The First Amendment and what it means for free speech online
The internet as we know it is nearly 30 years old. Sure, the web is a bit more complicated — and more intricately connected — than it was 30 years ago, but it’s no less of a modern Wild West today than it was in the 90s (although you may need to dig deep into the darknet to experience the real gun-slinging). The freedoms and anonymity we enjoy online are, however, constantly under scrutiny, by both governments and businesses alike.
At the heart of the issue many have with the internet in its current form is the aforementioned anonymity. That freedom is in no small part is guaranteed by the First Amendment, but it comes in direct conflict with the distinctly gray legal areas the internet seemingly creates with ease.
On the surface, online freedom of speech seems simple enough. The words inscribed within the First Amendment appear to be fairly straightforward in covering the topic:
“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.”
We see all of those freedoms expressed on the internet with stunning regularity. Religious websites of all kinds abound; people can and do say almost anything, sometimes with reckless abandon; newspapers are now surviving almost exclusively because of their internet presence; social media websites and online forums allow anyone to “assemble”; websites, such as petitions.whitehouse.gov, exist to streamline our legally-required right to petition the government.
Yet much of what happens on the internet falls more specifically under the broad concept of “free speech”. However, the definition of “speech” has expanded in the past 200 years to now include far more than just written or spoken words. Actions themselves can constitute free speech. This broad definition makes interpreting the freedoms, and subsequent limitations, all the more vague as some actions are certainly harmful to others in ways that infringe on their rights.
According to USCourts.gov, the First Amendment does not cover:
- Words or actions meant to incite violence or that influence others to commit acts of violence (including “fighting words”) (Schenck v. United States, 249 U.S. 47 (1919))
- Libel and slander (New York Times Co v. Sullivan, 376 U.S. 254 (1964))
- Child pornography (New York v. Ferber 458 U.S. 747 (1982))
- The creation or distribution of obscene materials (Roth v. United States, 354 U.S. 476 (1957))
- The burning of draft cards as an anti-war protest (United States v. O’Brien, 391 U.S. 367 (1968))
- Students printing articles in a school newspaper over the objections of the school administration (Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988))
- Students who make obscene speeches at school-sponsored events (Bethel School District #43 v. Fraser, 478 U.S. 675 (1986))
- Students who advocate illegal drug use at a school-sponsored event (Morse v. Frederick, 200 U.S. 321 (2007))
There are more, to be sure, but note that the limitations on free speech are almost always specific to particular cases that don’t directly or exclusively involve the internet. For the web, “inciting violence” and “distribution of obscene materials” easily apply, although these two instances are still legally vague. What, for example, might be considered “obscene”? And to what extent is someone responsible for the independent actions of other people who respond to their words in unsavory and violent ways?
Even still, free speech online is coming face to face with other legal issues, such as copyright laws written into the Digital Millennium Copyright Act (DMCA) and filesharing. Filesharing sites and those who utilize them have taken on increasing amounts of scrutiny. In the U.S., in particular, the cross section of free speech and filesharing come together under the shadow of the First Amendment. Do file sharers have the right to First Amendment anonymity? Or do copyright holders maintain the right to reveal and pursue those who are illegally sharing their content? And perhaps an even bigger question: How do either of these issues fit under the purview of the First Amendment in the first place?
Different groups of internet denizens have different concerns when it comes to First Amendment rights on the web. Journalists must be concerned about what they publish and about the potential for libel; social media users must worry about the consequences of what they say or share online, as well as the privacy of that material; content creators must worry about whether what they create and share may be considered obscene; all internet users must be cognizant of net neutrality and the implications of its loss.
Much of the internet freedom debate deals directly with copyrights holders’ desires to locate and sue those who share files illegally, and around what is and is not considered hateful and violent speech that moves a step too far in the wrong direction. However, the very scope of the internet covers all facets of free speech, and in many ways, expands the boundaries and definition of the First Amendment.
Free speech online is not as free as you think
The First Amendment and the internet are currently at odds with each other. This may seem counter-intuitive, as many consider the internet to be the last, best hope for real free speech, but as Susie Cagle so eloquently states in her Pacific Standard piece, “No, You Don’t Have Free Speech Online“:
“On one hand, we expect these walled gardens to protect us from invasive government spy programs, and we’re outraged when they don’t. On another, we expect them to act as a public utility, an arm of government, protecting our constitutional rights. But Twitter can ban whoever it wants. Twitter has no responsibility to free speech.”
