Ed Zuger

Whenever I get to the point in a course where I discuss First Amendment free speech rights in the internet age, it challenges the students and me to wrestle with the concept. This is a particularly sticky wicket when it comes to speech online that has the propensity to harm others. Think cyberbullying or cyberstalking, both terms that without the "cyber-" prefix you probably understand. Apply their respective cyber-counterparts and you get the new versions of these age old harassment techniques.

The dilemma, which is certainly not new to the digital age, is how far does the law afford free speech to go? You're reading my speech about this in a forum directly benefitting from the protections under the First Amendment. By implication you care about free speech in America. Whether you buy into the so-called fake news trope that's become part of the political climate, I believe that you care about the Constitution and its protection of free speech, if for no other reason than you appreciate this outlet and the journalists who bring society's stories to your front door (or dentist's office, or web browser).

The phrase that comes to mind on the side of limiting free speech is "words hurt." Do they? Well, the U.S. Supreme Court, and the American legal system at large believes that they can. That's why the First Amendment rights are not limitless, and why, as one of the most commonplace scenarios instructs us, you shouldn't yell "Fire!" in a crowded theater. If you're familiar with that once illegal speech, you may be surprised to learn that the law no longer sees that exact scenario as criminal. The case of Schenck v. United States was a landmark 1919 case before the Supreme Court, though it was not about pranking theater goers into rushing the exit doors. Instead, the case surrounded the Espionage Act of 1917 where fliers were being passed out to draft-age men urging them to resist the draft. The distributors were arrested for speech that intended to cause those men to commit a crime, namely dodging the draft.

The unanimous opinion, drafted by Justice Holmes, ordered the criminal conviction to be upheld and effectively limited the freedom of speech in America. The circumstances of war, the Court wrote, were such that the restriction being debated was justified. In the same manner, Holmes opined, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." That speech would cause a "clear and present danger," as did the fliers encouraging men to avoid their war service.

For the better part of the 1900s our First Amendment rights were limited under the clear and present danger standard. Until, that is, the Ku Klux Klan was enveloped in the fight. During a televised rally from Ohio, the KKK called for "revengeance" against various minorities and their champions. Prosecutors believed that it created a clear and present danger of violence, and arrested the leader, who ultimately was heard again before the Supreme Court. In 1969's Brandenenburg v. Ohio, the Court reversed its 50-year-old standing on the subject. It narrowed the limitation from "clear and present danger" to a standard of speech posing danger of "imminent lawless action." In sum, the Court saw the KKK's advocacy of revengeance as encouraging lawlessness, but also as contributing to our marketplace of ideas. There, the First Amendment protected the KKK's "advocacy" so long because it promoted general, indefinite lawlessness. The Court compared that if the KKK had told its followers to conduct specific criminal actions, especially violent crimes, that speech would not be protected. It would promote imminent lawless action.

Fifty years later again the speech environment has evolved tremendously. There are countless, sometimes heart-wrenching, stories of speech leading to tragedy. Online harassment has caused or been discretely involved in suicides, murders, and other calamities. Along the way the courts have been wrestling with the forces of our Constitution and the effects of speech. In 1997 another critically important case helped us further hone those forces and freedoms. In Reno v. American Civil Liberties Union, the Rehnquist Court was faced with a dispute related to the 1996 Communications Decency Act, a law that generally was meant to protect minors from "obscene or indecent" speech online.

The Act made it criminal to intentionally transmit one's expression of material that was deemed "offensive" by community standards. Hmmm. There's a bunch of words, normally protected by the Constitution, that are tough to interpret: "obscene," "indecent," "offensive," and even "community standard." What do they mean? When and where do they mean that, contra all other meanings? You can start to see why this topic will forever be debated in society and the courts. And, that's exactly what the Supreme Court saw as being, bluntly, illegal about the Act. The law violated the First Amendment because it failed to further define or describe what those characteristics of speech mean. It also didn't apply the limited speech mandates to only minors, or only during specific times. That was a unanimous decision. As much as Schenck framed our Constitutional rights, so then did Reno v. ACLU, only the latter was important because it addressed this new mode of communications online.

Cases that contend with such a lofty goal of protecting our communications rights, all while prohibiting speech that incites violence, will continue to be part of our story. The Court will continue interpreting this American law that countless other societies have since followed. Generally, and firstly (and, maybe unsurprisingly), I default to protecting all speech. If you see otherwise, I welcome your expression of the idea to my inbox, below.

Ed is a professor of cybersecurity, an attorney, and a trained ethicist. Reach him at edzugeresq@gmail.com.

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