The Internet and the Right to Freedom of Speech

"Any departure from absolute regimentation may cause trouble. Any variation form the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on campus, that deviates from the views of another person may start an argument or cause a disturbance. But our constitution says we must take this risk, and our history says that it is this sort of hazardous freedom- this kind of openness- this is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society" -Tinker, 393 U.S. at 508-9 (Dacus, 2007).

The issue of freedom of speech is not new to American culture. In fact the right has been discussed for generations and generations in and out of congress and has touched the lips of nearly every American adult at some point in their lives. However, free speech and the Internet are another story. Although not entirely new, the issue of freedom of speech on the Internet has gradually become a larger and larger deal in society and government as computer technology advances. One of the biggest problems is that while the protection of free speech has been made clear in verbal and print works, the protection becomes askew where the issue of the Internet is concerned.

In an effort to understand free speech on the Internet one must comprehend free speech off the Internet, in its more traditional forms. The United States Constitution was established in 1787, however it lacked some of the most important rights Americans enjoy today (Barker, 2005). In an effort to expand upon the document that framed the United States, as we know it, Congress adopted the first ten amendments to the Constitution, known as the Bill of Rights, in 1791 (Barker, 2005). The First Amendment is one of those adopted to further the rights of the people it protects, which reads as follows: "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"("First Amendment of the Bill of Rights to the United States Constitution," 2007). The first amendment has been expanded upon by the courts multiple times since its adoption but has never lost its original intention.

There are a couple differences from Internet communication and verbal or print communications. The lure of the Internet as a medium for free speech is, in part, its ease of accessibility, in addition to its free exchange of information, ideas, creativity, and the utter anonymity it offers its users. Moreover, the Internet can give global accessibility to people, products, businesses, and organizations worldwide. Hilden (2002) notes that traditional forms of communication such as newspapers or local news channels have a limited number of viewers they can reach on daily basis, the number can fluctuate slightly but will never drastically change. The opposite is true for publications and postings to the Internet however. The Internet as a whole was designed for the exchange of information among people all over the world and is limited only by the rules that govern each country the information is coming from.

Freedom of speech, in the United States, is one that has been protected and upheld by courts around the country since its implementation in 1791, but it is important to mention that not all speech is protected under the first amendment. Reynolds (2007) explains, "obscene speech, defamation, incitement of panic, incitement to crime, 'fighting words,' and sedition" are among those unprotected by law (147); speech on the Internet must follow these guidelines as well, but has proven more difficult to police. Both congress and the courts have made countless efforts to try to effectively limit offensive or detrimental speech on Internet while still retaining the first amendments original purpose. In fact the United States has proven to be unique in the way it interprets peoples right of free speech. The U.S. State Department has vocalized its opinion about the topic stating "the freedom of expression on the internet is part of general, basic human rights" (Kaufman, 2007). However, the U.S. is just about the only country that sees it that way, the majority of the rest of the world has strict rules on what will and will not be tolerated as far as speech on and off the internet is concerned. Shor (2005) describes a new ban put in place by China in order to regulate online journalism. Another example of Internet censoring is the case of an Egyptian blogger who was prosecuted over the content of his comments made online (Kaufman, 2007).

However, the American government has become increasingly weary of the dangers of the Internet on children who are too young to view some of the more questionable content, such as pornography, available on the Internet. Though pornography on the Internet is not illegal there are some very strict laws regarding its business practices. The CAN-SPAM Act was put in place to discourage the distribution of pornography (Reynolds, 2007, p. 159). Like wise there are many different laws surrounding the storing and viewing of pornography in the work place; and strict punishment for the production, distribution, and possession of child pornography (Reynolds, 2007, p. 159). Punishment for the above offenses varies by degree and number of offenses but can be very serious.

Several acts have been passed by congress within the last ten years in an attempt to limit children's exposure to pornographic and offensive material. The first was The Communications Decency Act (CDA) in 1996, which was struck down by the Supreme Court in 1997 and declared unconstitutional (Reynolds, 2007, p. 149). The Center for Democracy and Technology (2007) note the decision to overturn the CDA afforded the Internet the "same free speech protection as print." The main problem with the act was that is was extremely vague in what was considered indecent material, essentially prohibiting classic works of literature and art to be posted on online (Center for Democracy and Technology, 2007a).

The 1998 Child Online Protection Act (COPA) was the next legislation proposed to protect children from material deemed to be detrimental to their overall health (Reynolds, 2007, p.149). The Center for Democracy and Technology (2007b) explain "The Child Online Protection Act makes it a crime for anyone, by means of the World Wide Web, to make any communication for commercial purposes that is 'harmful to minors' unless the person has restricted access by minors by requiring a credit card number." The punishment for violations of the act could be both civil and criminal in nature (Center for Democracy and Technology, 2007b). COPA, like the Communications Decency Act, was later declared unconstitutional in June of 2004 (Reynolds, 2007, p. 150). Leaving congress once again without a censorship program for a child's online activity.

In the midst of the downfall of The Child Online Protection Act, Congress devised a new plan to protect America's children. The Children's Internet Protection Act or CIPA was put in place in 2000 (Reynolds, 2007, p. 151). This act varied from the last two, in that it involved Internet filtering in "federally financed schools and libraries" to limit children's access to obscene and harmful material while using the computer resources (Reynolds, 2007, p. 151). After a difficult first three years the act was eventually affirmed as constitutional and required schools and libraries to use Internet filtering software and comply with the rules laid out by CIPA (Reynolds, 2007, p. 153).

