The Internet and the First Amendment

06 Dec 2010

The principle of free speech is not concerned with the content of a man’s speech and does not protect only the expression of good ideas, but all ideas. If it were otherwise, who would determine which ideas are good and where forbidden? The government? -Ayn Rand

Within the First Amendment of the United States Constitution lies one of the most basic American core values–Freedom of Speech. Arguably the most essential portion of the Constitution, the irrevocable freedom to express one’s self freely clearly exemplifies the resistance to an authoritarian government. Likewise, the freedom of the press is an inalienable civil liberty–a bulwark to oppression.

The capacity to voice one’s opinion is a right that many Americans take for granted. Unfortunately, in today’s world there are still a vast number of nations that have abusive laws repressing dissent. China, Iran, North Korea, and many Middle Eastern countries quickly come to mind. These governments fear their own citizenry, and therefore shutdown protests and criticisms in all forms. These nations have, on occasion, liberalized some of their restrictive policies, but in many cases revert back to their totalitarian ways. It is vital to remember that when government functionaries bestow rights to their citizens, those same rights can ultimately be rescinded when they feel it is necessary. In actuality, those are not rights at all, but merely concessions by the ruling authority. Thomas Jefferson explicitly noted in the Declaration of Independence that elemental rights such as life, liberty, and the pursuit of happiness, do not come from government, but rather are endowed by their Creator. These fundamental rights supersede any government. The government cannot take away these rights, because it is not “they” who granted them initially. Therefore, nobody must be beholden or indebted to any ruling party or government bureaucrat.

The newspaper has long reigned supreme as the basic unit of free speech for hundreds of years. A newspaper could be distributed to millions of people. However, newspapers are only as powerful as the extent of that particular nation’s freedom of expression. If the citizens of a country lacked this civil liberty, the newspaper and other forms of press are likely owned or controlled by the state, and hence not free at all. As a result, the Internet has proven to be an invaluable tool for free speech activists. Netizens from all around the world can share ideas, spread news, and communicate with like-minded individuals. With the advent of the Internet, anyone can publish their own writings on blogs (web logs) anonymously or openly. It has been a monumental task for oppressive regimes to locate and arrest human rights activists who post their work online, although arrests still frequently occur. Regardless, the relative ease of setting up a website has helped spawn a new medium for freedom of expression. Websites such as Matt Drudge’s Drudge Report and Arianna Huffington’s Huffington Post have enormous audiences. Social networks on the web, such as Twitter have revolutionized the way news permeates across the globe. Where a newspaper can only print news once a day to a limited number of individuals, anyone can disseminate their views to 3 billion Internet users in real-time. The following paper details the significance of the Internet in its role for promoting free press and a tool to fight repressive regimes.

The John Peter Zenger trial in August 1734 is considered to be the birth of the American free press. Zenger, the editor of the New York Weekly Journal, was brought to trial on charges of “seditious libel” related to articles that had been published in that paper. The articles were acutely critical of the policies of New York governor William Crosby. Although seditious libel under English common law merely constituted communication, Zenger’s lawyer, Andrew Hamilton, argued that the writings had to be untrue in order to be libel. A New York jury agreed and the Zenger case became a precedent for freedom of the press (Streich).

During the the time frame between the end of the French and Indian War and the outbreak of the Revolution, there were numerous, mostly failed, attempts at censorship. This period produced an abundance of attempts to influence public opinion toward secession from Britain. Historian Arthur Schlesinger states that, “Not until the rise of troubles with Britain did the editor come to think of himself as a maker of opinion as well as a transmitter of news and literary offerings,” (Streich).

Newspapers and pamphlets published the political speeches and debates so that the public at large could understand and have access to the issues. Political cartoons and depictions, such as Paul Revere’s lithograph of the Boston Massacre, helped galvanize support for independence, although very often the facts were incorrect and served the purpose of mass propaganda (Streich).

