Free Speech

**Key words:** free speech, first amendment, freedom of the press, hate speech, Q-Anon, capitol insurrection, section 230, censorship, harassment, incendiary speech, limitation, hate speech

The First Amendment to the Constitution, “Congress shall make no law...abridging the freedom of speech, or of the press;” is known by many as expression without repercussion. Free speech is exercised everywhere that is deemed appropriate. With the 21st century in full swing, free press has evolved overtime with the printing press to cell phones, and now social media. Freedom of the press, “the right to publish and disseminate information, thoughts, and opinions without restraint or censorship,” (Merriam-Webster) is a central part in understanding free speech in 2021. As generations evolved, the First Amendment has to be interpreted for every new generation. The global world and community is always developing and improving in the ways we see life and the issues that come with that change.

There is not always consensus on the changes, though. The Supreme Court of the United States often struggles to rule on what exactly constitutes protected speech. With the technological advances that brought new ways of communicating with others, it is much tougher for the Supreme Court to put a direct rule or charge based on a violation of The First Amendment done through social media (Video, photos, or tweets). However, they are able to challenge the particular case depending on the degree of the case. Therefore, the First Amendment does not support obscene speech or actions of incitement. Whatever one does will be held against them in any setting, especially the court where free speech is restricted. To an extent, harassment is protected under free speech. But when harassment is discriminatory, the Constitution does not support it.

## Questions Under Consideration

Should any forms of harassment be protected on digital media? How does harassment interrelate with hate speech? The idea of censoring or suppressing free speech can be controversial as people debate the negative and positive impacts of censorship. How can censorship of certain media or content pervade the limitation of expression and thought of Free speech? How are people Affected by it? Are there benefits to hate speech or not? Are extremist groups like Q-Anon held accountable for violations of The First Amendment? Especially with the violation of an incitement at the U.S capital. How can conspiracies theories (Q-Anon), activism, and radicalization challenge free speech? Or How can it be protected under free speech? And How are conspiracy theories dangerous, when it comes to violations of law or injustice acts on the media?

### Connection to Q-Anon

Many people find the restriction of former President Trump's accounts justifiable. For example, some find those actions completely unacceptable under the First Amendment, saying it is a complete violation of the constitution. As mentioned above, the First Amendment does not support violent incentives or instances where obscene speech is used. Just because there can be no law restricting speech does not mean there is room for the encouragement of violence. Newson6.com says, "Some media law experts said banning content by these social media groups is not against free speech." However, with connection to Q-Anon, some people blame the conspiracy theorists for inciting violence for the Capitol insurrection. Therefore, providing the idea that it is a violation of the First Amendment due to the obscene speech and inciting of violence. Newson6.com also says, "Associate Professor at OSU Joey Senat said there's no first Amendment violation as Facebook removes content mentioning 'stop the steal' and Twitter removes more than 70,000 accounts that spread what it calls a Q-Anon conspiracy theory." This statement makes the connection between Q-Anon and whether it is in correspondence or violation of the First Amendment. Joey Senat, also teaches Media Law, and provides the information that private companies have the authority to ban whatever they see fit. "When they see disinformation, partially calls of violence that would undermine our democratic system, then I think those are legitimate reasons for them to censor points of view," Senat said.

## First Amendment

The importance of the First Amendment is to protect the rights of individuals, primarily with the ability to express their ideas through writing books, newspapers, text messages, and now the digital media. The First Amendment allows for people to practice speech and express views that can not be restricted from government officials. For example speech praising violence, racist speech, antiwar speech, and pro-communist speech. With the First Amendment, the government officials can not limit demonstrations of individuals that express particular views. Lawsuits can not be created for emotional distress based on a speech an individual has made about someone else.

But the exception can be if the falsely based claims have defamation, obscenity, fight words, threat, and fraud. The First Amendment, however, does not apply to social media platforms because it was written in the constitution that the government can not restrict free speech it never said anything about private companies. Private companies are liable to restrict an individual's free speech if they feel that person is causing a commotion on their platform and affecting other users. There are a few state legislatures and local governments that have passed laws incorporating the principles of the First Amendment that prohibits employers in the private sector from taking action on constitutionally protected speech (some of these places are: California, Colorado, Connecticut, Louisiana, Missouri, Montana, Nevada, New York, North and South Dakota, South Carolina, Washington, D.C., and Wisconsin).

