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Undergraduate Writing The First Amendment
Needs To Be Implemented and Enforced Only Some of the Time American University Washington, DC December 1, 1999 "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances" (First Amendment of the Constitution). The First Amendment has been continuously used as protection for the press, the media and any person who wished to express his thoughts without legal consequence. It has allowed people to say what they think without government regulation. However, because of the easy accessibility to the Internet and the ever rising increase of newcomers to the World Wide Web, the government has taken it upon itself to censor material on the Internet. This censorship is not only unconstitutional, but it decreases the American citizens' personal responsibilities, which in turn decreases their liberties. Government involvement in cyberspace creates more problems than that of censorship alone. It diminishes the idea of a free market society, a society that Americans pride themselves on for sustaining. Americans would be irate if the government owned and controlled newspapers and periodical journals. The obvious reason is because citizens like the fact that the free market, not the government, regulates these published works, so there should be no difference regarding the Internet. However, the government has chosen a number of controversial activities and web sites to regulate and prohibit. The issue of censorship of "inappropriate material" becomes a game of who has the power. The Legislative Branch and district courts are currently trying to censor pornography on the Internet. The government is attempting to regulate material as to "protect" its citizens from offensive materials. The problem that occurs then is, if they want to censor pornography on the Internet then they should censor pornographic magazines and movies as well. But that would never happen because it would be an infringement on the First Amendment. There seems to be no difference between viewing pornography on the Internet and viewing it in Playboy, except for the fact that the government wants to get its regulatory foot in the Internet door. The government does not seem to believe that the American public is responsible enough to know what they should view and because of this the State does not want to give them the freedom to view what they want to view. To have freedom, a person must assume responsibility. If the government decides that its citizens are not responsible enough to view certain material then it is taking away the citizen's freedom to choose. Jonathan Wallace of USA Today explains, "As consumers, we invite the broadcast media into our homes; they do not walk in of their own accord. The same holds true for computers with Internet connections. In each case, we have the right to choose the medium and the responsibility for controlling our children's access to it. The pervasiveness doctrine snatches from families the responsibility for making such choices and gives it to politicians and bureaucrats" (33). By censoring material from the Internet, the State has assumed the responsibility for its citizens and thus taken away their freedom to decide what the public can and cannot access from cyber space. Libraries are suffering from similar problems as individual citizens are. One of the most difficult problems libraries face is how to deal with a patron who views material that another may find offensive. "Some librarians believe that a patron should be prohibited from viewing any site that offends other patrons. Some libraries have adopted formal Internet-use policies that explicitly state that if a library user is offended by the material that another user is viewing, he should be told that he or she is in violation of library policy, and is required to stop viewing it. Other libraries have attempted to deal with the issue through the use of filtering software" (Schrader 9). Libraries are an environment of intellectual freedom and to limit an individual's access to information would be a contradiction. It would be almost impossible to find a librarian who prohibits a patron from reading a book if another person was offended. Like wise, it would be difficult to find a parent who believes that all pornography, violent movies, and cigarette advertisements should be prohibited because their children might see them. Libraries stand for more access, not less and individuals have the right to seek and receive information without limitations. In November of 1998 United States District Judge Leonie Brinkema stated, "The use of blocking software in libraries offends the guarantee of free speech and is unconstitutional" (Tremblay). Censorship also has the ability to be harmful to one's health. The FDA does not permit doctors to access reprints of medical journal articles from pharmaceutical manufacturers, even if the reprint discloses that the use of the drug has not been approved by the FDA. "The FDA has extended a ban to manufacturer dissemination of independently generate, peer-reviewed research reports that discuss off-label uses, such as chapters from medical textbooks and reprints of journal articles" (Troy). Federal Judge Royce Lambreth rejected the FDA's argument that the promotional speech of drug manufacturers exists outside the range of the First Amendment. As the FDA prohibits information about off-label medication, they are putting the public at risk. Patients could receive alternative treatment if their doctors have access to information about off-label drugs. The FDA is limiting the medical community's freedom on the knowledge of medications. Censorship diminishing the