Internet Censorship and the Freedom of Speech
December 19, 1999
Since it was first drafted in 1776, the United States Constitution has constantly been scrutinized and amended to adhere to changes in society; it has evolved into the rules and regulations that are used to control today’s nation. On the other hand, while the constitution provides the rules for liberty, there have also been many attempts to abridge certain freedoms of the American public. One of the major attacks on the Constitution has been against the First Amendment which provides that:
“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 to peaceably assemble, and to petition the government for a redress of grievances.” (Rice 37)
The Supreme Court has had many interpretations of this amendment with regards to freedom of speech. Governmental regulation of “free speech” has primarily been seen in the media. Television, radio, and other forms of information communication have battled with the Supreme Court over what “freedom of speech” in the First Amendment actually implicates.
One of the main controversies that has been debated over is the right to censor media. Radio and television programs are being subjected to governmental control in order keep programs inoffensive to the American public. Is this infringing on the right to freedom of speech? According to the American Library Association, censorship is the change in the access status of material, made by a governing authority or its representatives. Such changes include: exclusion, restriction, removal, or age/grade level change. Censorship has restricted newspapers, television, radio, etc. by not allowing them the right to free speech. Not only has this been thoroughly deliberated in the media, but since technological increases have given rise to the Internet, a new dilemma has evolved: should the Internet be regulated and restricted by government in order to protect today’s children, or does this abridge an individual’s right to free speech? Before attacking Internet censorship, one must understand the limitations of freedom of speech.
Freedom of speech is a right of the citizens of the United States; on the other hand, this freedom is not absolute to the point that society thinks that it is. Some forms of speech are thoroughly outlawed in the US such as fraudulent advertising, child pornography, obscenity, fighting words, help-wanted ads that discriminate on the basis of race, words used in a criminal transaction, unlicensed broadcasts, libel, speech that infringes a copyright, and unauthorized disclosure of data used to make atomic weapons (Turner 28). Naturally, most of these forms of speech have a compelling government interest. Government may regulate, or censor speech if it has a compelling interest, is a public concern, or threatens national safety. In turn, this demonstrates that the ideas and expressions of private institutions cannot be regulated, unless one of the preceding requirements is met. William Turner writes that “Government may not restrict or penalize speech because of its content or its viewpoint. It must remain neutral in the marketplace of ideas” (29). Overall, government may not regulate speech, unless there is a major national, or public concern.
Lately, the Internet, a technological masterpiece, has been the subject of great controversy. Certain individuals feel as though the Internet should be governmentally regulated and censored in order to protect the youth of America. On the other hand, the regulation of material on the Internet would, in fact, violate the First Amendment right to free speech and expression. Thomas Emerson once stated “Those who seek to impose limitation on expression do so ordinarily in order to forestall some anticipated effect of expression in causing or influencing other conduct” (20).
In essence, this means that governmental censorship would primarily attempt to stop an unintentional effect of certain speech or expression on the Internet; in other words, the government would be opposing the idea of individualism in society. When controlling what people read or view, whether in a book or on a computer monitor, the government limits people’s ideas and their thought capacities. Frederick Schauer, a law professor at the College of William and Mary, stated “Freedom of speech meant not only freedom from any form of governmental control, but also freedom from private social pressures that could also inhibit thought and opinion” (113). As citizens of the United States, individuals have the right to be free from governmental control that inhibits thoughts, ideas, and free expression.
Every individual in America has the right to read or view whatever book or magazine they choose. How should this be different from viewing the same type of material on the Internet? In fact, the same battle with censorship has happened with novels. Books such as James Joyce’s Ulysses, J. D. Salinger’s Catcher In the Rye, and The Adventures of Huckleberry Finn have all been subjected to regulations by school “authorities” who know what is best for student morale. The Supreme Court’s reaction to the correlation between books and Internet regulation is “. . . that differences in characteristics of new media justify differences in the First Amendment standards applied to them” (Turner 30). Their reasoning process for this is correct: new problems facilitate new regulations and laws. However, new regulations contradict the Constitution’s amendments, therefore depriving individuals of their right to free speech. One might think that the government does not understand the differences between other media, such as television, and the Internet. The Internet is an interactive experience in which the user selects what he or she will view. Also, the technology of the Internet does not allow people who post information to control who receives it. Overall, the Internet is an extremely different form of media, but that fact should not subject it different censorship laws.
In the past couple of years, there have been two attempts by Congress to limit material on the Internet; both of these ideas came in the form of bills that were designed to “clean up” indecent material on the Internet that was being viewed by minors. Under strict scrutiny, these bills were entitled the Communications Decency Act and the Child Online Protection Act.
The first attack on the Internet came when the Communications Decency Act surfaced in the Supreme Court. The American Civil Liberties Union (ACLU) fought against this bill that stated:
“whoever uses any interactive computer service to display in a manner available to a person under 18years of age, any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs . . . shall be fined under Title 18, or be imprisoned no more than two years, or both.” (Reno v. ACLU)
Obviously, under this bill, the government would decide what is considered as “patently offensive.” What may be offensive to one person, may not be to another. This bill would have severely restricted private Internet organizations had it not been struck down in the court case Reno v. ACLU. Reasoning for the destruction of this bill was that government attempts “to censor cyberspace abridges the freedom of speech protected by the First Amendment” (“Court”).
