Free Speech and New Frontiers
Free Speech and New Frontiers
The internet, for better or worse, is forcing society to determine the limits of free speech. Several high-profile cases have illustrated the dangers of an unregulated internet. As a result federal, state and local authorities have sought means for increased control. Those who favor increased regulation of speech on the internet believe the harm of unrestricted free speech outweighs the benefits. Those who favor complete freedom of speech cite the First Amendment of the Constitution. They believe that nearly all internet speech is protected. Attempting to censor this speech would be both ineffective and counterproductive.
Society will always have to find its own balance between free speech and protection. As the internet continues to grow exponentially, this issue will be revisited in perpetuity. Exerting some form of speech control on the internet is more of a political statement than an effective policy. The founding fathers provided the best remedy to vile and detestable speech – more speech. The Constitution and the Computer The writers of the U. S. Constitution could never have anticipated the development. They did, however, write deliberately vague protections of freedom of speech and other rights.
In the Bill of Rights they wrote: “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…” (EPIC, 2002). In the years since, the courts have made more specific interpretations of this law as cultures change and new issues arise. Even before the internet, there was a well-established right to anonymity. In other words, an individual has the right to write and publish works critical of the government while protecting his or her own identity. The internet has provided a unique opportunity for just such commentary.
It provides an opportunity for anyone to participate in political speech. It also provides an outlet for hate-oriented speech, pornographic speech and speech that might otherwise fall under slander or libel laws were it not for the anonymity of the internet. Despite a trend toward regulation of the internet, courts have been hesitant to erode free speech protections. In a ruling typical of cases that challenge anonymity; “[the] New Jersey appeals court has established stringent procedural and evidentiary standards that must be met before the identity of an anonymous online poster can be disclosed through litigation” (EPIC, 2002).
The ebb and flow of culture at any given time will determine the limits of freedom of speech on the internet, if any. The landscape is always changing. “The meaning of the First Amendment has continued to develop rapidly, in part because of changes in and the increasing importance of new technology” (EPIC, 2002). At the current time, the United States is regarded as one of the freest nations in terms of speech on the internet. For that reason, many foreign-based websites are hosted on U. S. servers. In that sense, the internet allows freedom that could not be had otherwise. There is a price that goes along with this freedom, though.
Society will have to decide, in the context of Constitutional protections, how much freedom of speech is enough. The Argument for Regulation The anonymity of the internet provides a potential danger to society. Racist speech can incite violence. Children can be lured into situations they are unprepared to handle. Consumers are exposed to fraud more so than ever. The rights of any one individual end where the rights of another individual begin. “’Congress shall make no law’ has never been interpreted by the Court as an absolute prohibition on government regulation of speech” (EPIC, 2002).
In all non-internet areas laws that protect society against criminal, defamatory and libelous actions have been passed and vetted in case law. The government can regulate speech on grounds of obscenity, fighting words or incitement. Despite the fact that case law is still behind the curve in terms of the internet, there is no reason why these protections shouldn’t extend there. The internet has enabled a more anarchic culture (Vaidhyanathan, 2004). The emergence of that culture means that risks to society voiced over the internet must be taken seriously. The specific reasons for internet regulation are numerous.
In a world where terrorism is an ever present risk, national security concerns dictate that the government must be able to censor sites that, for example, explain how to make bombs. Economic and information security are major reasons why networks of hackers should be censored. One hacker, with information gained from others can potentially do a tremendous amount of damage. Internet freedom in the United States has prompted some groups to base their websites there. “This is especially the case with neo-Nazi and other sites promoting racial hatred, since these are prohibited in a number of European countries” (Public Citizen, 2002).
Groups such as these provide a “clear and present danger” to society. The protection of children is a particularly compelling reason for regulating free speech. Horror stories about children coming into contact with predators over the internet have stirred governments toward action. Making an effort legislatively and technically, through filters and other means, is both just and effective. Even if all offensive speech cannot be banned from the eyes of children, the effort to do so sends a strong societal message. Freedom of speech comes with an inherent responsibility.
We have the right to political speech, protest speech and even speech that almost everyone would find offensive. When exercise of that right affects another’s right to “life, liberty and the pursuit of happiness” we then have the responsibility to regulate such speech. Freedom of speech is a well-protected and important civil right. It is not superior to other rights. The benefits of the internet are tremendous. Society has greater access to information. Free speech can be exercised to a greater extent than ever before. The vastness of the internet will still allow these benefits to be realized even with greater restrictions on speech.
The Argument against Regulation Regulating internet speech is both controversial and extremely difficult. The internet is a fragmented, worldwide entity. Technology to block certain speech has been created but questions remain about its effectiveness. Even those who enact legislation that uses such technology have concerns. In reference to a recent Child Internet Protection Act: “Congress approved CIPA even after its own 18-member committee rejected the proposal because of the risk that ‘protected, harmless, or innocent speech would be accidentally or inappropriately blocked’” (EPIC, 2002).