freedom of speech is not the only problem Americans face. Companies that conduct their business on the Internet encounter the dilemma of taxation without representation. "Businesses that enthusiastically use the Internet to cross state borders should temper that enthusiasm with the understanding that if they fail to take the necessary precautions, they may inadvertently subject themselves to the taxing jurisdiction of states with which they have had no previous contact . . . Businesses that subject themselves to the taxing jurisdiction of a state will be obligated to collect and pay that state's sales and use taxes, and will possibly have to pay that state's income taxes" (Nathanson 94). By subjecting themselves to this obligation, businesses will be at an economic disadvantage, administratively and competitively. Because businesses conduct sales across virtual borders, the State does not have the right to tax them. The Supreme Court has ruled that states cannot require a business to pay its sales taxes unless the business has some physical presence in the state. At the time of the ruling, however, the test to decide if a state could be taxed did not have the Internet in mind. Companies are at a disadvantage and their freedom to operate in the free market has been decreased because of expenses. Because the Internet and the World Wide Web are relatively new, its properties tend to be more frightening and threatening than other forms of written literature. Solutions to censorship of the Internet have been suggested, but there have been very few agreements on how to solve the problem. The best way to solve the problem of government regulation is for the American citizens to solve the problem themselves. If freedom includes the right to access whatever type of material one chooses to view, then it also includes the right for people not to view material. If a parent does not want his child to view pornographic material on the Internet, then it is his responsibility to either put a block on pornographic web sites or to teach his child that it is not appropriate to view such material. It is a parent's job to censor material for his children, not the government's. Accordingly, if a patron at a library is offended by material someone else is viewing on the Internet, then it is his obligation to look away. "The Washington Coalition Against Censorship's new original T-shirt design advocates the only solution we can trust to preserve our First Amendment liberties: 'Use your brain: the filter you were born with'" (Tremblay 16). The government, however, thinks that people are not responsible enough to make their own decisions and it strips away their freedom to do so. To this solution there can be problems. Parents can not be with their children every second of the day and pornographic, violent, and inappropriate materials can easily be at the hands of minors. A parent may be able to block out pornographic sites, but the fact of the matter is that hundreds of new pornographic sites enter the World Wide Web every day. The public would have to work incomprehensibly hard to avoid inappropriate material. Another solution to censorship is to create a new suffix for inappropriate materials. For pornography, for example, instead of a site ending in ".com" it could end in ".sex" so that any web site that is ".sex" can be blocked out. This would solve problems for businesses that block out Internet material as well because it would save people the time of blocking out the new sites every day. People can also use filtering software to filter out unwanted material. The problem with this solution is that the software may filter out useful material and legitimate web sites as well. For example, an appeals court case about narcotics could be filtered out because it was written by Walter Wager. The software would have been set to filter out gambling material and instead filtered out a legitimate site. Businesses can defend themselves against state taxes on virtual presence through several ways. They should avoid providing technical support, avoid repair or diagnostic services, avoid owning or leasing physical property, and avoid maintaining any telecommunication linkage. The problem to this solution is that a company may reside in one state, but use an Internet server based in another state. The state in which the server is based can then tax the company who is using their services. "We are creating a world where anyone anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity. Your legal concepts of property, expression, identity, movement and context do not apply to us. They are based on matter. There is no matter here. In the United States, you are creating a law, the Telecommunications Reform Act, which repudiates your own Constitution and insults the dreams of Jefferson, Washington, Mill, Madison, de Tocqueville, and Brandeis. These dreams must now be born anew in the people" (Davos). The Internet and the World Wide Web create a multitude of opportunities for business to expand world wide, and for people to learn about the world with a click of the button. The Government, however, seems to be doing all it can to control something that does not tangibly exist, but virtually. By trying to govern such easily accessed information, the government begins infringing on the rights of its citizens. For the sake of the First Amendment and that of free speech hopefully censorship on the Internet will fade for intellectual freedom. "We will create civilization of the Mind in Cyberspace. May it be more humane and fair than the world our governments have made before" (Davos). Sources
[Ed. note: See http://www.szasz.com/indianapolis.htm] Copyright 1999, Shelly Clay |