Freedom of Speech, a concept many Americans take for granted, provides basic fundamental liberties while drawing many challenges in the modern day. The First Amendment covers Freedom of Religion, Freedom of Speech, Freedom of the Press, Freedom of Assembly, and Freedom to Petition.
Be sure to understand that the Bill of Rights and Constitution serve as protection from our government and outside threats to our government. These rights do not always extend directly to your interactions with other individuals and private corporations.
Amendment I
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.
Understanding The First Amendment
The First Amendment is arguably the most complex Amendment in the Bill of Rights. Each type of protected speech carries unique value to this day. These 45 words break down into six clauses covering five areas, which I explain in detail on the following links due to their complexity.
- Freedom of Religion
- Establishment Clause
- Exercise Clause
- Freedom of Speech
- Spoken word
- Written word
- Symbolic actions that express ideas
- Freedom of the Press
- Right to Assemble
- Right to Petition
Modern Day Challenges
Over 200 years later, the First Amendment is continuously faced with new challenges our Founding Fathers could not have imagined. Today, we have a heated political climate combined with widespread use of technology that allows us to interact with others worldwide. Online, offline, and on the news, Americans deal with several challenges relating to our right to free speech.
Technology
In 1997, the Supreme Court ruled in Reno v. ACLU that speech on the Internet, like print media, would be fully protected under the First Amendment. This ruling separated Internet speech from the greatly regulated areas of broadcast television and radio. Courts view the Internet as a public place and, therefore, must grant the same protections.
Smartphones
Many Americans carry a smartphone containing text messages, apps, and emails. Our pockets equipped with GPS technology and potentially all of our personal information. This technology streamlines our lives while opening the door to government interference (also related to 3rd Amendment). In 2016, using First Amendment protection, Apple refused the FBI’s request to write code allowing them a backdoor into iPhones messaging system. Some call this a weak argument, but Apple argues it as writing code it does not choose to compelled by the government.
In the landmark case decision, Commonwealth (Massachusetts) v. Carter, the court ruled that words kill. The defendant, Michelle Carter, affirmed responsible for the suicide act of Conrad Roy III. As a result, the court found Carter guilty of involuntary manslaughter. This decision sets the precedent of guilt on a defendant’s whose conduct completely overwhelms the victim’s free will.
Social Media
As previously stated, the decision in Reno v ACLU granted online speech First Amendment protection. Consequently, comments and status updates fell nicely into this category. Years later, on September 18, 2013, the Fourth Circuit Court decision in Bland v. Roberts ruled clicking the like button to be a protected form of speech.
In early 2018, headlines over privacy concerns surrounding social media drew national attention. Mark Zuckerberg, the founder of Facebook, testified in front of Senate and Congress regarding a privacy breach from 2015. In this meeting, politicians questioned Zuckerberg and Facebook’s infringements on Free Speech. Two days of scrutinizing the Facebook platform resulted in the admission of some suppression and blocking of hate speech to political censorship to the removal of alternative news. Ultimately, several politicians credited Facebook with policing thought beyond an acceptable level.
Increased cyberbullying, particularly that of children, resulted in a series of laws punishing online bullies. However, appellate courts and Supreme Courts now must backtrack some of these decisions. Cyberbullying relates to speech, more than conduct diversifying it from regular face to face bullying. As a result, school administrations find themselves in legal predicaments. If the school acts, they may violate the First Amendment. If the school does not respond to genuine threats, the school could be held accountable.
Search Engines
When it comes to search engines, the lines blur. Should search engine companies exist as neutral platforms or as content editors? The code used to pull search results varies by the search engine, the code arguably free speech. Anyone with a website worries about SEO (Search Engine Optimization). SEO determines where you rank in results with Google, Bing, Yahoo, etc. The average person uses terms like “searching” and “googling” interchangeably. It is safe to say; Google is THE standard right now in search engines.
On the other hand, computer and Artificial Intelligence suppression of results based on the company’s coding gains mixed emotions. Should these companies determine which information is most useful or valuable? Are they using people’s ignorance of alternatives to push their preferred products and opinions? If the results show bias, should the company have to let it’s users know about the skewed results? Time will certainly tell, but, hopefully, these concerns stick in the back of your mind.
Telecommunications and Internet Service Providers
For some time, telecommunication companies accepted their neutral platform status as protection from user violations. They provide the platform and do not concern themselves with how their users use it. When you make a call, you do not worry that someone is censoring your speech.
In 2017, the FCC repealed net neutrality opening the door for Internet Service Providers (ISPs) to control content. Many of the concerns surrounding the net neutrality repeal are unlikely to hit the market. The reversal allows ISPs to charge variable rates, create fast lanes, and block content, but none of these make sense long term for a company and effect neutral platform status. Many other regulations under the same now repealed bill created barriers to entry into the market. Ultimately, the concern is legitimate but highly unlikely, and states can draft new proposals to replace the old one.
Audio and Visual Platforms
The complicated matter of copyright infringement, essentially stealing the work of others without permission, grows as an issue. The ease of sharing and redistributing content blurs lines and confuses many. The Association of Research Libraries came up with this comprehensive history of copyright laws. Content creators for all mediums find trouble getting clear answers. When in doubt I recommend seeking legal advice from an intellectual property lawyer. Public domain works and fair use laws allow creators to utilize existing materials. Still, false claims and misuse continue.
