Reach of Online Speech Raises New Issues of Freedom

Gene Policinski

Inside the First Amendment

By Gene Policinski
First Amendment Center vice president/executive director

When the poetic line “Oh what a tangled web we weave …” was penned a few centuries ago, Sir Walter Scott had no idea what irony those words might have when applied to the 21st century’s world of blogs, tweets, Web sites and free expression.

Over just a few days in the last two weeks, these tangled issues were making news:

In Virginia, a woman blogged about the actions of undercover police operations, which she said fascinated her. Her last entry read, “they’re here” — typed, it was reported, just before her arrest for harassment of a police officer.

In New York, a Web site that claimed officials were considering an end to Radio City’s long-standing Christmas spectacular has been sued for defamation by Madison Square Garden; and a real estate developer sued a Web site for publishing court documents, claiming it was done to hurt his business.

In South Carolina, a man was charged with the rarely used offense of criminal libel in connection with inflammatory messages about another man on social-networking sites.

In Washington, D.C., the U.S. military announced it would review policies applying to social networks like Facebook, Twitter and MySpace, with an eye toward security concerns. The Marine Corps went further, ordering a ban on use of the Marine Web network for such activity, though stopping short — for now — of regulating Marines’ private use of such networks on personal computers outside of their jobs.

What all of these news items have in common is that such speech would have had limited reach not that long ago. But the Internet provides the means and opportunity to reach well beyond friends and family, and in doing so increases the potential consequences. And what are the potential consequences for free speakers in an Internet age?

Well, there’s that Virginia prosecution related to detailing undercover police moves. In Maryland a Web-site operator is being sued under a belief that he posted an anonymous, unsupported comment claiming a public official was a sexual predator.

The Web site reports that two men in Florida face five years in state prison for what authorities considered gang-related content on their Web pages — the first prosecutions under a state law passed last year that makes it illegal to use electronic media to “promote” gangs. Both men say the law violates First Amendment rights — in this case, both speech and assembly.

These instances and a slew of disciplinary and defamation flaps in recent years involving student postings on the Web are bringing out new issues and prompting new laws that define First Amendment rights in the 21st century.

A First Amendment Center colleague often notes that “new media” have always invited new regulation. Books tested boundaries and created generations of censors. Movies and even comic books prompted what now are seen by many as excessive and even eccentric codes governing what could be shown or drawn. As a nation, we imposed a “fairness doctrine” on television, realizing only later that it was decreasing discussion on issues rather living up to its name.

The 45 words declaring the protected freedoms of the First Amendment have stood unrevised since 1791. And not that long ago, the Internet was being hailed as the greatest means of interpersonal communication that ever existed. But in little more than a decade, we’re deep into a time when casual comments suddenly have worldwide echoes, and we’re redefining what a “scrawl on the wall” really means. In the process, will we chill real dialogue that may include offensive, irritating or challenging words?

There’s no doubt that criminal actions, defamation, true threats and a host of other evils do exist in our society and must be dealt with. But the challenge ahead is also to limit the limits, not just restrain the speech.

Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., Washington, D.C., 20001. E-mail: [email protected].