You are largely protected by the First Amendment for the art that you create and display online. The Supreme Court has held that online speech merits, like newspapers, the highest standard of protection. “‘[The] content on the Internet is as diverse as human thought.’ . . . [O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.”
First Amendment protections are not 100% unqualified, however. Some types of expression can be regulated or lead to penalties, as described in the issues sections of this site:
Art that makes unfair use of copyrighted material might likewise lead to liability and financial consequences. (See article on sampling and appropriation.)
In some narrow circumstances, the government can regulate art distributed online that is associated with a political campaign. (See article on political speech.)
Those sections of the site describe how these content-based risks might affect you. This section will explain certain issues related to your role as an artist or an online service provider posting, distributing, and/or selling art online.
Consider a Warning
If you want to avoid conflict over potentially controversial work, you might consider putting particularly jarring material behind a warning to users saying that some viewers might find your work disturbing. This is a relatively simple way to minimize complaints, either directed to you as the artist or to the service provider hosting your material, since viewers who might be offended by your work can choose not to click through.
Of course, nothing in the law obligates you to put your work behind such a warning screen. If your intent is to shock or to openly confront difficult issues, you may prefer to forgo providing this kind of warning, and you have the right to do so. But be aware of the requirements in the terms of service of the company that is hosting your site, to reduce the possibility of having your material taken down.
Special Considerations for Posting Anonymously
First Amendment protections apply no less to art posted anonymously. The Supreme Court has guaranteed, in a political context, that the First Amendment protects the right to speak anonymously: “Protections for anonymous speech are vital to democratic discourse.” There has not been such a direct statement directly addressing online activities more broadly, but the high protection afforded Internet speech strongly suggests that the same protection of anonymity applies.
When anonymous speech and the Internet collide in court, it tends to be because someone is attempting to force an online service provider to reveal the identity of a subscriber. If you’re posting work that might be controversial or provocative and choose to do anonymously, you should be aware that your anonymity is not necessarily guaranteed. Although it is generally possible to remain practically anonymous online, in most cases your identity can be discovered through a chain of service-providers and ISPs. The perception of full anonymity can and has led people to post damaging and illegal material online, and in the interest of holding people responsible, service providers can be compelled by courts to turn over identifying information. One leading case has established that judges must consider the right to speak anonymously when asked to unmask anonymous online speakers, but there is some disagreement among courts and this is not necessarily guaranteed.
What’s more, requests to turn over users’ identities do not necessarily have to come from courts or judges at all. Individual parties in a lawsuit can serve requests or subpoenas on service providers for identifying information, and providers might have different policies as to if and when they will make such disclosures. If identifying information is subpoenaed, you or the service provider must object to the disclosure in order to get the court to consider your right to speak anonymously. While many service providers will fight requests for their users’ information or notify their users to give them the opportunity to object, it is possible that the operators of some sites might voluntarily reveal details if presented with what they think is a compelling case. Be sure to read any forum’s or hosting provider’s terms of service to better understand how and when they might reveal your identity to third parties.
While the First Amendment applies to students, including minors, secondary schools have substantial leeway in governing the actions of their students. It is well established that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” but schools must be free to limit disruptions to education. This can lead to greater control over what in a more public setting would be fully protected expression. In the offline world, there are frequent examples of schools and universities objecting to students’ protected artistic expression and either taking work down or shielding it from public view. (The National Coalition Against Censorship regularly blogs about such incidents.)
While administrators historically have been unable to censor or sanction students for off-campus expression, the Internet might be blurring this distinction. A court in Connecticut recently found that a student’s rights were not violated when her school punished her for posting insulting language about administrators on her blog, in part based on the argument that her statements online could have a direct impact on school grounds – more so than spoken words or more private writing. The case is not fully settled (more info), but it could signal the beginning of a trend. As with any online activity, if you post controversial work online, you should be aware of whom that material might reach, and what authority they might have over you.
Hosting your own site v. using third party providers
No matter what kind of art you create, there are many ways you can go about posting, selling, or sharing your work online. You could register a domain and put up your own site, or you could add your work to online communities such as flickr, youtube, or deviantart. However you do it, you will likely be dealing with service providers who can legally limit what you are able to post through their terms of service. It’s important to remember that any service provider – be it simply a web hosting service or a full-featured online community – can impose content restrictions through its terms of service.
While providers are broadly protected from liability for the content that their users might contribute, they might still impose restrictions on what kind of material they will and will not allow, and as private actors they are within their rights to do so. They might impose restrictions because of the site’s reputation or the audience or clientele it is trying to attract, or because they want to avoid the risks of hosting controversial or offensive material.
Terms can vary by the type of service offered. If you’re using the free hosting space from your ISP, for example, you might run into stricter terms than you would on a specialized service more suited to provocative artistic content. Choosing to build your own site can reduce the number of ways that what you post can be restricted, but it can require significantly more investment, and even service providers like web hosts that do not have much to do with actual content might place some restrictions on what they will and will not host.
It’s important, then, to read through terms of service, especially if your work is risky or controversial. The good news is that there is no shortage of web hosts, social networks, and online communities to choose from.