Law in the Internet Society

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NatalieYoukelSecondEssay 3 - 14 Jan 2016 - Main.NatalieYoukel
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How Protected Speech Places a Price Tag on the Lives of Our Youth

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Re-Thinking the First Amendment Protections [Second Draft]

 
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-- By NatalieYoukel - 10 Dec 2015
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-- By NatalieYoukel - 14 Jan 2016
 

Introduction

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The advent of the Internet brought with it extraordinary opportunities for individuals and/or groups of individuals to express opinions – good, bad, and ugly. On one hand the Internet has provided individuals worldwide with immediate access to an infinite amount of information not previously accessible. But the freedom afforded by the Internet, like most other services, is susceptible to abuse. Cyber bullies, racists, and terrorists, among others, have abused the Internet to target helpless victims with hateful speech or actions that invade personal privacy, ruin reputations, or spread discriminatory thoughts. These actions have occurred primarily as a result of social media platforms, such as chat rooms, blogging Web sites (Blogspot), video sites (YouTube), social networking sites (Facebook, MySpace, Twitter), and electronic bulletin boards or forums (Reddit).
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The advent of the Internet brought with it extraordinary opportunities for individuals and/or groups of individuals to collectively share and promote ideas or ideals, as well as to express opinions – good, bad, and ugly. On one hand the Internet has provided individuals worldwide with immediate access to an infinite amount of information not previously accessible. But the freedom afforded by the Internet, like most other services, is susceptible to abuse. Terrorists, religious groups, cyber bullies, homophobics, and racists, among others, have abused the Internet to target helpless victims and/or nations with hateful speech or actions that invade personal privacy, ruin reputations, spread discriminatory thoughts, or instill fear. These actions have occurred primarily as a result of social media platforms, such as chat rooms, blogging Web sites (Blogspot), video sites (YouTube? ), social networking sites (Facebook, MySpace? ), and electronic bulletin boards or forums (Reddit).
 
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Cyberbullying in the US

Asher Brown, Billy Lucas, Ryan Halligan, Megan Meier, Phoebe Prince, Seth Walsh, Tyler Clementi, and Rebecca Sedwick are only a few of the children who took their own lives as a result of cyberbullying. Cyberbullying generally refers to when another child or teenager in the form of threats, harassments, or humiliation intentionally and repeatedly targets a child or adolescent, through the use of Internet technologies.link text. Cyberbullying can take place twenty-four hours of the day, seven days of the week and can reach a child almost anywhere. Furthermore, such harassment can be posted anonymously, accessed by millions, distributed with a click of the mouse, and stored forever.
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The Internet and the First Amendment

The First Amendment of the United States Constitution sets forth the unwavering protection of freedom of speech. Any speech, whether oral or written, was held in Schenk v. United States to be one hundred percent protected unless the speech possesses a "clear and present danger." In order for speech to be deemed a "clear and present danger" and thereby loose its protection under the First Amendment it must be an actual or imminent threat and not mere advocacy or a statement of a threatening idea. This concept makes many threats - whether racial, sexual or violent- protected, as most will never actually cross the line from verbal or written threat to imminent action or behavior.
 
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According to National Voices for Equality Education and Enlightenment during the past year 1 million children were harassed, threatened, or subjected to other forms of cyberbullying on Facebook.link text Furthermore, the Center for Disease Control and Prevention’s 2013 Youth Risk Behavior Surveillance Survey found that 15% of high school students in the US were electronically bullied in 2013.link text In addition, a United States Department of Education report found that approximately 19% of middle school administrators reported that they had to deal with cyberbullying daily or a least once per week.link text
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However, the advent of the Internet has introduced methods of speech not previously considered in the Supreme Court’s opinion in Schenk. With the introduction of the World Wide Web have come new avenues in which to make threatening speech or recruit like-minded or naive individuals. The Web creates an open and free platform of communication and marketing for terror groups to recruit, organize and manage individuals for their sole purpose.
 
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The Fight Between Freedom of Expression and Saving Lives

Even though the number of cyberbullying cases continues to rise each year and an increasing number of children are choosing to take their own lives as a result of cyberthreats and harassment, little has been done to address the problem. This is due to the broad protection afforded to the citizens of the US by the First Amendment of the US Constitution.
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With actual, imminent, or potential threats from Al Qaeda and the Islamic State, among others, making the news almost daily, I believe it is time that the legislature, the judiciary, and politicians re-think the limitless boundaries of the First Amendment's protection of free speech and re-visit the concept of "clear and present danger."
 
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Historically, and as noted by Justice Oliver Wendell Homes Jr. in Schenk v. United States, speech, oral or written, which creates a clear and present danger is not protected under the Constitution. This I believe was a noble idea, and one that very shortly after turned into a noble “ideal.”
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Moreover, in support of re-thinking the protections afforded to free speech, Professor Eric Posner, in an article entitled "ISIS Gives us no Choice but to Consider Limits on Speech" stated that "never before in our history have enemies outside the United States been able to propagate genuinely dangerous ideas on American territory in such an effective way". Posner further states that the Islamic State’s ability to spread ideas that lead directly to terrorist attacks calls for "new thinking about limits on freedom of speech.”
 
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Unfortunately, since the decision in Schenk the Supreme Court has refined the clear and present danger principle to exclude from protection of the First Amendment only speech/threats that incites “imminent lawless action.” This means that unless cyber speech crosses the line into incitement of imminent lawless action, which it rarely ever will, the speech no matter what its effects on children, receives protections under the First Amendment. This is based on the theory that such cyberthreats or harassment are not “imminent” by nature.
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I would first argue, in support of reconsideration of the clear and present danger principle, that where terrorist groups are using web platforms to engage individuals and plan threatening actions - actions that society has seen effectuated- we should not wait until it is too late -imminent- to stop such actions. Waiting until such threats or plans are set in motion only instills greater fear in society and leads to no beneficial outcome for the government and the people. Thus, I believe that the "clear and present danger" principle is inadequate, not incorrect, and should be re-evaluated to account for societal and technological changes.
 
