Re-Thinking the First Amendment Protections [Second Draft]

-- By NatalieYoukel - 14 Jan 2016

Introduction

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).

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.

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.

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."

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.”

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.

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.

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.

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.

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.

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.

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.

There are two primary places where this argument needs to deal with fundamental objections, which we can call the legal and the philosophical intersections.

First, this is law school, so when we write about law, we do so precisely. The Supreme Court is a court, which decides cases. Whatever criminal law you think it should be willing to uphold some legislature must make and somebody must then litigate to challenge on First Amendment grounds. If you want to discuss such possible phenomena, you must be far more precise in doing so than you are here.

Whatever you may write on that subject, the central claim will involve the Court, it appears, in some "exception" you think should be made, which actually means, I think, that you want the Court to find under the relevant standard, which is strict scrutiny, that there is a compelling government interest being achieved by the most narrowly tailored means. You are going, therefore, in some context, to argue that a compelling government interest, presumably preventing children from taunting one another, is achieved by the means least restrictive of speech if we criminalize taunting by children. Perhaps you can make out such an argument, though I think it is exceedingly unlikely. At any rate, you must try.

Which leads to the second class of objection. I see no moral case whatever, either in this essay or in any one I can speculate up, for applying criminal sanctions to the horrible things children say to one another. We apply criminal law sparingly to acts of children because we understand that full moral responsibility for the consequences of their actions is not an appropriate expectation. To criminalize behavior of children that is not criminal in adults is, it seems to me, an absolute moral wrong. Moreover, the moral causation argument advanced here seems to me very flimsy. To say that suicide or other acts of desperation by children are caused by other children's savage words is just as evidently wrong as to say that a child who is killed by tetanus died of a cut, or that a child who freezes to death in the street died of inadequate clothing. In all cases it is clear that the child died because of inadequate care. We are accustomed to having a society so unrobust in its methods of caring for people (including but not limited to children) that its most vulnerable people, including those who suffer from mental distress and illness, are susceptible to crises—including those that cause hospitalization, suicide, and harm to others—precipitated by stresses that a healthy society would help its vulnerable members to weather or avoid.

In the same way, then, that it vindicates a small morality at the expense of the larger social responsibilities we like to ignore to imprison the drug addict or criminalize dangerous forms of self-medication for conditions we do not accept our responsibility to treat in the poor, the idea of subjecting children to criminal punishment for behavior the slightest acquaintance with literature will show is simply the universal reality of human child nature reduces to invisibility the real requirement to provide good mental health treatment as well as tetanus vaccinations in a public health context that reaches every human child in our society.

Could one, from a constitutional perspective, claim that the "more speech" of good psychotherapy for distressed young people is somehow not a superior alternative to the "less speech" approaches of social media censorship and outright criminalization? Why is harm done by speech any less capable of being righted by more speech here than in the case of sedition, or religious or racial bigotry, or any of the other contexts in which we express our most important and distinctive social value by the tolerance we show to the most repellent error where reason is left free, as Jefferson said, to combat it?

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.