The newly formed United States began its long journey of freedom with a tradition of a free press. Referring to the Zenger precedent, historian Sidney Kobre wrote that, “The newspaper had won a greater liberty to publish critical material directed against the government,” (Streich).

The free press has always been the cornerstone of the free exchange of ideas and the protection of liberties. Guaranteed by the First Amendment, freedom of the press has ensured that the American people were well informed of the issues. At times, the press exposed gross corruption and government scandal such as the Washington Post’s expose of Watergate.

Yet there have been times in the history of the nation when the free press came under attack by government-sponsored censorship. During the John Adams administration, relations with France deteriorated. France had undergone nearly a decade of internal strife that began with the 1789 French Revolution and ended with the Reign of Terror under Robespierre. Federalists, identifying more with Britain than France, feared that these events might affect the political and social processes in the United States (Cody).

Section Two of “An Act for the Punishment of Certain Crimes Against the United States,” enacted July 14, 1798, made it a crime to “write, print, utter or publish…any false, scandalous and malicious writing…against the government.” The Act specifically identified Congress and the President. Consequently, any writings against government policy could be prosecuted as defamation. Thomas Jefferson and his opposition party, the Republicans, decried the act as unconstitutional and a violation of the First Amendment. Indeed, public opposition to the Alien and Sedition Acts was so intense that Jefferson, was elected to the presidency in 1800. Once in office, Jefferson pardoned all those convicted under the Sedition Act, while Congress restored all fines paid with interest (“Early America”).

Americans need to understand why our founding fathers demanded passage of the First Amendment, which restrains Congress from infringing on freedom of speech and freedom of the press. Our forefathers surmised that omitting this prohibition, would inevitably lead to the curtailing of these rights, such as the above mentioned foreign nations do. The Chinese communist regime is one of the most mighty governments in history. Its political suppression on the Chinese citizenry is virtually complete. There are no free elections. Free speech is banned. The press is controlled by those in power. Even the Internet is censored. The Internet, where ideas right or wrong, absurd or brilliant flow freely from one’s fingertips are now viewed as a threat to their national security. Much of this is true for other countries as well, such as Iran. What could possibly be the reason why Iranian and Chinese officials fear permitting freedom of expression so intensely? It is precisely because they realize the power and desire individuals have for liberty. The ability to question authority and express ones thoughts without fear of retribution is an inalienable right. The ruling class in these regimes, inherently understand these rights are so compelling that they can arouse people to overthrow even the most powerful, vengeful dominions.

The emergence of the Internet over the past decade has altered the landscape for both freedom of speech and freedom of the press. New boundaries and questions arise everyday. The Founders strongly believed, that an educated republic was vital to the guardianship of our freedoms. Hence, the creation of the First Amendment. The Internet provides for those objectives in a way that John Adams, Thomas Jefferson, or James Madison could never have imagined. Instantaneously there are potentially millions of journalists, or rather opinion makers. Even in the United States, the debate has begun. Should there be certain limitations on what can be posted? Many times there are anonymous and vitriolic attacks upon individuals. Cyber-bullying is now at the forefront of concerns facing communities across America. It is inevitable that issues revolving around our fundamental rights and the Internet will be wrestled with for years to come, and ultimately decided upon by the courts. In fact, the American Civil Liberties Union brought an Internet censorship case to the United States Supreme Court. The court decided, in Reno v. ACLU, the Internet to be a free speech zone, deserving First Amendment protection as that accorded to traditional print sources like newspapers, books and magazines. The Supreme Court declared that the government, can no more restrict a person’s access to words or images on the Internet than it could be allowed to take a book away from someone in the library, or attempt to cover up an exhibition of a nude statue in a museum (“Internet Censorship”).