Regulating speech on the internet is much easier said than done. Filters are often obsolete from the time they are released. Authorities have tried in vain to block certain kinds of speech from children in particular. What has emerged instead is an environment where the targeted speech often slips through. At the same time, some other speech is unjustly affected. “The unique nature of the Internet highlights that a single actor might be subject to haphazard, uncoordinated, and even outright inconsistent regulation” (Laundy, 1997).
The fear for many is that government regulation of speech on the internet will become a political tool. According to the Educational Policy Information Center: “Far more troubling is when a filter appears to block legitimate sites based on moral or political value judgments” (EPIC, 2002). If government is given a foothold in regulating internet speech, it is only a matter of time before it usurps additional power. The internet is the ultimate expression of a free society. It is also a significant check on the power of politicians. Attempts to control internet speech could erode these benefits.
They are also likely to be counter productive, drawing additional attention to the speech they are trying to prevent. Analysis and Conclusion Our freedoms do not come free of charge. In the words of Robert H. Jackson: “The price of freedom of religion, or of speech, or of the press, is that we must put up with a good deal of rubbish. ” (Public Citizen, 2007). This has been a dilemma since the founding of the nation. Experience has shown that the best reaction to such speech is not to ban it. It is questionable as to whether effective regulation of speech on the internet can even be done.
While technology is developing at light speed: “any governmental regulatory regime would necessarily lag behind–and thus fail to effectively regulate–the rapidly developing technology” (EPIC, 2002). None the less, countries have forged ahead with attempts to regulate speech in a variety of ways. The most technically sophisticated regulation regime exists within the United States, where internet regulation falls under the same general rules as other broadcast media. The French, along with former communist bloc countries have taken a more proactive approach by manually examining internet content (Peng, 1997).
Singapore, a nation well known for censorship has adopted a multi-faceted approach to controlling content. The primary tool is an automatic content license granted by the government. Then, the government monitors content and pulls licenses as it deems necessary. China’s restrictions are similar to those of Singapore, but go much further. Germany has enacted specific censorship laws, while also holding web server companies to a higher degree of responsibility for violations of the law. Previous attempts at regulating speech have proven less than effective. In some cases, these attempts actually endanger other freedoms.
Even an act designed to protect children has serious flaws. “In addition to finding the CDA’s vagueness a fundamental fault, the Court also found its over-breadth unacceptable” (Laundy, 1997). In the unsure world of the exploding internet, the best course of action is to rely on basic principles that have stood the test of time. As Electronic Frontier Australia puts it: “the best remedy to be applied is generally more speech, not enforced silence” (EFA, 2002). Developers of filtering software and other censorship tools are in a perpetual arms race with web content developers.
It is the culture, though, that will either drive censorship or resist it. Peng writes; “Ultimately, each country’s regulation of the Internet is driven not by technology or law but by the culture–in the broadest sense of the word–of the society” (Peng, 1997). Society must carefully weigh the risks of censorship, however. In the same way that freedom of speech sometimes opens us to unwanted consequences; so too might the erosion of those rights lead to the erosion of other rights.
Electronic Frontier Australia (EFA). 2002. “Racial Vilification/Hatred”. Accessed 18 Dec. 2007 < http://www. efa. org. au/Issues/Censor/rv. html > . Electronic Policy Information Center (EPIC). 2002. “Free Speech”. Accessed 18 Dec. 2007 <http://www. epic. org/free_speech/default. html >. Electronic Policy Information Center (EPIC). 1999. Free Speech Perspectives on Internet Content Controls. Washington, D. C. : EPIC. Laundy, David. 1997. “Internet Speech Cases Cinch Broad Freedom”. Accessed 18 Dec. 2007 < http://www. loundy. com/CDLB/Free_Speech. html >. Peng Hwa Ang. 1997. “How Countries Are Regulating Internet Content”.
Accessed 18 Dec. 2007 < http://www. isoc. org/inet97/proceedings/B1/B1_3. HTM >. Public Citizen. 2007. “Miscellaneous Internet Free Speech Cases”. Accessed 18 Dec. 2007. <http://www. citizen. org/litigation/briefs/IntFreeSpch/cases/articles. cfm? ID=14275 >. Sikes, Alfred C. 2000. Fast forward: America’s leading experts reveal how the internet is changing your life. New York: William Morrow. Vaidhyanathan, Siva. 2004. The anarchist in the library: how the clash between freedom and control is hacking the real world and crashing the system. New York: Basic Books.
University/College: University of Chicago
Type of paper: Thesis/Dissertation Chapter
Date: 2 December 2016
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