Ideas and content we find objectionable often are the basis for tests of freedom of speech and press in the United States, and that has not failed to be the case, so far in the internet era.
Among the early First Amendment cases to address internet app freedom, broadcast-style restrictions on “indecent” communications were part of the Telecommunications Act of 1996. As often is the case, freedom of speech often involves speech (ideas, content) we do not agree with, or are otherwise troublesome.
In the case of Reno v. ACLU, in 1997, the U.S. Supreme Court held that the Telecom Act restrictions on both the “display” and “transmission” of indecent communications online violate the First Amendment.
“Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox,” the court said. “Through the use of Web pages, mail exploders and newsgroups, the same individual can become a pamphleteer.”
There is “no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.”
So far, other cases have dealt with protections for child pornography, again illustrating the principle that tests of freedom of speech often come in troublesome ways apparently unrelated to the arguably central principles of freedom of political speech.
In Ashcroft v. Free Speech Coalition (2002), the Court struck down a federal ban on “virtual” child pornography in the 1996 Child Pornography Prevention Act (CPPA). That case found that a prohibition of images that “appear to be a child” engaging in sexual conduct where no actual children were involved prohibited a substantial amount of protected expression and violated the First Amendment.
In Ashcroft v. ACLU (2002), the Supreme Court reversed a decision of the 3rd U.S. Circuit Court of Appeals to enjoin enforcement of the Child Online Protection Act (COPA), successor to the Communications Decency Act.
Once again, obscenity was the direct issue at hand, not political speech.
The Supreme Court ruled in June 2003 that a law requiring libraries to filter pornographic internet content was lawful. In the United States v. American Library Association case, the Supreme Court ruled that filtering software does not violate the First Amendment, even though it blocks some lawful web sites.
There are other potential examples of unappetizing areas where “free speech” rights will be hard to evaluate and protect. Do terrorist organizations have such rights?
U.S. network neutrality rules recently came into play, as some might argue regulators used common carrier regulation to take away First Amendment free speech rights. All things internet traditionally have been unregulated data services, not a highly-regulated industry using the common carrier framework.
Utility regulation provides far-less freedom than do laws regulating broadcast TV and radio, cable TV, newspapers, magazines and internet media.
Also, much network neutrality arguments premised on promoting freedom actually do not have much--if anything-- to do with actual blocking of content, and quite a lot to do with the business models of various participants in the internet value chain. Nor is it ever easy to separate the permissible management of congestion on communication networks (lawful) and the separate business practices relating to how networks price and package their access services.
The new wave of threats actually do not come from the government restricting freedom of speech, but in other ways. In other words, it arguably is no longer enough to insist that the government be barred from restricting speech.
In many cases, other actors (universities or public schools) ban speech to protect the sensitivities of people who do not wish to hear ideas they disagree with. That is the problem, some might argue, with “hate speech” codes. In another context, “hate speech” often is political speech, and cannot be blocked by the government, though often such speech is blocked by non-government actors.
That might be the big new development: the First Amendment prevents the government from infringing freedom. The First Amendment does not protect freedom when other actors (firms, people, organizations) are the sources of restrictions.