The most recent Internet censorship proposal was viewed in the Child Online Protection Act. In another court case involving Attorney General Janet Reno and the ACLU, this act stated that “whoever knowingly . . . makes any communication for commercial purposes [by means of the World Wide Web] that is available to any minor and that includes any material that is harmful to minors shall be fined. . ., imprisoned. . . , or both.” (ACLU v. Reno) This act has been proposed and voted on, but a federal judge has blocked enforcement of the bill, which is being deliberated on now (“Peacefire.org”).
Both of these bills are attempting to regulate private Internet organizations’ thoughts, expressions, and ideas. Many feel as though Internet censorship deprives individuals of their freedom to expression, and speech. Frederick Schauer states:
“the separation between the individual and government is central to the Free Speech Principle, and this feature is often lost when . . . we conflate social intolerance and governmental intolerance” (122).
Governmental regulation of thoughts and ideas results in less freedom, therefore condoning less wisdom; these, in turn, result in the absence of individualistic character which is necessary in a democratic society.
Government believes that it knows what is best for society; however, this can also be seen as those who are in power know what is the best method to keep power. Censorship is a possible way for the powerful to terminate individualism, wisdom, and the marketplace of ideas; it not only facilitates less freedom, but also promotes governmental coercion, collectivism, and possibly totalitarianism. Preventing individuals from exploring others’ thoughts and ideas is a way to prevent the expansion of knowledge and power. Franklyn Haiman notes that “. . . coercion that is exercised as a means to prevent the frustration of the common good is worthy of respect and love. . . Restrictions are valid only if they are for the sake of a greater good, a greater liberty . . .” (200).
Censorship is a restriction that is not for greater liberty, but for the deprivation of liberty. The Supreme Court’s solution to this problem is to enforce laws that make it illegal to express one’s opinion, or ideas on the Internet. However, I feel as though there is a more efficient way to control obscene material on the Internet. Through the use of special programs designed to filter obscene Internet material, parents can allow their children to enjoy the Internet without the risk of viewing inappropriate images or ideas. Parental regulation is the only way to allow unregulated Internet use and the expansion of knowledge. Even the Clinton administration stated that “unnecessary regulation could cripple the growth and diversity of the Internet . . . the administration supports industry self-regulation, adoption of competing ratings system and development of easy-to-use technical solutions . . . .” (“White”).
In my opinion, parental regulation is much better than the restriction of civil liberties. With parental regulation in mind, there could possibly be some flaws. The choice of whether or not to censor the Internet is left up to the minor’s parent. In some households, parents may decide not to regulate anything that a child encounters on the computer. Other times, though, parents will avidly approve of censoring everything that they consider obscene or offensive to minors. Also, schools should not use theses filtering programs, but, instead, they should have a parental figure constantly monitor student Internet use. Other than parental negligence, I think these home filtering programs would work to protect minors from viewing information that others feel is inappropriate.
As Americans, we take pride in the fact that we are able to say whatever we want, read whatever we want, and think whatever we want, with few limitations. When those liberties are stolen from us, government has usually enacted a bill or regulation for the “good” of society. For example, censorship is used to “protect our youth”, which in turn, deprives us of our freedom of speech; this is also used to limit individualism and the expansion of ideas. Censorship is a way for government to “protect” society from what the government thinks is inappropriate. Wherever media is present, censorship will be involved. Some government regulation can be productive; then again, depriving individuals of their freedom of speech is not facilitating everyone’s pursuit of life, liberty, and happiness. However, I think that Mieczyslaw Maneli said it best when he stated:
“Wherever there is a loophole in the existing laws protecting traditional American liberties, the opponents of these freedoms try to squeeze in. Whenever legislators create the slightest opening to allow some kind of censorship, the censors will be born and will march again.” (375)
ACLU v. Reno. 31 US 473. 1999.
“Court Leaves It Up to Parents to Decide What Kids See Online.”
The Tampa Tribune 27 June 1997: N11.
Emerson, Thomas. Toward A General Theory of the First Amendment.
New York: Random House, 1966.
Haiman, Franklyn. Freedom of Speech. Skokie: National Textbook
Maneli, Mieczyslaw. Freedom and Tolerance. New York: Octagon Books,
“Peacefire.org At War With Cyber-censors: Site’s Creator Says Teens
Have The Right to Surf Freely.” USA Today 7 Apr 1999: D6.
Reno v. ACLU. 96 US 511. 1997.
Rice, Charles E. Freedom of Association. New York: New York
University Press, 1962.
Schauer, Frederick F. Free Speech: A Philosophical Inquiry
Cambridge: Cambridge University Press, 1982.
Turner, William. “What Part of ‘No Law’ Don’t You Understand?” Wired
Magazine Mar 1996: 24-31.
“White House Opposes Censorship of Internet; But Support of ‘96
Decency Act Is Unchanged.” The Washington Post 17 June 1997: D1.
Copyright 1999, Brian Leatherman.