However that protection can be lost if speech is heinously offensive for employment conditions. The Supreme Court case Packingham v North Carolina case forbid sex offenders from using social media websites, in prevention of “forestalling the illicit lurking and contact” and potential future victims. The North Carolina Supreme Court argued that the law was constitutional, because of “limitation of conduct” and free speech was not restricted. The government wanted to ensure that minors and children were protected from sexual predation online. This is an example of how free speech can be censored towards individuals based on worrisome records by the government. The goal of the government is to protect minors from harm, especially in the media.

## Supreme Court Cases

### List of Cases

These are a few of the cases that have made it to the Supreme Court that ruled against certain outcomes of free speech.

* *Brandenburg* v. *Ohio* (1969)- forbid incitement speech or creating imminent lawless actions. Especially gathering a mob to attack a building. Incitement speech with unknown time can not be forbidden. However in present day January 6th, 2021 there was an incitement at the capitol where a bunch of people came together through social media and hashed out a plan and executed the plan.
* *Miller* v. *California* (1973)- obscenities are punished by law.
* *Cohen* v. *California* (1971)- constitutes obscenity. Obscenities in vulgar words is not punished.
* *Packingham v. North Carolina* (2017) “websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” https://www.mtsu.edu/first-amendment/article/1561/social-media.
* Hate speech is any speech that denigrates a person or persons of membership in social groups due to their gender, race, ethnicity, and sexual orientation. Slurs, malicious stereotypes, hatred speech or violence against certain people.
* The list below is an example of some harmful hate speech and crime that has undermined the social equality of individuals who were harmed psychologically or physically when it comes to the incitement of violence. Many of those who suffer from hate crimes are from marginalized and oppressed communities that have suffered historical social inequity. And continue to suffer the social inequity due to systemic racism and the way the system is set up for those who are “suitable.”
	+ Nazi
	+ Anti-semitic statements on social platforms
	+ Confederate battle flag
	+ Obscenities
	+ Racist antitics

### Freedom of Press

Freedom of press gives news reporters the freedom to criticize the government through statements of defense. A Court ruling of *New York Times v. Sullivan* was a critical backbone in protecting freedom of press. The Court stated “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” The Court allowed for all shorts of debate, especially on public issues regarding government officials and how that affects the general public. The Court introduced “actual malice” which, “test that requires a public figure to demonstrate either recklessness or deliberate falsehood by the news media.” It is difficult for the public to win libel verdicts. To prove libel, one must show that the accused knew the information was false, and that the damage had a significant effect on the accuser's reputation.

Former President Trump has made comments regarding the libel laws by calling them a shame and disgrace that do not represent the American values. His criticism attacked the actual malice standard. Trump was trying to use federal power to retaliate toward several journalists who portrayed a terrible image of him. In 1931, the press clause was added where the protection of state government power was limited. Nearly two centuries after the First Amendment became a part of the Constitution, social media was a new addition to the challenge of free speech and press containing the constitution. However since the First Amendment only limits government regulation of free speech and press, the biggest digital communities like, Facebook, Twitter, YouTube, Reddit are allowed to prohibit or permit speech as they please. With the new age media, it has challenged the First Amendment with the traditional notions of free speech and press. Freedom of press has undergone various changes through the shifts of technology and communications and changes in society.

Several Supreme Court rulings regarding free press are:

* *Branzburg v. Hayes* (1972)
* *Richmond Newspapers v. Virginia* (1980)
* *Cohen v. Cowles Media* (1991)
* *Gitlow v. N.Y. (*1925)
* *Near v. Minnesota (*1931)
* *New York Times Co. v. United States* (1971)

### Section 230

Section 230 provides legal protections to social media companies. The section protects “websites from lawsuits if a user posts something illegal, although there are exceptions for copyright violations, sex work-related material, and violations of federal criminal law.” Interactive computer services should not be treated like third party content or as publishers. This law is regarded as the most important law protecting speech on the internet. The relationship between the First Amendment and Section 230 is that the government has no say on what goes on in the media sites, but companies in a sense are required to moderate content based on political viewpoint, especially if it is unconstitutional.