In truth, the internet is only at such odds with free speech due to what the Sunlight Foundation’s Christopher Gates writes is our continued use of the internet’s “walled gardens”, or privately-owned social media websites like Twitter and Facebook. In his “Eulogy for Politwoops“, Gates explained: “Our shared conversations are increasingly taking place in privately owned and managed walled gardens, which means that the politics that occur in such conversations are subject to private rules.”
Therein lies the problem. Yes, the First Amendment applies online, just as it does in regular written, personal, religious, and political discourse. But one of the key limitations of the internet lies less in what we can say, but where we choose to say it. Does this mean the First Amendment comes screeching to a halt when we hop online? Not necessarily. But we engage each other through the internet primarily via private websites, not public ones, so the First Amendment, to no small degree, is far from a protected “free speech zone”.
Instead, the Internet a more akin to a public highway criss-crossing private properties. We could choose to stop on the highway, but we won’t find much benefit in that if we do. After all, the highway itself has nothing to offer us; the destinations it helps us reach, however, provide value.
This, of course, raises a very concerning question: Where are the internet’s actual free speech zones? E.g., are there any websites that are government owned or free from private rules, in which Americans can engage each other, or where we can express our thoughts, ideas, and beliefs, without the looming specter of getting voted off the island?
Not really. And that’s a problem.
That said, the First Amendment and online free speech concerns impact and cover different groups in different ways.
Free speech for all internet users
For your average internet user, free speech concerns typically involve the following:
- Copyright infringement
- Comments and material posted on online forums and social media websites
- The fluid definition of “obscenity”
Let’s look at each of these issues individually, and how to stay on the right side of the First Amendment.
Online copyright infringement
This is one issue with no easy answer. Copyright infringement relates to the sharing and acquisition of copyrighted, intellectual property without attribution or compensation to the correct owner. There are a lot of ways your average Internet user can come face-to-face with this issue.
One of the first examples of this problem on the Internet cycles back to 1999, when the popular music sharing application, Napster, was sued by the Recording Industry Association of America (RIAA) for copyright infringement. The case could be seen as one of the defining points for copyright infringement online, considering the RIAA later sued more than 200 Napster users over copyright infringement as well.
Some arguments on the issue maintain that digital copyrights are counter-intuitive, and that copyrights were originally crafted to create scarcity for limited materials. This leads to the idea that copyrights for digital materials, which in essence are or can be unlimited, inhibit free speech. One can find such an argument published by the LA Times, and the Electronic Frontier Foundation, among others.
The issue is overly complex with no clear definition, but consecutive court rulings do make one thing certain: The government is more likely to land on the side of copyrights holders than file sharers. And that’s not just the companies involved. That includes people who use file-sharing services. Interestingly, however, the DMCA, the very law intended to protect copyright holders in a new digital age, in some ways actually inhibits their ability to prevent the spread of copyright infringement due to the “safe harbor” clause.
To that end, free speech is severely limited regarding file sharing and copyrighted material, but there are still many gray areas. Using a peer-to-peer website like The Pirate Bay to seek out and download the latest Steven Spielberg movie or Beyonce’s newest album could land you in hot water. Whether you agree to the legitimacy of digital copyrights or not, those materials are legally protected for their owners and the law sits with copyright holders in most cases. Furthermore, copyright holders go to great lengths to pursue and stamp out copyright infringement, even working directly with ISPs to locate individuals who download their material illegally.
Susan Cagle said it best in her article: You don’t have free speech online. However, that’s not entirely true. You do have free speech online; you just don’t have free speech when you’re using privately-owned social media websites and forums.
Most users won’t come face-to-face with this reality, as social media websites and online forums that try to attract a large user base are typically slow to ban people from their services. However, it can and does happen once users cross the line from general free speech to making online threats, harassing other users, or when posting obscene material (we’ll get into that one later).
In general, websites like Twitter, Facebook, Reddit, and others will make banning decisions that are in the best interest of their company, or due to general disagreements with the political bent of the posters. Most recently, Twitter deleted a large number of Twitter accounts associated with the Alt-Right. Many of those accounts were from individuals who did not make threats or even post necessarily disparaging or harassing material, but whom were aligned with the overwhelmingly unpopular political movement. In perhaps another blow to the Alt-Right, Reddit recently decided to do the same thing, closing down several private forums associated with the movement.
In a private message to Gizmodo, the former mod for /r/AltRight explained: “I’m honestly not sure of the details yet. We anticipated Reddit would terminate the sub soon because they typically don’t allow these types of right-wing groups to get much bigger than 20,000 subscribers, and /r/AltRight was rapidly nearing that point.”
