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The First Amendment
Does it Still Mean Anything?


The First Amendment and what it means for free speech online
by Sam Cook

The internet as we know it is nearly 30 years old. Sure, the web is a bit more complicated — and more intricately connected — than it was 30 years ago, but it’s no less of a modern Wild West today than it was in the 90s (although you may need to dig deep into the darknet to experience the real gun-slinging). The freedoms and anonymity we enjoy online are, however, constantly under scrutiny, by both governments and businesses alike.

At the heart of the issue many have with the internet in its current form is the aforementioned anonymity. That freedom is in no small part is guaranteed by the First Amendment, but it comes in direct conflict with the distinctly gray legal areas the internet seemingly creates with ease.

On the surface, online freedom of speech seems simple enough. The words inscribed within the First Amendment appear to be fairly straightforward in covering the topic:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free 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.”

We see all of those freedoms expressed on the internet with stunning regularity. Religious websites of all kinds abound; people can and do say almost anything, sometimes with reckless abandon; newspapers are now surviving almost exclusively because of their internet presence; social media websites and online forums allow anyone to “assemble”; websites, such as petitions.whitehouse.gov, exist to streamline our legally-required right to petition the government.

Yet much of what happens on the internet falls more specifically under the broad concept of “free speech”. However, the definition of “speech” has expanded in the past 200 years to now include far more than just written or spoken words. Actions themselves can constitute free speech. This broad definition makes interpreting the freedoms, and subsequent limitations, all the more vague as some actions are certainly harmful to others in ways that infringe on their rights.

According to USCourts.gov, the First Amendment does not cover:

--Words or actions meant to incite violence or that influence others to commit acts of violence (including “fighting words”) (Schenck v. United States, 249 U.S. 47 (1919))
--Libel and slander (New York Times Co v. Sullivan, 376 U.S. 254 (1964))
--Child pornography (New York v. Ferber 458 U.S. 747 (1982))
--The creation or distribution of obscene materials (Roth v. United States, 354 U.S. 476 (1957))
--The burning of draft cards as an anti-war protest (United States v. O’Brien, 391 U.S. 367 (1968))
--Students printing articles in a school newspaper over the objections of the school administration (Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988))
--Students who make obscene speeches at school-sponsored events (Bethel School District #43 v. Fraser, 478 U.S. 675 (1986))
--Students who advocate illegal drug use at a school-sponsored event (Morse v. Frederick, 200 U.S. 321 (2007))

There are more, to be sure, but note that the limitations on free speech are almost always specific to particular cases that don’t directly or exclusively involve the internet. For the web, “inciting violence” and “distribution of obscene materials” easily apply, although these two instances are still legally vague. What, for example, might be considered “obscene”? And to what extent is someone responsible for the independent actions of other people who respond to their words in unsavory and violent ways?

Even still, free speech online is coming face to face with other legal issues, such as copyright laws written into the Digital Millennium Copyright Act (DMCA) and filesharing. Filesharing sites and those who utilize them have taken on increasing amounts of scrutiny. In the U.S., in particular, the cross section of free speech and filesharing come together under the shadow of the First Amendment. Do file sharers have the right to First Amendment anonymity? Or do copyright holders maintain the right to reveal and pursue those who are illegally sharing their content? And perhaps an even bigger question: How do either of these issues fit under the purview of the First Amendment in the first place?

Different groups of internet denizens have different concerns when it comes to First Amendment rights on the web. Journalists must be concerned about what they publish and about the potential for libel; social media users must worry about the consequences of what they say or share online, as well as the privacy of that material; content creators must worry about whether what they create and share may be considered obscene; all internet users must be cognizant of net neutrality and the implications of its loss.

Much of the internet freedom debate deals directly with copyrights holders’ desires to locate and sue those who share files illegally, and around what is and is not considered hateful and violent speech that moves a step too far in the wrong direction. However, the very scope of the internet covers all facets of free speech, and in many ways, expands the boundaries and definition of the First Amendment.

Free speech online is not as free as you think

The First Amendment and the internet are currently at odds with each other. This may seem counter-intuitive, as many consider the internet to be the last, best hope for real free speech, but as Susie Cagle so eloquently states in her Pacific Standard piece, “No, You Don’t Have Free Speech Online“:

“On one hand, we expect these walled gardens to protect us from invasive government spy programs, and we’re outraged when they don’t. On another, we expect them to act as a public utility, an arm of government, protecting our constitutional rights. But Twitter can ban whoever it wants. Twitter has no responsibility to free speech.”

In truth, the internet is only at such odds with free speech due to what the Sunlight Foundation’s Christopher Gates writes is our continued use of the internet’s “walled gardens”, or privately-owned social media websites like Twitter and Facebook. In his “Eulogy for Politwoops“, Gates explained: “Our shared conversations are increasingly taking place in privately owned and managed walled gardens, which means that the politics that occur in such conversations are subject to private rules.”

Therein lies the problem. Yes, the First Amendment applies online, just as it does in regular written, personal, religious, and political discourse. But one of the key limitations of the internet lies less in what we can say, but where we choose to say it. Does this mean the First Amendment comes screeching to a halt when we hop online? Not necessarily. But we engage each other through the internet primarily via private websites, not public ones, so the First Amendment, to no small degree, is far from a protected “free speech zone”.

Instead, the Internet a more akin to a public highway criss-crossing private properties. We could choose to stop on the highway, but we won’t find much benefit in that if we do. After all, the highway itself has nothing to offer us; the destinations it helps us reach, however, provide value.

This, of course, raises a very concerning question: Where are the internet’s actual free speech zones? E.g., are there any websites that are government owned or free from private rules, in which Americans can engage each other, or where we can express our thoughts, ideas, and beliefs, without the looming specter of getting voted off the island?

Not really. And that’s a problem.

That said, the First Amendment and online free speech concerns impact and cover different groups in different ways.

Free speech for all internet users

For your average internet user, free speech concerns typically involve the following:

Copyright infringement
Comments and material posted on online forums and social media websites
The fluid definition of “obscenity”
Let’s look at each of these issues individually, and how to stay on the right side of the First Amendment.

Online copyright infringement

This is one issue with no easy answer. Copyright infringement relates to the sharing and acquisition of copyrighted, intellectual property without attribution or compensation to the correct owner. There are a lot of ways your average Internet user can come face-to-face with this issue.

One of the first examples of this problem on the Internet cycles back to 1999, when the popular music sharing application, Napster, was sued by the Recording Industry Association of America (RIAA) for copyright infringement. The case could be seen as one of the defining points for copyright infringement online, considering the RIAA later sued more than 200 Napster users over copyright infringement as well.

Some arguments on the issue maintain that digital copyrights are counter-intuitive, and that copyrights were originally crafted to create scarcity for limited materials. This leads to the idea that copyrights for digital materials, which in essence are or can be unlimited, inhibit free speech. One can find such an argument published by the LA Times, and the Electronic Frontier Foundation, among others.

The issue is overly complex with no clear definition, but consecutive court rulings do make one thing certain: The government is more likely to land on the side of copyrights holders than file sharers. And that’s not just the companies involved. That includes people who use file-sharing services. Interestingly, however, the DMCA, the very law intended to protect copyright holders in a new digital age, in some ways actually inhibits their ability to prevent the spread of copyright infringement due to the “safe harbor” clause.
 

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