They can make their own rules to restrict speech if they want. Many tech advocates and public interest groups are worried the law changes and limitations for the scope of Section 230 protections “could have unintended consequences for innovation on the internet and free speech online.” Essentially, it is a lose-lose situation for them. Political figures such as former President Trump have asked for Section 230 to be redefined as “bypassing the authority of Congress and the Courts. He also pushed agencies to collect complaints of political bias that could justify revoking sites’ legal protections.” Now, President Joe Biden wants a complete revoke of Section 230 noting large internet companies are propagating falsehoods. Behind the scenes, there are many changes being made to this section because of the dangers associated with terrorism, harassment and hate speech. However due to the insurrection of the Capitol, Democrats and Republicans are seeking to regulate changes on Section 230. They claim these media companies are flooding with troubling content, disinformation, and helped result in the deadly attack on the US Capitol. Extremist content and conspiracy theories on social media apps are contributing to the violence experienced in society. Lawmakers have begun showing frustration, and want more actions to take place for companies like Facebook, Twitter, and Google.

To avoid getting blocked from an online platform a person must not do the following: Online bully, Online harassment, online criminal activity such as threats of violence, or threats against an individual.

## Censorship

The media is a very powerful modern day tool that can be beneficial if used properly, but it also has negative impacts. Especially today information can spread like wildfire, which gets hard to monitor and regulate. There are several pros and cons regarding free speech:

Pros:

* Saves children from violence
* Obscenities censored from children
* Harmful Advertisement
* Protect personal identity
* Controls hate
* Regulation of mass media

Cons:

* The ignorant stay ignorant
* Violates First Amendment
* Risky motives
* Violates legal rights

Censorship is a way to inhibit people from accessing copyrighted information, from viewing harmful or sensitive content, monitor people, and control internet related crimes. In America censorship is least controlled because the first amendment protects online activities. The US is more regulated, which gives media companies the ability to self censor. But in China the government “blocks a range of websites that contain content related to various historical independences, protests, freedom of speech, and obscenities from its estimated 500 million Internet users.” Censorship can lead to blocking harmful information that can be empowering, untrue, and evidence that can lead to ignorance. Censorship often allows those with wealth and power to control what everyday citizens are able to see and interact with.

Censorship can limit opportunities and it can be very costly. Parler is an example of an app that does not censor content or people because they want people to talk freely and express their  values without the fear of being removed or censored. However in early 2021, Parler had been removed online and from the iOS and Google Play store due to the insurrection that occurred at the Capitol where Parler was said to be a contributing factor. Social media regulation for technological companies is said to be politically motivated. Conservatives believe that their values are being undermined by social media companies that are censoring their voices. Since these companies operate under private terms, if the government ever decided to interfere it will be a violation to the First Amendment. Conservatives suggested that social media apps should become more conservative to favor the value of consumers and inclusive to conservative. Many say that it's a ridiculous ideology and they want that they should create their own platforms to fit their ideologies. The United States' belief that social media platforms should not have to label whether not the information or tweet someone posted is misleading. They see that as censorship because it is seen as censoring or silencing an individual. Others see social platforms favoring the views of one group over the other.

The effect of censorship leaves a colossal impact on the development of social platforms and how individuals can use them. It is used as a way to strengthen propaganda with social media ties. However, these platforms can decimate by censorship. Governments encourage censorship because it can inhibit planned collective actions. There are many risks on social media that have led parents to using family filters, which allow parents to limit the access of certain internet servers, such as adult oriented platforms. More importantly parents want to keep their children safe. So, having a conversation of certain websites to avoid and what to do when you ever come across a web app that is inappropriate. Parents favor censorship for their children because they don’t want the internet or social experience to be traumatizing for their children.

## Harassment

Social media is major outlet for sexual harassment allegations of employees. In Dinah Brin’s article, she says, "You don't have to monitor social media, but we need to encourage employees to bring things to us, whether it is a co-worker's post or their own report of harassment." In working settings, they recommend for employees report any source of harassment that they may be experiencing online. Social media harassment can happen to any age group and can have serious consequences if not handled properly. Online harassment usually creates a disconnect between the harasser and the subject. Harassment can involve offensive messaging and cyberstalking online with an offender that is threatening. Sometimes this even tricking an individual to sending sensitive information and posting for others to view, or, by stigmatizing the excluded individual. In reality people do not feel confident enough to do it. Cyberbullying is a prime example of cyberbullying. Here as some ways to deal with social harassment, if ever in that predicament.

* Don’t engage in harassment or add oxygen to the fire
* Stay positive by expressing empathy
* Report the situation or block the account of the harasser

### Bullying

"Cyberbullying involves the use of information and communication technologies such as e-mail, cell-phone and pager text messages, instant messaging, defamatory personal websites, blogs, online games and defamatory online personal polling websites, to support deliberate, repeated, and hostile behavior by an individual or group that is intended to harm others.” Usually this occurs as a rapid spread audience with unlimited amount of people that are affected by the bullying, even if it was not intended for them.