The First Amendment only puts limits on the government’s ability to restrict speech. A private individual or entity, can limit your freedom of speech within their own purview, providing it does not come under some type of regulation. For a recent example, the firing of analyst Juan Williams by NPR for his comments on Fox News does not constitute a First Amendment issue. Private enterprises, organizations and even some government entities can create their own policy and terminate someone for making statements that are in variance with their stated goals. Internet Service Providers (ISP) can exercise an immense amount of oversight when it comes to Internet pronouncements. These ISPs can monitor their clienteles’ narratives and abrogate language that contravene the corporations’ guidelines. ISP’s also have the capability to prohibit their patrons access to the Internet though their portals. Their have been several failed First Amendment lawsuits against the ISP’s brought before the courts in recent years. The Courts have maintained the State Action Doctrine applies to these cases (Hudson).

The State Action Doctrine General Rule states “The protection of the Bill of Rights protects individuals from constitutional violations by governments (State and Federal) but not by private actors,” (“MSLaw”). Therefore, the First Amendment legal challenges to the ISP’s have failed because the Courts have decreed that the ISP’s are private corporations, and not government entities.

In Noah v. America Online (2003), a federal district court in Virginia rejected the First Amendment claim of a subscriber who said AOL had violated his free-speech rights by censoring his pro-Islamic statements. The court wrote:

Yet, even assuming the truth of plaintiff’s allegations, the First Amendment is of no avail to him in these circumstances; it does not protect against actions taken by private entities, rather it is a guarantee only against abridgment by government, state or federal (Hudson).

Another example of an unsuccessful legal claim against an Internet Service Provider occurred in a federal district court in Delaware. The case of Langdon v. Google, 474 F. Supp. 2d 622 (D. Del. 2007) strengthened the standard that the First Amendment protection is not applicable to ISP’s. The court declared:
Defendants (Google, Yahoo! and Microsoft) are private, for profit companies, not subject to constitutional free speech guarantees … . Plaintiff’s position that Google is a state actor because it works with state universities is specious. (Hudson).

The court went further in remarking that the ISP’s themselves had First Amendment interests. The plaintiff, Langdon, commenced the legal action against the ISP’s because they denied his petition to run certain advertisements on his Web sites. Google contended that being compelled to run the ads would oblige them to communicate in a form considered suitable by Langdon and would preclude Google from communicating in methods Langdon disapproved. The court concurred that forcing the defendants to run the ads would encroach on their First Amendment rights. It stated, “The First Amendment guarantees an individual the right to free speech, a term necessarily comprising the decision of both what to say and what not to say,” (Hudson).
The recent release of hundreds of thousands pages of classified United States government documents by Wikileaks exemplifies both the power and danger of the Internet. It also raises additional questions on whether their should be further limitations of Freedom of Speech. The battle lines have already been formed. The argument cross over traditional political allies and foes. Republican Congressman Peter King has called for Wikileaks to be designated a “foreign terrorist organization.” King further stated that Wikileaks “posed a clear and present danger to the national security of the United States,” (Kennedy).

Representative King also wants to prosecute the Austrian Founder of Wikileaks Julian Assange, under the Espionage Act. In an appearance on WCBS 880 King said:

“The Attorney General and I don’t always agree on different issues. But I believe on this one, he and I strongly agree that there should be a criminal prosecution,” (“CBS New York”).

Attorney General Eric Holder has indeed indicated he does intend to prosecute Julian Assange. The Justice Department certainly will have an uphill battle here, as there has never been a favorable prosecution against a media organization for distributing leaked information. Additionally, Assange most probably will claim that posting documents concerning American foreign policy for universal examination is a political act. The preponderance of extradition treaties usually exempt ”political offenses” from extradition. The Department of Justice (DOJ) has generally refrained in the past from indicting the traditional media. That is why there is no apparent intent or enthusiasm to investigate the New York Times nor the Washington Post newspapers. Both of these entities have been at the forefront in publishing voluminous descriptions of the leaked classified information. Baruch Weiss writes in the December 5th, 2010 issue of the Washington Post that there is no clearly defined statute that makes the disclosure of classified information illegal, especially by individuals or journalists. Also, classified information does not automatically upend First Amendment protections. Former Supreme Court Justice Oliver Wendell Holmes Jr. explained that the government would have to prove that there was an immediate and dangerous threat akin to “shouting fire in a crowded theater.” A Herculean task to overcome. However, the DOJ may find it more palatable to pursue Wikileaks because it is not the traditional media like the New York Times or Washington Post. Julian Assange most undoubtedly will depend and have confidence on First Amendment protection, similar to other media organizations (Weiss).

