Free Speech and Censorship Laws

Free speech and censorship laws have clashed for a very long time in this country. On one hand, we have the constitutional right to free speech. On the other hand, there are limitations that can be applied on a case-by-case basis. In short, speech can be censored if it includes obscenity, child pornography, or the incitement of imminent lawless action. The Supreme Court has faced a multitude of cases in these contexts. For example, in Schenck v. United States, the court ruled that freedom of speech does not include the right to incite actions that would harm others. In Roth v. United States, it held that it is unlawful to make or distribute obscene materials. In United States v. O’Brien, it held that it is unlawful to burn draft cards as an anti-war protest. In Hazelwood School District v. Kuhlmeier, it ruled that it is unlawful to permit students to print articles in a school newspaper over the objections of the school administration. In Bethel School District #43 v. Fraser, the court held that it is illegal for students to make obscene speech at a school-sponsored event. Furthermore, in Morse v. Frederick, it held that students cannot advocate illegal drug use at a school-sponsored event. The point is that even though there are a vast amount of constitutionally-protected rights, yet there are certain limitations.

How does the First Amendment apply to private social media platforms?

The First Amendment is designed to limit government agencies from encroaching upon its citizen’s rights. In recent years, private social media platforms – e.g., Facebook, Twitter, Instagram – have had discretion to limit, control, or censor online speech of their users. It is certainly arguable that the state and federal constitutions should also apply to private social media platforms because truth and falsity have always clashed with each other during the course of history. There are several schools of thought that analyze free speech rights based on the freedom of expression. First, one idea is that government should not change or alter the marketplace of ideas with censorship. Second, the other idea is that people should have the liberty to express themselves in society without reservation. So, if the social media platforms are granted censorship rights, then it would prevent liberty and growth. Now, more recently, in Packingham v. North Carolina, the Supreme Court acknowledged the fact that speech is taking place on social media platforms more than anywhere else. As such, the State Action Doctrine’s application should be reevaluated by the legislators.

The Justice Department has proposed the limitation of protection towards internet companies in light of the recent circumstances. This new proposal is designed to make internet and technology companies more responsible in how they police online content. One reason is because there has been a significant increase in publishing and posting illicit or harmful content on social media websites. This type of unlawful speech has caused problems for internet companies and their users. It has caused the victims to take legal action against the culprits which in turn has dragged social media websites into court.

How are the Internet Service Providers protected?

Internet service providers (i.e., interactive computer service providers) have been protected by the Communications Decency Act – codified under 47 U.S.C. Section 230 – which states in relevant part: “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.” So, in essence, this federal statute protects social media platforms from liability if their users publish illegal content. This statute has carved out exceptions for certain criminal and intellectual property violations such as copyright infringement. It also does not apply to sex trafficking or prostitution. As such, based on the recent events, there have been proposals to update this law.

It’s important to know your legal rights and responsibilities when it comes to free speech and censorship laws. Please contact our law firm to speak with an internet and technology attorney at your earliest convenience.