Some examples include:

* Email
* Instant messaging
* Chat rooms
* Text messaging
* Social networks
* Websites

Cyberbullying fits in the category of online harassment. "Fraping" is when someone tries to ruin the reputation of another by impersonating them with access to their account. "Dissing" is sharing or posting cruel information online to ruin someone's reputation or friendships. "Trolling" is provoking an individual in order to get a response. Just to describe a few, there is also, stalking, phishing, blackmailing, shunning, sexting, and photographs and videos are examples of how someone can get bullied on the internet.

Bullying can cause:

* Anxiety
* Depression
* Suicidal Ideation
* Substance abuse
* Self-esteem problems
* Interpersonal problems
* Family problems
* Academic problem
* Career problems

Cyberbullying on any internet platform can have influences on the development and growth of an individual, especially if they cannot find ways to cope with the stress and social issues they are facing.

### Hate Speech

Social media hate speech can be deadly when it goes offline. Hate speech is a systemic problem that has been embedded in the system that even addressing it seems like a problem. As technology is advancing, it is important to find ways other than censoring to combat hate speech on social media and in reality. Sometimes one has to look at who is mainly contributing to this hate online and why? Words can get twisted and misinterpreted. “Facebook considers hate speech to be a “direct attack” on users based on 'protected characteristics' including race, ethnicity, national origin, sexual orientation and gender identity,” However as the technology is advancing social media companies like Facebook are able to find ways to filter hate speech without affecting everyone else on the apps.

Hate speech can lead to wars, genocides, racism and other conflicts that have happened in history. Parents are urged to talk about racism and discrimination to their children in order to prevent future conflicts that evolve around hate speech. Speech can be seen in the school systems where students of color aren’t protected with their free speech. The same goes for social media people of color are also not protected when it comes to hate online. “ The age of digital media has allowed any online speech or content to be shared by one tap of a screen without a second thought for the consequences.” It's true people do not often think of what they wrote should go on the internet until they are bashed or thought of as insensitive. Sometimes it can be the interpretation of what people wrote. Social media companies need to start being transparent about the content they are removing because in order to regulate hate speech, the rights of freedom of speech shouldn’t be revoked.

## Incendiary Speech

Incendiary speech refers to a person's unprotected right of calling for people to commit illegal or dangerous activities.

### January 6

The debate on incendiary speech was reignited after the Capitol insurrection and the subsequent second impeachment trial of President Donald Trump. The prosecutors and defense attorney's laid out their views on his speech and his Twitter activity immediately before the attack.

Statements from one of the prosecutors said Trump “did not send a mob to yell fire in a crowded theater but to actually set the theater on fire”. The prosecutors contended that Trump’s actions in person and online were not protected by the freedom of speech. Something of particular relevance is the1969 Supreme Court case *Brandenburg* v. *Ohio*. The case sets out that inflammatory speech is not protected by the First Amendment. This includes Trump’s virtual speech. A major takeaway from their argument is that there are unprotected types of speech and social media does not refrain from that.

The defense team, meanwhile, contended in part, “there is no doubt Mr. Trump engaged in constitutionally protected speech that the House has improperly characterized as incitement of insurrection”. This statement was panned by legal experts, though it saved Trump from a Senate conviction.

## Takeaway

* Free speech has its limits, whether its on social media or reality.
* Censorship is a powerful tool that can prevent anyone from spreading misinformation
* Internet Groups turned into movements against political agendas and attack against certain racial groups
* The internet is an outlet for cyberbullying and harassment

## Further Reading

To learn more about hate speech and its effect on radicalization and Q-Anon, visit Radicalization.

Below are websites that provide resources for those who are struggling with cyberbullying on the internet and need to find support system. Or if you need a place to connect with different people.

* The Cybersmile Foundation

* SupportGroupsCentral
* Anxiety Depression Association of America
* ZenCare
* Wisdo

Or you can visit other wiki pages to get more information on topics related to free speech:

* Body Image/ED/Body Dysmorphia
* Fitness and Social Media
* Is Digital Media Bad For Mental Health?
* Forms of Mental Illness
* Political Engagement
* Polarization
* Spread of Political Ideas and Hostility
* Misinformation
* Digital Communities and Natural Disasters
* Anger and Outrage
* Radicalization
* Standoms and Parasocial Relationships

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