Abstract
The United States is facing challenges in applying First Amendment principles from the 18th century to modern communications. This chapter examines cases where the government has intruded upon First Amendment rights. The first section examines when the government attempts to prevent protests by cutting internet access. This amounts to a digital gag and ear plugs for the protesters. Aside from cutting access to a single area, some governments have access to total internet “kill switches.” This allows unsurpassed censorship of speech. Now there are technical means installed in most phones that could allow governments to disconnect internet access at the individual phone. In the area of social media, the courts are struggling to identify what constitutes speech. For example, when is a “like” or a “wink” speech? Equally important, when can a political figure censor speech through blocking users on social media? These cases represent warning signs that the United States, just like other countries, is struggling to adapt eighteenth century legal principles to modern communication.
TopIntroduction
According to the International Telecommunications Union, 3.9 billion people are online. That represents the majority of the world’s population. The ITU notes that growth in developing countries is reaching saturation while there is still “ample room for growth” in least developing nations. (International Telecommunications Union, 2018). The ability of so many people to communicate, share ideas, and organize is unprecedented. Along with this interconnectedness comes the power to challenge governments. Although the United States has long protected political speech and the right to organize protests, the digital age has provided a platform that was unfathomable when the founders created the United States. The government is struggling in applying the concepts of freedom of assembly and speech to situations made possible by digital communications. Ultimately these tensions end up in the legal system and courts are trying to define how these concepts apply considering all of the technical advancements in communication.
Advancements in technology have made the speed and scale of communication jump exponentially. Although technology has eroded privacy, it has also made it possible for people to share ideas and organize protests against the government at unprecedented speed and scale. To what extent are these fundamental rights scalable? Are they absolute or do they need to be modified given the scale and scope of communications?
When the founders of the United States incorporated the fundamental principles of freedom of speech and assembly into the US Constitution, they understood the importance of these rights in a democracy. Although these rights are essential to a democracy, they also pose threats to a government as they give power to the people to affect change. This tension between what is best for a democracy and what is best for a current regime underlies many efforts by governments to curtail these rights in order to maintain power. The Constitution protects the rights of people to organize and protest the government and share their ideas with others.
The United States Constitution provides “Congress shall make no law...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” (Amendment I).
Key Terms in this Chapter
Speech: Under the law, speech is much more than words that emanate from one's mouth. Written words, symbolic expressions, sit ins, wearing arm bands, burning flags, and liking a page on Facebook all have been found to be speech under the law. This encompassing idea of speech is important because the law extends constitutional protections only when something is characterized as speech.
Marketplace of Ideas: This is a concept relating free speech and democracy. The idea is that lots of different opinions and facts will be shared in a virtual marketplace. The best ideas will come forward and become policy. The best marketplace is one where all actors have free access to express themselves. Only through this free exchange of ideas will the best ones mature into policy.
Prior Restraint: This is a type of restriction on speech that occurs before the speech itself happens. For example, the government seeks to prevent publication of an article exposing government corruption. Since this is an attempt to prevent speech from happening courts apply particular scrutiny to these situations.
Facebook “Like”: On the social media website Facebook, users have the option to click a thumbs up icon and “like” any post or page. When they do this, they are signaling their support or interest in the subject. For example, one might “like” the page of a favorite candidate or a funny video of a cat. When one “likes” a page this information is recorded as support and the page appears in the person's own timeline. This act of liking is speech in itself.
Time, Place, and Manner Restriction: The courts distinguish between content-based restrictions and neutral restrictions. Content based treats different content differently. For example, banning graphic nudity in public areas is an example of a content-based restriction. A neutral restriction is one that treats all speech equally regardless of the content. Time, place, and manner restrictions are examples of content neutral regulations. For example, a state may ban billboards over a certain size to protect the aesthetic beauty of the land. This is an example of a neutral restriction on the manner of speech. Courts apply a much lower standard when examining a neutral time, place, or manner restriction then when examining a content-based restriction.