Many see the Alt-Right as a racist, neo-Nazi movement, making Twitter’s and Reddit’s move widely applauded by some, and openly condemned by others, if not highly controversial. However, it served to highlight the fact that the social media websites we use as free speech conduits are not duty-bound to protect our First Amendment right to free speech or expression. Reddit, especially, is far from a free speech zone, where admins have even edited user comments that they didn’t like.
Social media sites and forums only allow free speech to the extent that it makes good business sense, and they’ll follow the tide of public opinion if it threatens their business, suppressing the speech of some to secure their business interests and help prevent users from fleeing to other services.
Be careful with what you say on social media websites and online forums. Those websites have no legal requirement to protect your speech, and they can ban you for any reason and mostly without consequence — as long as you’re not a paying customer, that is. Once you exchange money for services, things get a bit tricker for them, but not overwhelmingly so.
In many cases, those sites may actually be required to report what you say to the federal government or local police as well, especially in cases of harassment and threats. So, not only are your free speech rights non-existent on social media and online forums, you actually expose yourself to more legal consequences by using these sites than by avoiding them altogether.
The only way to have absolute freedom of speech on social media is to create your own website. Sadly, there’s no guarantee written into the First Amendment or anywhere else in the constitution that you’ll be granted an audience, so good luck attracting one without having to use already-established social media sites first.
Here’s the tricky part to this issue: What’s obscene to one person is certainly not going to be obscene to everyone. Many people take significant issue and umbrage to the posting of aborted fetuses as a means of political speech against abortion, while others view it as a necessary method to communicate the position. There’s an interesting debate currently going on at Debate.org on this very issue, in fact. The images are certainly disturbing. But is displaying and posting them in public protected by the First Amendment?
The short answer is no, but it’s complicated.
Again, this goes back to the sticky situation with social media platforms. Most social media websites block a large variety of obscene material, but what gets blocked and what’s allowed through is often highly political in nature. Many people complained when Facebook shut down the Facebook Live video of one police shooting, for example, but the site removed — and then returned — a video of a different police shooting. In the case of the first example, Facebook was responding to the requests of police. In the second situation, Facebook claimed the removal was due to a “glitch”.
Most social media websites have well-defined rules for what’s considered too obscene for their sites, while not every social media website will have the same definitions. You’ll find more pornographic material on Reddit (and almost certainly on 4Chan) than you will on Facebook, but there are some kinds of material that almost all websites ban outright due to legal requirements.
According to Cornell University Law Center: “A comprehensive, legal definition of obscenity has been difficult to establish.” However, there are some legal precedents that do establish certain types of materials as obscene. Legally, obscenity is measured using what’s known as the Miller test, a rule established by the Supreme Court in 1973 following the Miller v. California case, which evaluates whether certain material is legally obscene in this manner:
(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and
(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. If a state obscenity law is thus limited, First Amendment values are adequately protected by ultimate independent appellate review of constitutional claims when necessary.
For clarity, something is only legally obscene if it satisfies all three of these points. But you’ll note that there’s a significant amount of subjectivity involved in the test itself, making it somewhat useful as a tool for changing times, but difficult when dealing with disparate communities who hold different beliefs. The internet tends to bring these communities into direct conflict on a regular basis, making the definition of “obscenity” all the more elusive.
Prior to Miller v. California, the defining law was established under Roth v. United States, which declared that obscenity is not protected under the First Amendment and that it is therefore up to individual states to decide what is or is not considered obscene. Where Roth v. United States fails, however, is under the commerce clause, which states that the U.S. government maintains legal authority over interstate commerce regarding material that moves in between states.
This is why someone often violates state laws when buying illegal material in their own state, but federal laws when they travel across state lines to engage in illegal activity. By its nature, online material posted online crosses state borders, making who has jurisdiction over obscene material posted online sometimes a bit complicated. Quite frequently, individuals get tried under both federal and state laws, meaning the posting, sharing or acquisition of obscene material online is doubly troublesome for those who do it.
The only caveat here relates to child pornography. In the 1990 case Osborne v. Ohio, the Supreme Court ruled that child pornography need not fit under the definition of “obscenity”, as it relates to the prevention of child exploitation. In that sense, child pornography is one of the only types of ostensibly obscene materials that do not actually fall under the legal definition of “obscene” for the sole purpose of keeping its legality fully within the purview of the federal government.
