Re: [dvd-discuss] Content neutral?

["Peter D. Junger" <junger(at)samsara.law.cwru.edu>]

"D. C. Sessions" writes:

: Maybe someone can help me here.  I have in my hand a
: piece of paper printed with text.  I wish to place this text
: on the Web.  According to the 2nd Circuit, an injunction
: against my placing this text on the Web is content-neutral.
: 
: Does this mean that it doesn't matter what is on that piece
: of paper?

The Second Circuit would be right if the law forbade posting 
anything whatsoever on the web, for that truly would be 
content neutral.  (It would also clearly be unconstitutional.)  
Since the DMCA, as interpreted by the court, only forbids 
posting certain code, not all code, to the web, it is not
content neutral.
  
For an example of a statute forbidding publication that is content
neutral, see the recent Supreme Court case of Bartnicki v. Volper,
532 U.S. 514 
<http://www.supremecourtus.gov/opinions/00pdf/99-1687.pdf>,
where the court held that 

   We agree with petitioners that § 2511(1)(c), as
   well   as   its    Pennsylvania   analog,   is  in  fact  a
   content-neutral  law  of  general  applicability.  "Deciding whether a
   particular  regulation  is  content  based  or  content neutral is not
   always  a  simple  task.  .  . . As a general rule, laws that by their
   terms  distinguish  favored speech from disfavored speech on the basis
   of   the   ideas   or  views  expressed  are  content  based."  Turner
   Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642-643, 129 L. Ed. 2d
   497,  114  S.  Ct. 2445 (1994). In determining whether a regulation is
   content  based  or  content neutral, we look to the purpose behind the
   regulation;  typically,  "government regulation of expressive activity
   is  content  neutral  so long as it is 'justified without reference to
   the  content  of  the regulated speech.'" Ward v. Rock Against Racism,
   491 U.S. 781, 791, 105 L. Ed. 2d 661, 109 S. Ct. 2746 (1989). 
   
   In this case, the basic purpose of the statute at issue is
   to   "protect   the   privacy   of   wire[,   electronic,]   and  oral
   communications."  S.  Rep.  No. 1097, 90th Cong., 2d Sess., 66 (1968).
   The  statute  does  not  distinguish  based  on  the  content  of  the
   intercepted  conversations,  nor  is  it justified by reference to the
   content  of  those  conversations. Rather, the communications at issue
   are  singled  out  by  virtue  of  the  fact  that they were illegally
   intercepted  --  by  virtue  of  the  source,  rather than the subject
   matter.
   
The Court in the Bartnicki case, which was not cited by the 2d Circuit, 
goes on to point out that though the statute that was challenged was
``content neutral,'' the speech that it was applied to was ``pure 
speech.''

   On the other hand, the naked prohibition against disclosures
   is  fairly  characterized  as  a regulation of pure speech. Unlike the
   prohibition   against   the  "use"  of  the  contents  of  an  illegal
   interception  in  § 2511(1)(d), subsection (c) is not a regulation
   of  conduct. It is true that the delivery of a tape recording might be
   regarded  as conduct, but given that the purpose of such a delivery is
   to  provide  the recipient with the text of recorded statements, it is
   like  the delivery of a handbill or a pamphlet, and as such, it is the
   kind  of  "speech"  that  the  First  Amendment  protects.  As the
   majority  below  put it, "if the acts of 'disclosing' and 'publishing'
   information do not constitute speech, it is hard to imagine
   what  does fall within that category, as distinct from the category of
   expressive conduct." 200 F.3d at 120.
  
Now the Second Circuit purported---but failed---to apply the level of
scrutiny required by the O'Brien case, which involved the category
of expressive conduct---burning a draft card.  But under Bartniki 
the speech that was enjoined was pure speech (to say nothing of 
being content neutral) and does not fall within the category of
expressive speech and thus the O'Brien standard is inapplicable.

It seems to me that the failure to consider the effect of Bartnicki
gives a strong ground for petitioning for a rehearing or for cert.,
especially when it is joined with the failure to actually subject
the the restraint on pure speech to even the level of scrutiny required
by O'Brien.


--
Peter D. Junger--Case Western Reserve University Law School--Cleveland, OH
 EMAIL: junger@samsara.law.cwru.edu    URL:  http://samsara.law.cwru.edu   
        NOTE: junger@pdj2-ra.f-remote.cwru.edu no longer exists