A New Makeover: The Need For A New And Improved First Amendment

-- By BrittanyMorgan - 13 May 2013

The First Amendment: Freedom Of Speech And Privacy Rights

Throughout the twenty first century, the First Amendment of the United States Constitution, Freedom of Speech, which prohibits the abridging of the freedom of speech, has been losing credibility and value throughout the United States. Freedom of speech, a phrase that at one point meant so much to the American people has lost its or has others lost in its meaning and significance. With freedom of speech comes the right to speak and conduct oneself in a private or intimate manner. The two rights and powers are often interconnected. Facebook has stripped the American people of these rights in a more harmful way than anyone could have possibly imagined. Specifically, two major influential forces in the United States, education and politics have tapped into the Facebook phenomenon and taken or stolen some of its power, control and dominance.

Historical And Legal Background Of Freedom Of Speech

In order to better understand this, it is first important to address some background and legal information surrounding the First Amendment. Legally, regulations for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment. However, content neutral regulations on time, place or manner are valid if they are designed to serve a substantial government interest and do not unreasonably limit reasonable alternative avenues of communication (Renton v. Playtime Theatres, Inc.) Here, the government must carry this burden of proof. The government typically meets this standard unless the challenger casts direct doubt on the government’s rationale by demonstrating that there is insufficient evidence, i.e., that there is not enough or good enough evidence to support the rationale or that the evidence disputes the government’s factual findings. The city can rely on any evidence that is “reasonably believed to be relevant” and fairly supports the government’s rationale for the regulation (Id). This history and the applicable case law highlight the importance of the First Amendment. Courts have been quick to invalidate laws that restrict the freedom of speech of the American people. Further, courts have refused to substantially limit the free speech rights of the American people even when the speech at issue is hateful or inappropriate.

Interestingly, in today’s modern world, with the development of social networking sites, such as Facebook, the government, the judiciary and the American people are not as deferential to the First Amendment. Freedom of speech and privacy rights no longer sit on their golden pedestal, in their ivory tower staring down at the land of the free. What do we have instead? Two images. Mark Zuckerberg and his $13.3 billion.

“Government Agencies, Colleges Demand Applicants’ Facebook Passwords”

Bob Sullivan addresses a very fitting example of this in his article titled, “Government agencies, colleges demand applicants’ Facebook passwords”. In this article, Sullivan discusses how colleges and employers are strongly encouraging (almost to the point of forcing) employees and students to give them access to their social networking sites, such as Facebook. For example, some colleges and employers ask candidates to log into their accounts and let interviewers search through their most private and intimate information. Other student-athletes are asked to “friend” on Facebook at least one coach or compliance officer, which would give that person access to their “friends-only” posts. Previously, some applicants were asked to share their user name and password, which would allow these officials to snoop through candidates’ accounts on their own terms and at their leisure. However, the ACLU got involved and stopped that practice. Bradley Shear, a Washington D.C. lawyer states,

“Both schools and employers are violating the First Amendment with demands for access to otherwise private social media content… I can’t believe some people think its OK to do this… Maybe it’s OK if you live in a totalitarian regime, but we still have a Constitution to protect us. It’s not a far leap from reading people’s Facebook posts to reading their email… As a society, where are we going to draw the line?”

A Cry For Help: The Need For A New And Improved First Amendment

Bradley and the ACLU are not the only ones outraged by this practice. Many other challengers and scholars have protested this practice and shared with the world their outrage. I personally agree with Bradley. This type of practice certainly calls into question the credibility and value of the First Amendment and privacy rights of the American people. Additionally, it creates uncertainty and vulnerability. Where does the First Amendment stand in today’s modern world? Clearly, it has significant authority but does it have real power? Can the First Amendment be effectively enforced today with the expansion of the Internet and the increasing influence of new technology?

I personally believe that as a society, we are not yet equip to handle the First Amendment in today’s twenty-first century, Internet and technology driven modern day world. We must create new laws that can accommodate for these new developments. We must shape and amend the Constitution and the amendments in order to better suit the Internet and new technology. Are the United States and other countries doing this? Not quite. In the UK, the government has created new laws that allow them to monitor calls, emails, texts and website visits of everyone in the UK (legislation set to be announced soon). Here, Internet firms will be required to give intelligence agency GCHQ access to communications on demand. The purposes of the new laws are two-fold: crime prevention and terrorism preemption. Although these goals are valid (and the government should be implementing protective actions), these new laws have outraged civil liberties groups and scholars, as many believe them to be unnecessary and simply a way for the government to snoop on the public. The United States must work with its three branches of government to change or amend the First Amendment to better protect the American people in today’s modern day, technologically driven world.

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