First and foremost, learn your state’s obscenity laws and federal definitions of obscenity. What is obscene in one state may not be considered obscene in another. You could be protected by your state’s laws, or you could be at risk for breaking the law.
Secondly, learn what’s considered permissible on the sites you’re using. Some sites have loose rules, others rather stringent ones. In most cases, sites allow users to report material that may be considered obscene and leave it up to the website to determine whether that material is or is not actually allowed.
In general, obscenity is not a form of protected free speech under the First Amendment, so you’re entering a very twisted jungle of confusing rules and state laws when you post or access potentially obscene material online.
For journalists, the First Amendment clearly spells out the “freedom of the press”. This has long been interpreted as protections for journalistic endeavors and writing, including newspapers, magazines, independent journalists, television news, photojournalism and other forms of media. However, the line between who is and isn’t a journalist has been fundamentally blurred in the Internet Age.
No bigger issue exists on this end than the proliferation of online bloggers and “new media” in general. Who could be considered a “journalist”, and what is and is not considered the “press” was easy to establish before the growth of the internet. If you could afford to print, and you avoided the nasty issues related to libel, your organization was generally considered legitimate press, and those who wrote for you, journalists. Even then, there had to be a journalistic history behind your organization before you were considered legitimate. As the internet grew, individuals with their own websites or space on other websites increasingly gained notoriety, publishing journalistic content, but not aligned to any larger, traditional news organizations.
Were these new weblog, or “blog” writers, journalists? For well over a decade, there was no definitive answer to that question, although many people (mostly traditional journalists) would have said no. However, in 2014, the notorious Ninth Circuit Court of Appeals ruled that bloggers are indeed considered journalists when it comes to their First Amendment rights. In the case Obsidian Finance Group, LLC; Kevin D. Padrick v. Crystal Cox, the court was trying to answer the question that had been nagging many bloggers and traditional journalists for some time: Are bloggers considered journalists? At issue was the fact that defendant Crystal Cox committed an act of libel, which, according to legal precedent, must be proven false by the plaintiff (in this case, Obsidian Finance Group) if the act was committed by an established journalist. If no proof can be provided, the plaintiff has not established that libel actually occurred. In 2011, Cox lost a lower court case because as a blogger, she could not prove her journalistic credentials, e.g., that she worked for an official news organization.
The Ninth Circuit’s decision effectively answered the looming question of whether a blogger should be considered a journalist with a precedent-setting “yes” decision and establishing that bloggers don’t need to prove it by having worked with or for established news organizations or traditional print or television media.
Cox herself was no bastion of journalistic integrity. According to court documents, the blogger had a history of making false accusations against companies and strong-arming them into paying her for retractions. Engaging in this sort of activity now would quickly get a blog labeled a “fake news” outlet. However, according to the precedent set by the Ninth Circuit, even bloggers producing fake news must receive the same free press protections as traditional, reputable journalists.
So what dangers exists for journalists when it comes to First Amendment rights online? Thankfully, those concerns have not really changed.
- Journalist must be concerned with reporting facts as accurately as possible
- Journalists must be dedicated to making corrections on stories when possible or retractions when necessary
- Journalists must avoid libel
- Journalists must avoid invasion of privacy
Accuracy in reporting
This tenet of journalism has remained true for a century. That said, there was a time when journalism was not as clean an industry. Yellow Journalism, the nasty, libelous and “fake news” type of journalism that was rampant in the late 1800s, was protected free speech even then, as it still is today. Journalists can indeed lie and fabricate news. However, credibility is a major concern, especially in an overly dense market.
The news industry is also jostling to stay solvent in a world moving further away from physical print, meaning traditional news organizations must find ways to compete with the millions of bloggers doing the same work for less money and with much less oversight and dedication to integrity.
Stay true to the facts, avoid opinion when possible, and maintain a strong dedication to credibility. This will ensure you stay on the right side of the First Amendment. Yes, that includes bloggers as well. Considering Americans’ trust in mass media is at an all-time low, this kind of neutrality is all the more important.
Corrections and Retractions
Part of the reason Americans do not trust journalists these days and prefer to get their news from alternative media sources relates to the unwillingness of major news organizations to quickly admit fault. This is not the largest part of the issue, as there are many underlying problems related more strongly to the growing desire among Americans to get news from opinionated sources that fit their own beliefs. However, part of that mistrust Americans feel resides in rampant misreporting from major news organizations.
