On March 19, 1997, the Supreme Court first addressed the constitutionality of online speech. The oral argument that day was Janet Reno, Attorney General v. American Civil Liberties Union. The case considered a new law by Congress, the Communications Decency Act, which attempted to regulate offensive or “indecent” communications over the Internet. Civil libertarians were up in arms over this law. Led by online activist groups like the Electronic Frontier Foundation, Internet advocates argued that the World Wide Web should not be regulated with the same degree of scrutiny that the government applied to other communications media such as television.
As an example of the difference between different technologies, and the influence that government can exert, consider the finale of the 2004 Super Bowl halftime show. Janet Jackson’s “wardrobe malfunction” resulted in a $550,000 fine being levied by the Federal Communications Commission against CBS. A federal judge later dismissed the fine. But Internet activists were concerned that applying similar standards to the Web, where lurid content regularly commingles and even overlaps with profound political speech, might result in a chilled environment for free speech. In the Reno v. ACLU case, the Supreme Court agreed with the activists and struck down key portions of the Communications Decency Act as unconstitutional.
In the twenty-first century, however, the controversies over free speech on the Internet persist. In June 2010, Secretary of Homeland Security, Janet Napolitano, addressed the national convention of the American Constitution Society on the subject of the executive branch’s role in balancing civil liberties protections and national security concerns. Among her remarks, Napolitano addressed potential trade-offs Americans might need to accept to advance national security. One of these trade-offs focused on the Internet and free speech: “The fact is,” Napolitano said, “the First Amendment protects radical opinions. But we need the legal tools to do things like monitor the recruitment of terrorists via the Internet.” 1
As you answer the exercises below, think about the following questions: how can the United States preserve free expression and creative potential online, but simultaneously discourage or maintain oversight over terrorist or hate groups who use the Internet to communicate online and organize illegal acts?
Remarks by Secretary Napolitano at American Constitution Society National Convention; Release Date: June 21, 2010. Washington, D.C.: American Constitution Society. Available at: http://www.dhs.gov/ynews/speeches/sp_1277158211019.shtm
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Test your current understanding of the First Amendment at: http://www.teachfirstamendment.org/quiz.html
You can also study the site to learn more about efforts to protect newspapers and free speech at high schools across America, and look up ways to become more involved in these debates. |
| 1a. Which of the following is not explicitly protected by the First Amendment: assembly, petition, privacy, or the press? |
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| 1b. Do the federal courts have the right to send a journalist to jail for refusing to reveal a news source? Do you think this is justified? Why or why not? |
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| 1c. Which of the following do you think material on the Internet is most like: speech by individual citizens, programming by broadcast television stations, or reporting by newspapers?
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| 1d. Should government be able to regulate offensive or pornographic content on the Internet? Why or why not? |
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| The Council on Foreign Relations is a think tank concerned with American foreign policy. Read over its background report on “Terrorists and the Internet” at http://www.cfr.org/publication/10005/terrorists_and_the_internet.html. |
| 2a. How and why do terrorist organizations use the internet to support their objectives? |
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| 2b. How have governments responded to terrorist websites? |
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| 2c. Some government officials have argued for greater government regulation of the Internet to combat terrorism. Civil liberties advocates have warned against a “slippery slope,” in which governments will increasingly regulate more Internet speech in the name of national security. Where do you think the balance should be struck between free speech on the Internet and national security?
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