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Shades of Gray: First Amendment Rights Not Always Black & White

JOURNALISM LAW (655) DISCUSSION QUESTION: Do you believe that traditional First Amendment protections should also apply to the Internet? Please cite the relevant Supreme Court rulings on this point, and also please give your opinion and thoughts. Please explain your reasoning in detail.

 “First Amendment Protections are not absolute.” This was one of the most intriguing quotes in the textbook, The Law of Journalism and Mass Communication for the Journalism 655 Law class. Based on discussions and readings, especially Chapter 2 on “The First Amendment,” I have started to see that the law, which is black and white, really has more shades of gray than ever imagined when it comes to interpretation and also on a case-by-case basis.

It was interesting to see definitions of Freedom of Speech—and the parameters under which Law of Journalismthe right is protected—and how so many people just throw the term out there, thinking they are protected. From the very birth of the amendments to present day technologies and citing specific cases, the concept of Freedom of Speech is, well, beautiful and to be experienced by every American.

However, that right often comes with limitations and caveats. Freedom of speech covers many platforms, including now, the Internet. I believe First Amendment protections should apply to the Internet, but I also believe that these protections will be evolving as technology evolves. More people are posting to blogs, websites, and all modes of social media, sometimes because they can, and sometimes because they can remain anonymous.

It was interesting to see that sometimes an ISP (Internet service provider) could be brought to court for allowing questionable material to be published on a particular site. Mostly, it is about individuals or publications or companies that post material; they are liable for what they post. When someone decides to publish commentary, stories, photos, or the like on the Internet, they do have freedom of speech, but there are many “unprotected categories” of this right.

For example, the text says, “Political speech enjoys full constitutional protection, while seditious speech, fighting words, obscenity and defamation are unprotected categories.” 

A few other categories that are not protected include: blackmail, extortion, perjury, false advertising, disruptive speech and can cover child pornography, cross burning, and true threats (particularly to national Security), and also to an individual’s security/safety. Freedom of speech cannot cross privacy interests, either. In addition, there are content-neutral laws, also known as time/place/manner laws, which can affect a person’s protection under Freedom of Speech.

One Internet case citing the “true threat” category was about the American Coalition of Life Activists (ACLA), which targeted doctors who performed abortions and placed them on its website (p 115).  Wording on the site “suggested a mafia-type contract be taken out on abortion providers whose “crimes” were compared to the Nazi extermination of Jews during World War II.” 

Four doctors sued the organization, fearing for their lives and inability to continue practicing medicine. They said they were “intentionally intimidated…with a threat of force.” The ACLA was found guilty of “intentionally threatening to harm the doctors.” On appeal, another court upheld that ruling, saying that “true threats arise not from the use of specific words but from the meaning of a message interpreted in context.”

Categorical balancing was a topic brought up in the text that covers, for example, privacy vs. political speech. It explains the extent of harm caused to determine whether the expression falls into punishable category.

For the abortion doctors’ case, the Supreme Court ruling covered the “true threat” category and, therefore, this was a punishable category. It is interesting to see how these cases are brought to court and trial. Sometimes it seems that the outcome can seem like a roll of the dice, so random, but in reality, we have these freedoms—of speech and of the press—and still have to be held accountable as citizens and journalists. The ACLA crossed the line—if one looks at the black and white of the law—and the unprotected categories of Freedom of Speech.  Whether through a website, blog, or social media outlet, what a person says can be seen as a threat or a target for libel, slander and defamation.

As journalists, it might be more of a balancing act. It can come back to ethics and being aware of what the unprotected categories are, but at the same time, we have to have the liberty to publish what we feel is relevant news. It will be interesting to see how protection of our Freedom of the Press and Speech will evolve as more of our work appears on the Internet, and reaches, influences and/or incites the masses.

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