A perfect example occurred just recently with the Quebec mass shooting tragedy. Shortly after the shooting, and before full details had emerged, Fox News inaccurately tweeted out that the mass shooter was of Moroccan origin. This turned out to be wrong, as the shooter was eventually identified as a French-Canadian man with strong right-wing ideologies. After much pressure, more particularly directly from Canadian PM Justin Trudeau, Fox News eventually deleted and retracted the tweet, as well as published an official apology.
Maintain accuracy when possible, and when your facts are wrong, admit it. The need to be first is important from an ad revenue perspective, but it can easily lead to inaccurate reporting. When that happens — and it will happen — be just as fast to print or publish retractions and corrections. While there is no First Amendment requirement to publish a retraction when there is no libel involved, “winning” modern media does involve staying on the right side of honesty and integrity.
Avoid Libel and Defamation
There’s very little to say on this topic, other than to reiterate the point: Libel is the number one biggest constraint to freedom of the press and journalistic free speech online. Thankfully, you rarely read about journalists or news organizations getting tagged with libel lawsuits, although it does occur. When it does, it typically involves rather high-profile individuals with somewhat hurt feelings.
For all intents and purposes, newspapers and journalists should avoid libel like the plague. Whether intentional or unintentional, libel is not a form of protected free speech. The issue with it resides in the high burden of proof on the libeled party, which in many ways is why so few libel suits go forward, and why so many fail. This is, unfortunately, why many news organizations tend to get away with it as well.
First Lady Melania Trump is currently feeling the pinch when it comes to catching a newspaper on libel charges. Her court case charging the online paper The Daily Mail of libel in insinuating that she previously worked as an escort was recently thrown out by a Maryland judge, although purely on procedural matters (the judge determined the suit should not have been filed in Maryland). While The Daily Mail actually issued a retraction only a few weeks after the original article was published online, Mrs. Trump still filed the suit, correctly claiming that the reporting of pre-existing rumors is no excuse to make defamatory comments. In a separate defamation suit against a Daily Mail-connected blogger in Maryland, Trump’s suit was actually a success.
As of Monday, February 6th, 2017, Mrs. Trump was back at it again, refiling the $150 million lawsuit in New York. This time, her goal is to prove libel occurred by inhibiting her ability to profit from her newfound visibility in the public eye. While the original lawsuit may have succeeded on its own merit, the chances of this lawsuit’s success may be even greater, particularly given this line of argument would not have been possible prior to Donald Trump’s candidacy and subsequent presidential victory.
Avoid libel or any hint of libel. Yes, it’s hard for someone to prove a libel case in court, but that libel could easily be transferred to a case regarding damaging content where punitive damages get awarded. Reputable news sites try to avoid printing unverified rumors for this very reason. Even if what you printed never materializes into a damaging libel suit, you’ll still have to go to court to defend it, and that in and of itself can a burdensome expense, especially for a smaller blogger or news site.
Journalists have long been accused of overstepping the bounds of privacy in order to get a good story. There’s often a fine line that exists for public figures regarding what is and is not considered private, and whether someone who puts himself or herself into the public eye enjoys the same privacy rights as others.
The rather high-profile case between Hulk Hogan and Gawker founder Nick Denton is a good example of this. Gawker placed itself in the crosshairs after publishing a sex video of Hogan and his best friend’s wife. The long and rather contentious legal battle hinged on the fact that, although other media outlets reported on the existence of the tape, Gawker decided to actually publish the tape on its website. The court and a subsequent appeals judge ruled that Hogan’s privacy had indeed been invaded by Gawker, resulting in Hogan (real name Terry Bollea) receiving a judgment for $115 million in compensatory damages and a further $25 million in punitive damages.
Invasion of privacy is often confused as free speech. In such a case, a publication, whether online or otherwise, may believe First Amendment rights to a free press and free speech may apply in publishing such information, particularly if that information has already been discussed by other media publications. Indeed, in reporting the tape’s existence, other media outlets, such as TMZ, shared very similar attributes to The Daily Mail and its publications of pre-existing rumors about Melania Trump. However, other media outlets did not cross that very thin line between potential libel and invasion of privacy. Gawker did, exposing themselves to a lawsuit that was far easier for Hogan to win.
If The Daily Mail had published not only rumors about Melania Trump but also videos and images of her engaging in the practice of an escort, it’s quite likely she would have instead gone with an invasion of privacy lawsuit. Based on an essay from the Reporters Committee for Freedom of the Press, the burden of proof for “invasion of privacy” is much lower than that of libel and defamation, given that the information must be:
- Of a personal nature and so intimate that disclosing it would offend most reasonable people, even if it is true
- Not something most people in the public already knew
- Not particularly newsworthy
- Widely communicated and distributed
With its domain authority and generally high profile, Gawker opened itself up to such a lawsuit after publishing the video. Yes, the information already existed on other high-traffic sites, but those sites refrained from actually publishing the video itself, keeping them from crossing into the realm of invasion of privacy. This also means that should any news organizations have verified evidence that Melania Trump worked as an escort, it’s probably in their best interest to sit on that information and avoid its publication at all.
