Free Speech Online: Where Is the Line Drawn?

When America’s Founding Fathers drafted the First Amendment, no one could have imagined there would eventually be a technology — the Internet — that would allow Americans to speak to people around the globe within seconds. Now, more than 200 years later, some wonder if the existence of this modern technology complicates one of America’s basic rights: the freedom of speech.

“The Internet doesn’t change the dynamic in any fundamental way. What it does is it presses hard on some existing problems,” said John Palfrey, faculty co-director of the Berkman Center for Internet & Society at Harvard UniversityOpenNet Initiative. and a principal investigator with

“If I say something that’s harmful about you online, it can be read instantaneously by billions of people around the world at basically no cost. The number of people who can hear [that] speech [can] be vastly greater than it could have been before, and many more people are holding the megaphone that could reach that large group of people.”

Free-speech advocates argue that despite this scope and speed, it’s unnecessary to create laws that restrict speech online. Others disagree. On the Internet, there’s no segregation of material, no cellophane wrapper, nothing to protect children from seeing graphic pornography unless you’re proactive.

Welcome to the Village Screen

Before the rise of technology, communities came together at the village green, but now with the Internet, people from around the globe meet on the “village screen,” and that presents some unique challenges, according to Gene Policinski, vice president and executive director of the First Amendment Center.

“We have more opportunities to express ourselves than we had even 20 years ago,” Policinski explained. “Speech that might have gone unnoticed, that might have caused no harm, now gets noticed [and] can be global and eternal. We’re seeing comments about one’s employer, one’s principal or one’s teacher — that might have been scrawled on the wall or in a note — now posted on a Facebook page.”

Even though this is a new wrinkle in the free speech debate, Policinski doesn’t see the need for new laws.

“I’m very wary of proposals that restrict speech just on the Web for some special reason,” he explained. “I’m sure when the telegraph, telephone, radio and TV were new, everybody thought we needed special kinds of regulations [on] that speech.”

Brock Meeks, director of communications for the Center for Democracy & Technology, agrees.

“We want prosecutors to use the laws that are on the books right now to go after the perpetrators of crime on the Internet, not to create new laws just because something is being carried out in cyberspace,” he said. “To put those kinds of restrictions online or to treat the Internet differently than the nonelectronic world just doesn’t work.”

The government has tried to do this before and failed.

Take the Communications Decency Act (CDA), which “was the very first piece of legislation that tried to put restrictions on how people spoke on the Internet,” Meeks said. In 1997, the Supreme Court struck down the CDA except for Section 230, which says “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

This decision gave the Internet the same free speech protection as print.

“You can print four-letter words in magazines and newspapers, and it’s not against the law,” Meeks said. “[But] you can’t say it on TV on open broadcast networks without getting in trouble [with] the [Federal Communications Commission]. On the Internet, those standards don’t exist, those laws do not transfer, and the 1996 ACLU v. Reno [decision] cemented that First Amendment protection.”

There are certain forms of speech that are not protected under the First Amendment, though, such as defamation, certain types of incitement to violence and child pornography — that speech is illegal both in the online and offline mediums, Palfrey said.

Policinski believes the government should define these limits “with great caution.”

“One person’s hate speech is another person’s political statement,” he explained. “The First Amendment really exists to protect speech on the fringe because if it’s speech we all agree is fine, it doesn’t need to be protected. So by definition, the First Amendment protects speech that pushes the limits of what you or I or someone else might find comfortable.”

That’s exactly what happened during the Civil Rights Movement — people talked about issues many Americans weren’t comfortable with. If we didn’t have the freedom of speech, the United States might be in a different place today.

“Civil rights advocates would have been labeled hate speakers for trying to upset the customs, habits and sometimes laws of the nation regarding segregation,” Policinski said. “You just have to imagine what our society would be like today had they been prevented from speaking even though at the time perhaps the majority of Americans didn’t want to hear what they had to say.”

What About Pornography?

In 2006, there were 4.2 million pornographic Web sites, 420 million pornographic Web pages and 68 million daily pornographic search engine requests, according to the Internet Filter Review.

Because of this prevalence, Donna Rice Hughes, president of Enough Is Enough, doesn’t believe the status quo works, especially when a simple search for “water sports” can return sites with urination pornography. The Internet has thrown open the doors to pornography for adults and, even more unsettling, for children, she said.

“The early pioneers in the Internet industry will tell you behind closed doors that one of the ways they [made] and still do make money is because of the access that people have to pornography,” Hughes explained. “But having an entire generation of youth fed a steady diet of very hard-core material is not worth that price.”

According to Hughes, there are three types of pornography: child pornography, obscenity and indecency. In the U.S., it is a federal crime to make, produce, distribute or possess child pornography.