Child protection legislation is only one of the free speech limitations Internet users should be aware of. Another free speech violation on the Internet is called defamation or more specifically libel. Oran (2000) defines the two as "transmission to others of false statements that harm the reputation, business, or property rights of a person. Spoken defamation is slander, and written is libel" (p. 88). The anonymity characteristic of the Internet only works to exacerbate the issue by giving users the confidence to voice their opinions and criticize corporations, businesses, government entities, schools, government officials, or public figures, such as celebrities (Reich & Kenworthy, 2007). Libel is a serious issue both on and off the Internet and has varied levels of punishment depending on the seriousness of the offense. Reich & Kenworthy (2007) describe that, "more than fifty libel lawsuits have been filed over the past years stemming from online postings" (as cited in USA Today, 2006). It is of the utmost importance that Internet users be aware of the factual and legal basis of all their postings before they are placed in a public forum for viewing.

Hate speech on the Internet is a controversial issue among legislators and citizens alike and has created a lot of talk about its legality on the web. Typically, the idea of freedom of speech and peaceful expression usually trumps ones opinion that a racially charged slur should be banned. In general, if the speech is protected off the Internet it is protected on the Internet as well. Reynolds (2007) explains that hate speech is only prosecutable if it graduates to blatant "threats and intimidation" against a particular person (157). In a bold effort to support this view and the first amendment, the United States Justice Department declined to support a European ban on "acts of a racist and xenophobic nature conducted through computer systems" (Madigan, 2002). Unfortunately, like libel, hate speech is becoming increasingly difficult to police when the speech does cross the line because of the anonymity available to its users.

Cyber terrorism, unlike hate speech, is unprotected by the first amendments right to free speech. The problem is gradually on the rise in every country around the world and more and more emphasis is being placed on combating the mounting risks. During a conference in 2000 Senator Charles E. Schumer urged America to get "our nation's cyber security affairs in order" and noted that America is one of the most "technologically vulnerable" countries in the world (Schumer, 2000). An issue that is particularly disturbing because America relies so heavily on computer technology in business and everyday life.

In essence the right to freedom of speech is a basic human right that Americans enjoy on a daily basis, but many people all over the world are not so lucky. The Internet has become a positive medium for both Americans and non-Americans alike to speak their mind and voice their opinions. Though restrictions apply and rules regulate what can and cannot be said, the Internet remains a major technological advance that allows the transmission of information and news that would previously only be heard by a select audience.

References:

American Library Association. (2007). First Amendment of the Bill of Rights to the United States Constitution. Retrieved Nov. 11, 2007, from http://www.ala.org/ala/oif/firstamendment/firstamendment.htm

Barker, R. S. (2005). Free Speech in America: An Overview. Democracy Dialogues: Freedom of Speech. Retrieved Oct.21, 2007, from http://usinfo.state.gov/dd/democracy_dialogues/freedom_speech/free_speech_essay.html.

Center For Democracy & Technology. (2007a). Communications Decency Act (CDA). Retrieved Nov. 7, 2007, from http://www.cdt.org/speech/cda/.

Center For Democracy & Technology. (2007b). Child Online Protection Act (COPA). Retrieved Nov 7, 2007, from http://www.cdt.org/speech/copa/.

Dacus, B. W. Esq. (2007). Hearing on HR 1592- Local Law Enforcement Hate Crimes Prevention Act of 2007. Retrieved Oct. 19, 2007, from http://www.judiciary.house.gov/media/pdfs/Dacus070417.pdf.

Hilden, J. (2002). The First Amendment and the Internet: Why Traditional Legal Doctrines Apply Differently in Cyberspace. FindLaw: Legal News and Commentary. Retrieved Oct. 21, 2007, from http://writ.news.findlaw.com/hilden/20020416.html.

Kaufman, S. (2007). Free Speech on Internet a Basic Human Right, United States Says. U.S. Department of State: International Information Programs. Retrieved Oct. 19, 2007, from http://usinfo.state.gov/xarchives/display.html?p=washfile-english&y=2007&m=February&x=20070222153604esnamfuak0.2887384

Madigan, M. (2002). Internet Hate-Speech Ban Called 'Chilling.' PC World. Retrieved Oct. 19, 2007, from http://www.pcworld.com/article/id,107499-page,1/article.html.

Oran, D. (2000). Law Dictionary for Non lawyers: Fourth Edition. Albany: West Thomson Learning.

Reich, J. F. & Kenworthy, B. (2007). Online Libel. Internet & First Amendment. Retrieved Oct.19, 2007, from http://www.firstamendmentcenter.org/speech/internet/topic.aspx?topic=online_libel&printer-friendly=y.

Schumer, C. E. (2000). Schumer Calls for Increased Cyber-Security Efforts During Keynote Address at Critical Infrastructure Conference. Retrieved Nov. 5, 2007, from http://www.senate.gov/~schumer/1-Senator%20Schumer%20Website%20Files/pressroom/press_releases/PR00308.html.

Shor, S. B. (2005). China Imposes New Rules on Internet Speech. E-Commerce Times. Retrieved Oct. 21, 2007, from http://www.ecommercetimes.com/story/46350.html.