Invasion of privacy can be broad and often focuses on private matters of a sexual nature, although this is not always the case. While things like revenge porn tend to get people jailed for invasion of privacy in very highly-publicized cases, other invasion of privacy cases often receive much less attention. There are actually four types of privacy invasion that can be legally prosecuted:
- Intrusion of Solitude
- Appropriation of Name or Likeness
- Public Disclosure of Private Facts
- False Light
Invasion of solitude and appropriation of name or likeness are fairly straightforward concepts and are not regularly a concern for online journalists. However, how you go about obtaining information that you subsequently publish may fall under “invasion of privacy” if it involves impersonation and intrusion.
Public disclosure and false light, however, are the two invasion of privacy issues that come up against First Amendment rights quite often. In both cases, the person or publication publishing the information usually does so under a misguided belief that the First Amendment protects such an action. However, private facts of a potentially personal and damaging nature are not protected free speech. Neither is information that may be true, but somewhat misleading, as is the case for “false light”, which covers such situations.
Successful journalism often involves an element of shock and surprise. When journalists uncover illicit affairs, they certainly run the risk of invasion of privacy. However, there’s a keen difference between reporting about something someone did in private and exposing that action for all the world to see in a damaging manner. Sometimes it can be unclear where to draw that line, while at times even reporting on something overwhelmingly private, before it’s come into the public realm on its own, is playing a very dangerous game with privacy rights.
In her book Outrageous Invasions: Celebrities’ Private Lives, Media, and the Law, law professor Susan Barnes explores the ways in which celebrities have lost their privacy rights, as those rights have increasingly been subverted by the guise of free speech and free press. However, if the Hogan case reveals anything, it’s that the right to publish private information, even of celebrities and other public figures, only goes so far. And we may increasingly see more celebrities suing — and winning — in an effort to protect their privacy. This quickly happened when dozens of celebrities had their nude photos stolen and published online, and it will happen again as more celebrities fight back — and likely win — cases where their private lives are exposed.
For online journalists, it’s best to err on the side of caution. Yes, the information you may be sitting on could potentially bring in a lot of clicks and a tremendous amount of ad revenue. But if Gawker’s example is any indication, that won’t make up for the high cost of losing an expensive court battle.
Caveats in Online Free Speech
The very nature of online activity raises far more questions than it answers. After all, the First Amendment and the Constitution were written at a time when something such as the Internet could not have even been conceived. In no small way, the First Amendment was written with physical borders in mind. Nevertheless, the Internet creates a borderless society, and the Supreme Court has already ruled on several cases that cement an individual’s free speech rights online and, in a more general sense, the right to access information from others both nationally and internationally.
Moreover, there are certain types of speech that do exist online that can, and have, caused both confusion and consternation due to the increasingly social nature of the web. Parody and satire materials, most notably from The Onion, have at times been shared and reshared by those who mistakenly believe the published satirical material is true. While some throw charges that satire is a subtle way of publishing lies with impunity, others argue that it is a protected form of speech just as any other.
How, then, does the First Amendment protect these two areas: satire/parody, and international communications? In both cases, the very existence of the internet as a means of communication muddies the once-clear waters for how such communication is treated.
First Amendment in International Waters
Part of the beauty of the First Amendment is in the simplicity its language. By avoiding specific words or phrases that might limit its understanding, the First Amendment allows for easy definition and redefinition in changing times, without inhibiting the very nature and spirit of the words. This has never been more evident when it comes to analyzing how free speech, free press and free expression work in an internationally-connected cyberspace.
Indeed, many individuals using the internet are increasingly doing so to connect with peers overseas. This is accomplished via communicating and sharing information on websites hosted outside of the U.S., while also allowing international citizens to make and utilize sites that are hosted on American soil.
But does the First Amendment still protect a U.S. citizen who, for example, posts comments on a British or German website? And is a Swedish or Japanese citizen protected under American First Amendment rights when posting or sharing information on a U.S. website?