The First Amendment, of course, protects both freedom of the press (yes, WikiLeaks is the press) and freedom of expression. That is one reason Holder is not investigating this newspaper or the New York Times, even though both are publishing extensive details from the cables; It is the Justice Department’s practice to refrain from bringing leak indictments against traditional media outlets.

Republican Texas Congressman Ron Paul weighed in on the controversy through his Twitter account defending Wikileaks:

In a free society we’re supposed to know the truth. In a society where truth becomes treason, then we’re in big trouble. And now, people who are revealing the truth are getting into trouble for it…This is media, isn’t it? I mean, why don’t we prosecute The New York Times or anybody that releases this? (Ron Paul).

During an interview with Fox News, White House Press Secretary Robert Gibbs, declared that the administration is “not scared of one guy with one keyboard and a laptop.” Gibbs added that “Our foreign policy and our country is stronger than one guy with one website. We should never be afraid of one guy who plopped down $35 and bought a web address. … Let’s not be scared of one guy with a laptop,” (“Fox News”). However, the truth is that one man in his pajamas with a laptop and a website can cause at the very least embarrassment and upheaval for our State Department as they scramble to deal with the fallout of these leaks on our foreign relations.
Along those lines, it is interesting to ponder how the reaction of a repressive regime such as China or Iran would react to a Wikileaks style release of classified information in their own country. It is possible that we may find out sooner rather than later as Wikileaks founder Assange, recently stated that he would like to disclose state secrets from both China and Russia (Branigan).

China has been at a virtual war with Internet sites such as Twitter, Google, and others. They are currently experimenting new controls on home grown local sites similar to Twitter and Facebook. Both Twitter and Facebook were blocked in China last year. The major Internet portals of China such as QQ and Sina have explained that there Twitter style sites are still in testing mode. By developing and growing these internal sites the Chinese government is hoping to control and monitor the dissemination of information that is posted. Beijing has permitted blogging on “reliable” indigenous sites. These domestic sites are closely watched to ensure they enforce the dictates and wishes of the Chinese authorities. Government officials are alert to the peril of state adversaries who would capitalize social networking sites to tarnish the government by manipulating public opinion. The chief editor at Sina, Chen Tong recognized at a recent symposium that managing subject matter was a “very big headache.”

There are over 400 million Internet users in China. Most of them are well aware of the on-going comprehensive censorship that encompasses China’s Internet community. Blogs have been shutdown, web access curtailed, and links filtered for content. According to Hu Yong, a communications expert at the University of Peking:

All along, there have been problems netizens discuss and news they spread that the government doesn’t like. So for the government to ramp up management of microblogs is completely predictable (Ansfield).

However, it will be a constant challenge for the Chinese government to continuously be able to curb freedom of expression over the net, even with the deployment of new monitoring technologies. There are over 230 million mobile phone users in China, many potentially can become “microbloggers” (Kitazume). Increasing ranks of Internet users have organized by creating communities on social networking sites and last year some of them resorted to physical action in real life to express their discontent, he said.

The largest civilian protest since the Tiananmen Square uprising occurred in 1989, happened in the city of Guangzhou, the capital of Guangdong province in November of 2009. Over 1000 citizens protested the construction of a garbage incineration building. It was reported that bloggers were the major force for rallying and coordinating the protests.