Rights of Photographers vary depending on whether they photograph on a public or a private property. In public spaces, photography acts as a form of public oversight, both, valuable and necessary to a free and open society. Police cannot confiscate, view, or delete digital photography without a warrant, including cell phones, unless under specific extreme (“exigent”) circumstances.
Videography, on the other hand, differs due to the audio content. Wiretapping laws come into play in this case. Essentially, “bugging” of private conversations is prohibited. In contrast, conversations in which you are an active party may be recorded without consent since the law requires only one willing party.
On private property, First Amendment protection does not apply as broadly. The owner maintains the right to limit or restrict photography and videography. Violations of the owner’s request may result in police detention for trespassing.
Offline Communities
All forms of speech, including hate speech, have subjective or objective forms. Subjective speech most easily described as someone’s individual opinion; often considered biased and situational. In contrast, objective speech has factual basis, not feelings; making it unbiased. In the muddied waters of subjective versus objective hate speech, a solid legal footing remains hard to find. Most hate speech appears to be opinions differentiating it from libel or slander. Regulations only exist where the speech causes actual harm, danger, or incites violence.
In Its Various Forms
Violent protests at public speeches often are incited by the words and actions of protestors, not the speaker. Protesters showing up with the intent to create a violent reaction could be doing so in an effort to falsify the speaker’s words as objective hate speech. Every case is different, but legitimate public speakers would not risk the legal repercussions of openly using hate speech.
Racial slurs seemingly fall into the subjective category deemed hate speech depending on how the words were used or who used them or to whom. Most find it acceptable for members of a respective group to use terms that individuals not in that group may not. This counterproductive behavior keeps the slurs in everyday use. The 14th Amendment guarantees all individuals the same rights, so one could argue that any group’s free use of specific terms makes it acceptable for all to use.
California and New York recently implemented transgender pronoun laws. In New York, employers and landlords may be fined for using incorrect pronouns. The California law, Senate Bill 219, protects senior aged individuals in long-term medical or residential care from repeatedly being subjected to the wrong pronouns by medical staff. Looking at this objectively, most adults today grew up in a time where male and female pronouns were taught and used. Understandably, people may choose to intentionally not use preferred pronouns to aggravate, but in other cases, it would be unintentional or habitual. Part of our free speech rights includes exercising our beliefs, which may exclude the use of the new preferred pronouns. Also, both of these laws relate directly to speech on private property.
College Campuses
Around the country, college and university campuses minimize student’s First Amendment rights to small “free speech zones.” Through bureaucratic policies, these schools establish highly restrictive speech codes. Under these codes, students and faculty limit, block, and dis-invite speakers, most commonly those with Conservative views. In effect, safety is now equated with the right to always feel comfortable. Suppression of speech, otherwise known as political correctness, trigger warnings, and microaggressions more common than candor all in order to free students from speech that results in a negative emotional response.
Under pressure from students and the Foundation for Individual Rights in Education (FIRE), Florida, Virginia, Missouri, Arizona, Kentucky, Colorado, Utah, North Carolina, and Tennessee banned free speech zones on college and university campuses statewide. A national bill, introduced by Senator Orrin Hatch, is in the works while other states drag their feet allowing campuses to limit student’s First Amendment rights.
Reportedly Objective But Skewed Vs. Openly Partisan News
To many, mainstream outlets with long histories are deemed to be more accurate than smaller news firms. Six companies own the vast majority of news outlets and most commonly have a liberal bias. The media outlets claim and portray themselves as non-partisan, but the slant is evident. With the rise of the Internet and social media, smaller partisan groups now have a platform to spread alternative thoughts and positions on current events. As a result, major news companies seem threatened by these other sources, so they work hard to discredit and hurt reputations. In general, no one news outlet lacks flaw in their reporting, but often viewers do not question legitimacy when it comes to the majors.
The lack of proper journalism in conjunction with social media commenting appears to be dividing the nation. Many people jump to conclusions and, for lack of a better word, attack people with whom they believe they disagree. As a result, misunderstandings and assumptions generate hatred and name-calling.
Regardless of the challenges, an open and free press is undeniably valuable. However, the rush to report breaking news runs the potential of negatively impacting an individual’s opportunity for a fair trial. Increasingly, news outlets report stories with shaky anonymous sources and unvetted information. In the eyes of millions of national and international viewers, reports portray individuals as guilty before their day in court. Journalists use precise words like alleged, not yet confirmed, and the like. Unfortunately, those words are overlooked or ignored by many.
Be Responsible For Your Words
In summary, individuals hold responsibility for their words and actions. Without a doubt, society does not benefit from significant governmental restrictions regarding free speech. Speech protected under the First Amendment relates to government regulation, but individual cases in civil court may result in different outcomes. Indeed, being cognizant of the grey areas in First Amendment allows us to better utilize our right and freedom.
Thinking independently allows us to discover what we do not know. We must retain the freedom to be the only person who believes something. Above all, to think, we must be willing to offend.
We would love to hear from you. What limitations on these civil liberties do you believe exist or should exist? Let us know what you learned from this article in the comments below.
Links:
Bill of Rights – Preserving Freedom Breeding Progress