The answer to that lies in interpretations of the First Amendment that have existed since the late 1700s. In his 2010 article for the William and Mary Law School, Territoriality and the First Amendment: Free Speech At – And Beyond – Our Borders, Timothy Zick writes that there are, in effect, three First Amendments based on interpretation: “the intraterritorial, the territorial, and the extraterritorial,” (p. 1545).
In his piece, Zick focuses specifically on the two that most apply to online information flow from an international perspective: the territorial First Amendment, which is an interpretation of free speech as it comes up against the U.S. border (both real and imagined), and the extraterritorial nature of the First Amendment, which explores how the First Amendment affects both U.S. citizens sharing information overseas and international citizens in general.
Zick’s scholarly analysis of the topic, covering both extraterritorial and territorial free speech, can be best understood by his summary on the issue early in his article:
As noted, the First Amendment is certainly less territorial as a result of recent political and judicial judgments. That trend is likely to continue. As policymakers continue to recognize that Americans’ informational, commercial, educational, cultural, and artistic interests do not stop at the water’s edge, the First Amendment will continue to become more cosmopolitan in character. Political and judicial interpretations of free speech, press, and association guarantees will embrace and facilitate the cross-border flow of information. Although territorial governance remains intact and likely will so long as there are states. Governments will also likely continue to experience diminished capacity to control cross-border information flow. In the globalized and digitized era, the most important First Amendment questions will likely relate to the First Amendment’s extraterritorial domain. The First Amendment may become more cosmopolitan in this realm as well, in terms of its influence beyond U.S. borders. However, the United States obviously cannot unilaterally export First Amendment norms and principles abroad. Moreover, courts are likely to remain hesitant to expand First Amendment guarantees beyond U.S. borders. Indeed there are constitutional, diplomatic, theoretical, and other obstacles to further expansion of the extraterritorial First Amendment. But these are not insurmountable. The contours of the extraterritorial First Amendment are still developing, and there are avenues for further expansion. Of course, extraterritoriality may work in more than one direction. Legal, social, and political forces may bring foreign speech regimes to U.S. shores. Hence the First Amendment may also become cosmopolitan in the sense that it must compete with and may be influenced by other speech regimes. The question is whether, as a result, the First Amendment will lose some of its exclusive and exceptional intraterritorial domain,” (pp. 1549-1550).
To put this into layman’s terms, Zick believes that the First Amendment rights to free speech protect both U.S. citizens and international citizens, regardless of which direction that information is flowing. As Zick states earlier in the piece, U.S. policy has long held that the First Amendment is an inalienable right, not just for U.S. citizens, but for everyone. That policy has been expressed at times as a means to an end, such that the U.S. exports free expression and allows others to access information produced within the U.S. so freely to help further those long-held beliefs.
That said, when Zick digs into the details, he makes some interesting conclusions. One is that U.S. citizens do have a right to have access to foreign ideas and beliefs, although the government also maintains the right to deny entry to foreigners who want to share those beliefs. These seemingly incongruous definitions were both defined within the decision of the same 1972 court case, Kleindienst v. Mandel. Applying that court case decision to today, we can assume that the First Amendment protects online users’ rights to access information coming from U.S. websites and foreign websites, but it does not protect the rights of foreigners who want to send that information to U.S. citizens via online networks.
Indeed, at any time, the U.S. government could decide to cut communication channels from foreign nationals in, say, Iran, without infringing on U.S. citizen’s First Amendment rights, or any rights of the Iranian citizens as well.
As far as the First Amendment extending to activities that occur outside of U.S. borders, this boils down mostly to whether or not foreign governments want to enforce U.S. First Amendment rights for both their own citizens and U.S. citizens engaging in activities outside of U.S. borders. In effect, foreign governments have no obligation to protect European allied citizens under U.S. First Amendment rights, nor are they obligated to do so for U.S. citizens.
Furthermore, when a U.S. citizen engages in speech or expressions on a website hosted in another country, he or she may be exposed to legal repercussions under that country’s law. Still, it falls to U.S. courts to determine whether or not to aid foreign countries in their pursuit of activities that are not protected free speech in that country but are protected under U.S. laws. Depending on the nature of the activity, the U.S. may or may not choose to proceed with the requisite compliance, although that U.S. citizen may be barred from entry into that country.
While the internet certainly makes interpreting free speech laws all the more difficult, there are some certainties that still apply. Foreign nationals are only protected under U.S. First Amendment rights to a limited degree, and only when engaging in activity within U.S. borders. U.S. citizens are only protected by U.S. free speech laws within the border as well, although a certain amount of reciprocity does exist between the U.S. and many European allies. Still, the U.S. borders, however soft they may be in an online space, still exist.