Obscenity — also not protected under the First Amendment — refers to hard-core material or deviant forms of pornography such as bestiality, incest and rape. “[Still], it’s everywhere on the Internet because the federal obscenity statutes are not being aggressively enforced,” she said.

The third kind of pornography is indecency, which is “programming [that] contains patently offensive sexual or excretory material that does not rise to the level of obscenity,” according to the FCC. Indecency is constitutionally protected for consenting adults, but not for minor children.

The Child Online Protection Act (COPA), which was enjoined in 1998 as soon as it was signed into law, would have protected minors from these forms of pornography on the Internet. After being jostled about in the courts for 10 years, the Supreme Court declined to hear the case again in January, effectively killing COPA, said Hughes, who was on the COPA Commission.

“It never went into effect and it never will go into effect because it’s dead now,” she explained. “The net result is that all these years there has not been a cyber brown wrapper, if you will, to screen minor children from getting into any of these porn sites online.”

Hughes would like to see the same standards of decency for broadcast applied to the Internet.

“The Internet shouldn’t get a free pass,” she said. “Since it has become the M.O. of how we communicate, then shouldn’t we have some rules for the road?

“If you could turn on the television and see people having sex, women having sex with dogs, people urinating in sexual ways, then that would be the same as the Internet. With television, if you want to get something that’s adult, you have to opt in to get it. When you turn on the Internet, you’ve got everything.”

But Hughes doesn’t believe this will change, as evidenced by what happened to the CDA and COPA.

“To go in and shift the paradigm to where everything’s locked down, and if you want free access to everything you’ve got to start opting out of the safe zone, that’s a huge jump from where we are. I don’t think it’s going to happen,” she said.

Enough Is Enough has developed a three-pronged solution to provide a safe environment for children.

First, end users — especially those responsible for children — need to be educated on the dangers that exist on the Internet and implement safety measures to protect kids. Second, the technology industry must implement IT solutions and develop family-friendly policies. Third, there must be aggressive enforcement of existing laws and enactment of new laws to stop “the sexual exploitation and victimization of children using the Internet,” according to the organization’s Web site.

“You can’t expect parents and the public to enforce the law, and you can’t expect government to parent kids,” Hughes said. “Everybody’s got a unique role, and if everyone’s doing their part, then you’ve got a very strong chance that kids are going to be much safer online. But we’ve still got a long way to go in each of those areas.”

How Do Other Countries Tackle This Issue?

Not every country is as tolerant of free speech as the U.S. According to the 2007 OpenNet Initiative study, 25 out of 41 countries surveyed engaged in Internet censorship, and that number is on the rise, Palfrey said.

The most basic form of censorship can be found in Saudi Arabia, where there is a single gateway that everyone has to go through.

“Whenever somebody tries to access the Internet from Saudi Arabia, it goes through this proxy system,” Palfrey said. “The request from the user is judged against a blacklist, which says, ‘Is this site acceptable material or not?’ If it’s on the blacklist, they do not return the page.”

In direct contrast to that is China’s filtering system, which is a complicated multi-level strategy with a gateway at every possible level, and many people share the responsibility of filtering the Internet.

“They [effectively] erected the Great Firewall of China around the edge of the country, [which] turned out to be porous,” Palfrey said. “So at the Internet service provider level, there are blocks for material that [is] deemed to be harmful; there are blocks on search engines, including Google and others based in the United States; there are blocks through blog servers; there are blocks at the university level; there are blocks at the cybercafe level; and so forth.”

China is one of the most repressive filtering regimes. Anything that is a threat to its form of government or way of life is censored, Meeks said.

“Let’s look, for example, at the big earthquake that happened in China,” he explained. “People got all upset because there [were] a lot of schools that crumbled and children died. People got on the Internet criticizing the way the government handled that construction. The Chinese government stepped in and started to shut down access to information about construction and arrested people who were speaking out against the government.”

But Meeks doesn’t believe the Internet can be censored effectively even in China.

“[China has] their hand on the information pipe, and they squeeze it pretty tight,” he said. “There are ways to get around that, and people are finding ways to circumvent the Chinese censors all the time. But it’s kind of like escalating warfare. The Chinese clamp down harder, and then new tools spring up and find better and faster ways of circumventing that censorship. The Chinese government [then] retaliates by finding out what those are and clamping down even harder — so it goes back and forth.”

One might argue that any type of censorship runs contrary to the nature of the Internet, which is inherently about the free flow of information.

“One of the great advantages of being able to use the Internet is that people feel empowered to say things that they may not say face-to-face,” Meeks said. “If you are being censored, it chills the way you speak; it chills the way you use the Internet. It drops to the lowest common denominator, so things become no more useful than the dialogue taking place in an elementary school classroom.”

–    Lindsay Edmonds Wickman, editor (at) certmag (dot) com

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