You know elections are upon us when politicians start talking about wanting to “close up” the Internet, or censor Twitter and Facebook. Throw in a couple terrorist attacks and you have the perfect storm for loss of cherished First Amendment rights.
Donald Trump’s suggestion that America should consider “closing up the Internet in some way to fight Islamic State terrorists in cyberspace” illustrates the danger lurking around the corner for any disfavored speech. In the early days of the Internet, the U.S. government took the lead in attempting to censor ‘indecent’ online communications, by passing the “Communications Decency Act (“CDA”).” Deemed the “Great Internet Sex Panic of 1995,” politicians in that time saw adult websites as a threat to the foundations of society, so they attempted to “close up” that part of the Internet. What remains of the CDA is now often cited as a protection of free speech (i.e., “Section 230”), but the bulk of the legislation was struck down by a unanimous Supreme Court in 1997. The Court could spot that blatant censorship attempt a mile away.
The First Amendment was once held sacred — particularly when it came to online communications. The Internet was everyone’s soap box, where the user didn’t need big media money to get a message out. The courts acted quickly to strike down laws that conflicted with free expression rights.
Now the Senate is considering legislation that would force social media companies to monitor posts, and report any “terrorist activity” to the government. Sen. Diane Feinstein did some investigating and found that while sites like Facebook, YouTube and Twitter take down content in response to valid abuse reports, they do not proactively monitor their networks, or report suspected violations to the government. “I think they should,” she said at a recent Judiciary Committee hearing.
Of course, the entire legal premise on which most online service providers operate is that they are not required to monitor the content of third party posts, or scour their networks for references to potentially unlawful activity. Imposing that kind of burden could easily bring Internet traffic to a screeching halt, given the manpower, expense, and legal risks associated with operating an online service under those conditions.
However, the government has been busy laying the groundwork for imposing the burden of monitoring and censoring online speech in numerous ways; beginning with the startling life sentence handed down against the operator of SilkRoad.com, the passage of the SAVE Act, the criminal prosecution of escort advertising networks, and the intimidation of credit card processors associated with Backpage.com (later found to be unconstitutional). Each of these actions represents an attempt to hold an online service provider responsible for third party posts or advertisements.
Some of those calling for the proverbial heads of social network operators for permitting uncensored use of their networks rely on a provision of the USA Patriot Act, which prohibits anyone from providing “material support” to a terrorist organization. If this action is prohibited, how can Twitter get away with providing a network for distribution of jihadist propaganda? Or so the argument goes. Despite Supreme Court justices expressing some “grave concerns” with the constitutionality of that prohibition under the First Amendment, the law was upheld in 2010. Thus began the gradual chipping away at what used to be a clear prohibition on criminalizing political speech.
Others who are upset with an open marketplace of ideas cite to legal obligations imposed on Internet service providers to remove and report child pornography, or take down reportedly infringing material under the DMCA, as evidence the government already has the tools to create a valid, online censorship regime. Each of these instances can be distinguished from the wholesale prohibition of online communications envisioned by those desperate to find a quick fix for the complicated threat of terrorism facing today’s world populace.
Child pornography falls into one of the rare, historically unprotected categories of speech, given its unique, horrific nature – and the fact that it records the criminal act of child abuse. DMCA takedowns do not involve censoring speech by the government, but the civil enforcement of intellectual property rights. The targeted material may still be protected by the First Amendment, but owned by someone with superior rights to control its distribution. Mixing all these potential ‘options’ into a big, convoluted soup encourages the talking heads and politicians to conclude that there “must be a way” to close up the Internet, and keep us safe.
Renowned enemy of the First Amendment, Eric Posner, uses the threat posed by ISIS to promote “new thinking about the limits on freedom of speech.” His latest attack on one of civilization’s most sacred values proposes a law that would criminalize access to websites that glorify or provide encouragement for ISIS. Aside from the fact that true jihadists would likely use encrypted communications to evade detection, and investigators would lose the ability to monitor and track threatening communications, censorship never works and often backfires. Typically such laws call more attention to the censored speech or inadvertently silence opposition views as well. History proves that the cure for bad speech is more speech, not censorship. While recent calls to clamp down on free speech rights have been effectively mocked21 by civil libertarians, the proposals are becoming too frequent for comfort. Should one of these proposals gain traction, be prepared for a demand to block some type of erotic speech that a legislator decides is too extreme for his or her tastes. That’s exactly what happened when Iraq started blocking terrorist’s speech earlier this year — the ban on pornography soon followed.
In any other time, the author would conclude this article with a calming observation that the First Amendment protects offensive and even hateful speech, and that would be the end of it. The calls for censorship would eventually be quelled by cooler heads that were well-grounded in constitutional restraint on governmental power.
But we live in a time when Yale University students are perfectly willing to sign a petition to repeal their First Amendment rights (including the right to petition). We also live in a world of trigger warnings, safe spaces and abundant micro-aggressions, where university professors call for some “muscle” to kick journalists out of public protests.
The First Amendment was once held sacred — particularly when it came to online communications. The Internet was everyone’s soap box, where the user didn’t need big media money to get a message out. The courts acted quickly to strike down laws that conflicted with free expression rights.
However, in a time when 34 percent of poll respondents say the First Amendment goes too far, and the same percentage have no idea what rights the First Amendment protects, the bedrock principles that have formed the basic protections for online speech are on shaky ground. Let’s hope they survive another election cycle.
Lawrence G. Walters is a First Amendment attorney and operator of the Walters Law Group. He has practiced law for over 25 years and is a vocal advocate for free speech rights. Walters is the past president and National Chairman of the First Amendment Lawyers Association, and a widely published author on issues involving censorship and the First Amendment.