Satire and Parody
If the 2016 presidential election made one thing clear, it’s that internet denizens are having some difficulty distinguishing real news from fake news. While parody and satire are not exactly “fake news” in the sense that they’re complete fabrications purposefully intended to mislead and stir up trouble, this has placed the time-honored practice of satire back into the spotlight. Is satire a form of protected free speech in an age where so many people seem to be gullible enough to not only believe and share it with their friends but act on it as well?
The short answer here is that yes, satire and parody are still as protected in an online space as they ever were outside of it. That said, parody and satire do have a certain constitutional litmus test in order to keep the creators from facing legal consequences after its production and dissemination. Based on a number of precedents set by court cases over the years, those who produce satire or works of parody need to be concerned with copyrights, libel, defamation and emotional distress.
Writing for the First Amendment Center, Kyonzte Hughes details out several relevant court cases that helped define what is and is not protected satire and parody under the First Amendment. While the spread of satire and its eventual influence on individuals who read and respond to it has only been enhanced by the internet, there are currently no legal changes to how satire is understood and legislated.
Satire and copyrights
Legal precedent has been established with multiple cases, including Campbell v. Acuff-Rose Music, Inc., Leibovitz v. Paramount Pictures Corporation, Dr. Seuss Enterprises v. Penguin Books USA, and SunTrust Bank v. Houghton Mifflin Co. In all of these cases, the issue specifically came down to the arguments surrounding “fair use”. As most parody and satire requires the use of images, ideas, and sometimes words from other sources in order to create that satire, there are many times in which that satire’s efficacy has been called into question, and its creators pulled into court. In many of these examples, the court has ruled in favor of the satire creators, so long as the actual content contains the satirized material. Courts have also reiterated that satirists are indeed allowed to profit from their satirical material, eliminating one major concern about the creation or satire and parody.
Satire and libel
As with many situations, libel is difficult to prove in court. This holds true with satire as well. In the landmark case Hustler Magazine, Inc. et al. v. Jerry Falwell, the elder Falwell sued Hustler Magazine for depicting him as having had a drunken, sexual encounter in a satirical advertisement. Hustler in several locations within the magazine pointed out that the advertisement was fake and satirical. The case went through several courts’ hands, with the lower courts deciding that, while libel, defamation, and invasion of privacy were not at issue, Falwell did have a right to recompense for emotional distress.
However, the Supreme Court reversed that ruling, stating that public officials and public figures could not collect damages from such instances without proving that “the publication contains a false statement of fact which was made with ‘actual malice,’ i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.” In the case of Hustler Magazine, the advertisement did not fit that definition, as its use of Falwell’s image in the ad was clearly satirical, however hurtful it may have been to his emotional status or image.
This is not to say that some satire cannot be sued successfully on libel charges. However, the burden of proof for this has always been difficult, and it becomes even more difficult when a publication produces content within the realm of satire and parody, and even more so when that figure is well-known.
Hustler Magazine, Inc. et al. v. Jerry Falwell revealed that those on the receiving end of particularly biting satire may indeed feel the need to file a lawsuit for emotional distress. However, the Supreme Court was fairly clear in its ruling in this case, at least as far as it extends to public officials or celebrities. Private citizens, however, may find some legal relief if they do end up as the subject of parody.
The Technology and Marketing Law Blog notes one such example, S.E. v. Chmerkovskiy, in which an obese person with Down Syndrome became the subject of a particularly derisive and embarrassing internet meme. Memes themselves are often considered satire or parody. In this case, “S.E.” sued three parties: the photographer, CBS and CBS News, which posted the meme picture on its website. The lawsuit charged all three with misappropriation and emotional distress. The photographer and CBS settled out of court, while the third party, Valentin Chmerkovskiy, of “Dancing with the Stars” fame, was successfully sued using the invasion of privacy “false light” doctrine.
Much of this, of course, is a distinct reminder that celebrities do indeed have realistic limitations on their free speech, some of which is written into the law. However, even celebrities can find some solace in their free speech protections, though they may not find it when satire is involved.
“FREE SPEECH” by Newton grafitti licensed under CC BY 2.0
“Walled Garden” by MikaJC licensed under CC BY 2.0
“Social Media” by Sean MacEntee licensed under CC BY 2.0
“obscene” by Anna J licensed under CC BY 2.0
“journlist” by uk bd24 licensed under CC BY 2.0
“Stop invasion of privacy” by justyea licensed under CC BY 2.0