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.

This discussion doesn't make any sense to me. No one supposes that these "platforms" you are talking about are unable to make and enforce policies concerning what is published on their "platforms," or that they will not at government request make and enforce such policies with respect to speech advocating violence that falls far short of the clear and present danger required for securing judicial approval of prior restraint. The whole subject is a "red herring." Nor can we suppose, just "because the Internet," that there is something wrong with the particular proposition that government should not engage in prior restraints on speech unless the imminence of the consequences justifies preventing speech rather than dealing with those consequences on their own.

Perhaps we are to believe that there is something about this form of violence in society based on a complex mixture of religious and social strifes that justifies reversing the conclusion we built up over hundreds of years of experience with other forms of religiously- and socially-motivated violence. But those who framed and those who developed this body of our civil liberty were perfectly acquainted with the same problems that are supposed to justify the opposite conclusion here. Perhaps there wasn't any First Amendment thinker before Eric Posner whose views needed to be discussed. But I'm puzzled about why.