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Furthermore, the Supreme Court has been silent on the issue of cyberbullying within the public school setting. Historically, the Supreme Court has established that a student's constitutional right to freedom of expression will give way to the school's interests in education, order, and discipline if the expression is substantially disruptive, plainly offensive, or perceived to be school sponsored expression. However, the Supreme Court has only addressed student speech that occurs within the school environment, and has not yet directly addressed the question of what protections the Constitution affords student speech that is generated from a student’s home computer while off school property.
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Second, I would argue that the government has a compelling interest in curbing the speech promulgated across the web by such publicized terrorist organizations. Without listing the terrorist actions already executed in the United States, leaving aside the rest of the world, and the increasing death count stemming from such actions I would argue that the government has a compelling interest in protecting life, promoting security, reducing fear, and preserving its reputation.
 
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Not only has the Supreme Court remained silent on the issue of cyberbullying it appears as if state courts and the state legislatures are at odds. For example, just recently the highest New York court struck down an Albany County law that criminalized cyberbullying, holding that the law was overbroad and trampled free speech rights of online bullies.
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Such interests, I believe, could be narrowly executed by the legislature enacting new regulations mandating that social media platforms scan and remove propaganda praising such publicized terrorist organizations. Moreover, like Professor Posner suggested in his article, regulations could be put in place that deter potential consumers from viewing certain websites that promote such organizations. This Posner suggests would help deter the "naive" individuals as opposed to the "sophisticated terrorists." Professor Posner states that in order to effectuate these regulations, penalties could be put in place such as warning letters, fines, and in extreme circumstances, for repeat offenders, jail time.
 
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We Cannot Sit Back and Wait for More Children to be Harmed

Action can be taken on many levels to combat the harm stemming from cyberbullying. However, unless the Supreme Court sheds some light on the issue, individuals and local agencies/schools in fear of trampling individuals’ first amendment rights will do little to address the issue.
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Opposition to Narrowing First Amendment Protections

Understandably, many holes can be poked in the argument that I make. First, an argument can be made that narrowing the types of speech afforded protection goes against the right of people to read and receive political information. Moreover, if the government were to monitor social media platforms to ensure removal, such monitoring may be costly and invade personal privacy. In addition, if information regarding an organization is removed, there is nothing stopping the organization from creating a new online platform.
 
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On a Micro level two things need to happen. First, social platforms should be disabled, as these platforms encourage cyberbullying. However, because this is not feasible and society would loose out on too much monetary gain, it is absolutely necessary that these social media platforms implement a sort of filter/block system that runs searches specifically directed at targeting cyberthreats. Second, the United States School systems need to take a stronger stance in writing school policies and procedures in a way that punishes and deters cyberbullying perpetrators both on school grounds and off.
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Second, a slippery slope argument can be made that by excluding speech promulgated by terrorist organizations across the Web will lead to all kinds of other speech by religious groups and other organizations being prohibited. This is what David Post, a former constitutional law professor, says will lead to a prohibition against dissenting viewpoints.
 
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On a Macro level the Supreme Court needs to take a stand on the issue. In my opinion the easiest way for the Supreme Court to approach the issue is to make cyberbullying an action not afforded protection by the First Amendment in public school settings. I believe that the Supreme Court should make the argument that cyberbullying harms a school’s interests in education, order, and discipline, as the act of cyberbullying is increasingly affecting more and more children each year and leads to a substantial disruption in both the school and sometimes, the community.
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Lastly, the argument can be made that allowing such publicized terrorist organizations to utilize the Web as a form of communication and recruitment actually helps our government by allowing us to monitor the information that is posted and to gain knowledge of potential threats.
 
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That being said, I do not think that the Supreme Court should stop there. In order to truly put a halt to cyberbullying and protect the youth of the US, the Court must create an exception to the First Amendment protections that narrowly defines cyberbullying and criminalizes its behavior. The Court should tailor the exception narrowly and perhaps draw upon Justice Oliver Wendell Homes Jr.’s original “clear and present danger” exception.
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Conclusion

Realistically, a change to protection of speech afforded by the First Amendment is unlikely- at least at this time. However, I believe that if terrorism persists and if such speech continues to engage and recruit individuals across the world, the government will have no choice but to reconsider the types of speech that should be afforded such encompassing and inclusive protection. If that time comes, I think, then, it will beneficial to re-consider and possibly alter the "clear and present danger" principle.
 

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Thank you professor for your comments. After thinking about your comments and after re-reading my paper on cyberbullying I realize that the argument that I was trying to make, although the topic having meaning to me, has many many holes and counter arguments which I did not consider. For the revision, I have decided to try and make a similar argument regarding placing a limit on certain types of speech found on the Internet but I have decided to try and make the argument using a different type of speech. Instead of looking at cyber bullying I have decided to look at speech promulgated on the Web by terrorist organizations. When making my new argument I tried to take into consideration your suggestions surrounding the process of making and implementing such an argument. I hope this draft more clearly explains the justification and governmental interest for limiting speech and better explains the procedures for doing so.


Revision 3r3 - 14 Jan 2016 - 17:57:49 - NatalieYoukel
Revision 2r2 - 09 Jan 2016 - 18:48:16 - EbenMoglen
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