The authorities attempted to restrict the reporting of the events in Guangzhou, however defiant journalists disregarded the order, using blogs that they created, to disseminate the news (Kitazume). It has become increasingly more difficult for Chinese officials to stem the tide for the control of information. Although tightening of censorship will continue, the reality is that the Chinese must recognize the inevitable changing landscape when it comes to the spread of freedom of expression for its society (Kitazume).

The Islamic Republic of Iran is second only to China in its development of technologies that sanitize the Internet. According to Clothilde Le Coz, Director of Internet research for Reporters Without Borders asserts that the Iranian government has freely boasted of their censorship capabilities. “The Iranian government said last year that it was blocking 5 million websites,” Le Coz continues in an interview “They brag about what they can do, perhaps to intimidate their opponents,” (Abate).
Iran is also the sole country on the planet to require its Internet Service Providers to cap the Internet access speeds for households. The obvious goal of this order which was issued on October 11, 2006 by the Ministry of Communications and Information Technology was to stifle subscribers’ ability to download music and films from abroad, along with hampering coordinated political dissent (“OpenNet Initiative”). Despite the extreme measures that Iran implemented to curtail freedom of speech and expression over the Internet, Twitter still was able to convey over 2 million succinct messages detailing events from inside Iran. This occurred during a tumultuous 18-day period in the summer of 2009 following a highly controversial and divisive election process and result, according to Nart Villeneuve, a research fellow at the University of Toronto’s Munk Center for International Studies. Villeneuve also reported that Iranian officials attempted to restrict the communique deluge by obstructing access to the Twitter site. However, many Iranians were savvy in their ability to circumvent the government actions utilizing unencumbered alternative servers. The failure of the Iranian government to control the information stream shows just how problematic it is to thwart the progress of the Internet with its emerging innovations (Abate).
Twitter makes the ideal medium for a quick widespread civil unrest operation. It is both free and easy to use, hard to curb, and can be accessed via computers or cell phones. During the 2009 Iranian protests, Twitter was able to deliver messages across the world as events occurred in real time. This was happening simultaneously as the Iranian government was censoring both print and broadcast media. Below are some examples of tweets during the Iranian protests:

Woman says ppl knocking on her door 2 AM saying they were intelligence agents, took her daughter
Ashora platoons now moving from valiasr toward National Tv staion. mousavi’s supporters are already there. my father is out there!
we hear 1dead in shiraz, livefire used in other cities RT

Of course a main concern, when it comes to twitter and other Internet websites, is the veracity and accuracy of the information.

The civil unrest in Iran was not initiated by Twitter. However, it did give the demonstrators confidence and hope that they are not alone in their struggle. Twitter enabled the world community to become engaged in the daily protests. In the end, the government did prevail, but not before the repressive totalitarian regime was exposed to the world (Grossman).
While the American government is not able to restrain free speech, individuals are still responsible for anything that they say and the subsequent fallout from such statements. Cyber-bullying, libelous declarations, indecent material and privacy issues are all part of today’s Internet environment. The free speech issues are still being sorted out, with increasing demand for limitations on free speech in many of these instances.
The advancement of the Internet as a worldwide, free and open asset is a continual pursuit. The vigorous and decentralized feature of the Internet proposes cutting edge possibilities for information exchange and free expression, as well as new dangers. Governments across the globe are attempting to control this communication expansion, while individuals utilizing digital media to advocate transformation are becoming more and more complex and strategic, as they encounter each other.
Free speech has never been as powerful as it is today with the existence of the Internet. People yearn to be free, and resist being stifled or controlled. The Internet has provided a new voice and a new medium to share thoughts and beliefs. The World Wide Web is still young, and still coming into its own. As the Internet continues to grow, new avenues for information exchange will open up. Ideas and freedom are the greatest tools to fight oppression. The Internet, despite many of its dangers and shortfalls, has connected the world in a way that has never been seen before in human history. Along those connections–those cables, wires, and satellite signals, is speech. Free speech.


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