The Good, The Bad, and The Unknown: Regulations on Free Speech
America has always been obsessed with free speech. It is a right given to us through the constitution and often touted and cited, but is it done so correctly? What is the extent of freedom of speech? As America has grown, new ideas and technologies have found their way into our lives. With these ideas and technologies come new challenges in applying the freedoms and rights we hold dear. Just as a toddler learns that the stove is hot when he touches it, America learns how to deal with certain aspects of free speech as a reaction.
Then
In June of 1917, Charles T. Schenck, the general secretary of the U.S. Socialist Party, believed that the draft was unconstitutional. America was entering World War One at the time and needed soldiers. Schenck believed that the draft that was implemented was 'involuntary servitude' and broke the thirteenth amendment. After passing out 15,000 leaflets outlining his ideas, he was arrested for breaking the Espionage Act which prohibited obstructing the recruitment and enlistment of the armed forces. He argued in the Supreme Court that he was expressing his freedom of speech, yet the court unanimously decided against him. Oliver Wendell Holmes, a supreme court justice, wrote of the decision: "Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent"
In 1964, Clearance Brandenburg, a prominent Ku Klux Klan leader in rural Ohio, invited a television reporter from Cincinnati, to cover a local Klan rally. At the televised rally, Brandenburg had several speeches, each was rife with words that incited violence against many minorities. Brandenburg was then arrested for advocating violence. In the supreme court, he argued that he was only expressing his freedom of speech. Again the court ruled against him, and in the Per Curium Justice William J. Brennen wrote: "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
While neither of these court cases really relate to technology, the rulings have held standards in the regulation of free speech. The "Clear and present danger" and "imminent lawless action" clauses are the tests against what can be legally and publicly said.
Then
In June of 1917, Charles T. Schenck, the general secretary of the U.S. Socialist Party, believed that the draft was unconstitutional. America was entering World War One at the time and needed soldiers. Schenck believed that the draft that was implemented was 'involuntary servitude' and broke the thirteenth amendment. After passing out 15,000 leaflets outlining his ideas, he was arrested for breaking the Espionage Act which prohibited obstructing the recruitment and enlistment of the armed forces. He argued in the Supreme Court that he was expressing his freedom of speech, yet the court unanimously decided against him. Oliver Wendell Holmes, a supreme court justice, wrote of the decision: "Words which, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils which Congress has a right to prevent"
Charles T. Schenck
In 1964, Clearance Brandenburg, a prominent Ku Klux Klan leader in rural Ohio, invited a television reporter from Cincinnati, to cover a local Klan rally. At the televised rally, Brandenburg had several speeches, each was rife with words that incited violence against many minorities. Brandenburg was then arrested for advocating violence. In the supreme court, he argued that he was only expressing his freedom of speech. Again the court ruled against him, and in the Per Curium Justice William J. Brennen wrote: "the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
While neither of these court cases really relate to technology, the rulings have held standards in the regulation of free speech. The "Clear and present danger" and "imminent lawless action" clauses are the tests against what can be legally and publicly said.
A Ku Klux Klan Rally in the 1960s
Now
Today we are challenged with a new type of speech that is so far unregulated: the internet. The internet has great uses in bringing people together and the free sharing of information, but it also has a dark side. From trolls to bullies to radical groups, the internet is a safe haven for people to discuss some of their most vile opinions. There have been several cases where people become radicalized in internet echo chambers that have gone on to commit terrible crimes in the real world.
Today we are challenged with a new type of speech that is so far unregulated: the internet. The internet has great uses in bringing people together and the free sharing of information, but it also has a dark side. From trolls to bullies to radical groups, the internet is a safe haven for people to discuss some of their most vile opinions. There have been several cases where people become radicalized in internet echo chambers that have gone on to commit terrible crimes in the real world.
One example of this is Gilberto Valle, also known as "The Cannibal Cop". Valle frequented chat rooms and websites devoted to dark fetishes, namely vore, torture, and rape. His wife, Kathleen, stumbled upon plans he made on these sites to kidnap, torture, and eat her. Valle was arrested and convicted on conspiracy to kidnap in 2013. Although Valle argued that the posts and messages online were only dark fantasies that he did not intend to act upon, he was still convicted. In an op-ed article in the Chicago Tribune, Noah Feldman, a professor at Harvard law says there is a high probability this the case makes its way to the Supreme Court.
This case raises questions on the impact of what we say on the internet. Does intent count when determining imminent lawless action or creating clear and present danger? If the supreme court rules that what we say on the internet can have real-world consequences, then the landscape of the internet will change forever. Things people said out of ignorance or jest could end up putting them in jail. Does this violate our first amendment rights? Time will tell what the courts decide, but either way, the decision will be highly impactful for America.
Gilberto Valle
Later
The future holds many questions about freedom of speech in America. It goes beyond what we message and post. Companies like Facebook, Apple, Google, and Amazon own and sell a lot of our personal data. We give this data freely to these companies when we accept the terms and conditions of their product use. Over the last few years, it is becoming more and more apparent that our data is being bought and sold by these big tech companies. People are beginning to ask if these are violations of their freedom of speech and privacy. It begs the question, does our clicks and likes count as speech? If so can we legally rescind out permissions for tech companies to use our data? There are really no clear answers right now.
The future holds many questions about freedom of speech in America. It goes beyond what we message and post. Companies like Facebook, Apple, Google, and Amazon own and sell a lot of our personal data. We give this data freely to these companies when we accept the terms and conditions of their product use. Over the last few years, it is becoming more and more apparent that our data is being bought and sold by these big tech companies. People are beginning to ask if these are violations of their freedom of speech and privacy. It begs the question, does our clicks and likes count as speech? If so can we legally rescind out permissions for tech companies to use our data? There are really no clear answers right now.
As our technology advances, and we create more and more ways to communicate, new challenges will arise in how we can use these technologies. What constitutes expression across the vast digital landscape? Does the government have the right to step in and regulate? These are questions that will be asked time and time again, each time creating a precedent for the future when they are answered.
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