforts were immediately implemented to correct them.

Nonetheless, the issue remains unsettled, and new details reveal earlier domestic surveillance, including wiretapping a congressional member without court approval, and systematically doing it against many American citizens.

Tom Burghardt writes often on these issues for various publications, web sites, and his Antifascist Calling blog...."Exploring the shadowlands of the corporate police state." In calling "Spying on Americans: 'Business as Usual' under Obama," he reported that working cooperatively with private corporations, the NSA collects vast amounts of "transactional data such as credit card purchases, bank transactions and travel itineraries....sold to (the agency) by corporate freebooters." It's then data-mined for "suspicious patterns," a practice begun pre-9/11 but expanded greatly since then.

More than just financial transactions are monitored. According to investigative journalist Christopher Ketchum, "as many as '8 million Americans are now listed (as) secret enemies....who could face detention under martial law (and subjected) to everything from heightened surveillance and tracking to direct questioning" and possible internment.

Nothing under Obama has changed in spite of serious privacy, civil liberties, and other constitutional issues. Director Rod Beckstrom of DHS' Cyber Security Center resigned in March because of NSA's "greater role in guarding the government's computer systems" and its concentrated power without checks and balances.

According to Electronic Frontier Foundation's senior staff attorney Kevin Bankston: Obama's "Justice Department (is continuing) the Bush administration's cover-up of the National Security Agency's dragnet surveillance of millions of Americans, and insisting that the much-publicized warrantless wiretapping program is still a 'secret' that cannot be reviewed by the courts...." because doing so would harm national security.