The First Amendment in the Digital Age

The First Amendment in the Digital Age

Niya. C. Darby

North Carolina Agricultural &Technical State University

 Abstract

The following paper will discuss the First Amendment through the lens of the Digital

Era. Readers will begin with the creation of the Internet and explore supreme court cases that

deal with social media and online news outlets. As American citizens, it is important to relate the

First Amendment to our everyday lives. Today 72% of the population uses some type of social

media. When using these newly forms of mediums are you aware of your rights? Upon reading

you will learn about different cases that have went to the Supreme Court and how they have

applied to cyberspace as we know it now, and you will retain information about the limitations

that have been discovered thus far.

First Amendment

Before its ratification in 1791, the first amendment was defined by three things; no prior

restraint, no licensing, and no punishment after publication. Yet today the first amendment, is as

follows” 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”

(Calvert, Kozlowski, & Silver, 2018) As the world continues to evolve through the advancement

of technology, it’s important that citizens understand the meaning of freedom. Can American

citizens speak freely on the internet? Is the internet a public forum? These are some of the

question that will be explored and answered concerning the first amendment and its limitations in

the digital age.

Three prior supreme court cases; Ginsberg v. New York, F.C.C v. Pacifica Foundation

and Renton V. Playtime theater `helped shaped the 1996 Communications of Decency Act. The

first case ruled that “material that is not obscene may not be harmful to children. In 1973 the

Federal Communications of Commission was forced to punish a radio station for a segment that

included “filthy” language. In the third case it held that localities may impose regulations

prohibiting adult theaters from operating within certain areas. The Communications of Decency

Act was then created and designed to “protect minors from explicit material on the Internet by

criminalizing the knowing transmission of “obscene or indecent” messages to any recipient

under the age of 18. And also, the knowing sending to a person under 18 of anything “that, in

context, depicts or describes, in terms patently offensive as measured by contemporary

community standards, sexual or excretory activities or organs. (Kahn)

Communications of Decency Act

Yet, a year later the American Civil Liberties Union argued that certain clauses were

facially unconstitutional and placed limitations on user’s freedom of speech specifically on the

Internet. In the Janet Reno V. ACLU Supreme court case, attorney general Reno countered the

argument by stating” Prior precedents have upheld the CDA Act.” The American Civil Liberties

Union won the case based on the argument that unlike the other three precedents it was not a

precedent under the CDA Act. In cyberspace a user must go through firewalls or through a

website unique sequence of coding to access explicit material. The case won and marked history

as the first major Supreme Court ruling on the regulation of materials distributed via the Internet.

The Reno V. American Civil Liberties Union case might have been groundbreaking, yet

as the world continued to evolve in the digital age, it placed many limitations on the first

amendment as known today. The supreme court has held that content-based restrictions are

constitutional when “they are narrowly tailored to a compelling government interest.” (Calvert,

Kozlowski, & Silver, 2018). In the next two examples readers will be able to see that this is often

a hard test to prove and see its application in terms of cyberspace.

In 2003, Bretton Barber, a high school junior, wore a T-shirt to school with a photo of

President George W Bush and the words International Terrorist; when one student complained,

Barber was asked to remove the shirt. The case was then reviewed by the Supreme Court and

ruled that it was unconstitutional. Yet in 1996 the supreme court case (Bethel School District

versus Fraser) contradicted the ruling. If a student is able to speak his/her mind freely, why was

Matthew Fraser suspended for making a sexually suggestive nomination speech for a fellow

classmate? The court refused to honor the standard seen in similar cases, instead they stated
Limitations on the First Amendment

“society has an interest in teaching students the boundaries of socially appropriate behavior”. It

also upheld that schools can punish students who use “offensively lewd and indecent speech”

that is “unrelated to any political viewpoint. (Calvert, Kozlowski, & Silver, 2018) Given the two

examples, it is very hard to pass the “government interest test” Ultimately cases aren’t always the

same, some are very unique and it can be harder to decipher the differences.

Within the umbrella of content, readers should consider a case of cyberbullying on the

internet. Is it legal to say threating things through social media? And can one prove that it

violates the CDA Act?

In the Supreme Court Case Chaplinsky versus New Hampshire in 1942 a man named

Chaplinsky (who was a member of the Jehovah witness religious sect) was distributing

pamphlets when a city marshal intervened. Chaplinsky then called the marshal a “damned

fascist”. He was then tried and convicted of violating a state law that forbids offensive or

derisive speech or name-calling in public. (Skelton, "Chaplinsky v. New Hampshire, 315 U.S.

568 (1942)”) This case then formed what is now known as the fighting words doctrine.

According to the act fighting words are” those which by their very utterance inflict injury or tend

to incite and immediate breach of the peace. It also notes that fighting words may be prohibited if

there is a face-to-face encounter or if the encounter could result in an immediate breach of the

peace.

In relation to the internet this doctrine allows users to participate in harmful or obscene

language. The doctrine states that punishment is only upheld if the encounter is a face-to-face.
Limitations on the First Amendment

More often than not, users will exchange harsh words and statements over social media

websites and then the next day the information will get lost or forgotten in cyberspace.

A greater extreme of fighting words is considered under what many users categorize as a

threat. In the Supreme Court case; Jake Baker v. The University of Michigan, Baker created a

series of graphic rape-murder short stories. (Osen, 2000) An article written by Janet Osen on the

case explains” he was merely a blip on the cyber horizon” until January 9th. On that day Baker

posted another story, only this time it included one of his fellow classmates. The University

argued the series was not only provoking to other students but it contained obscene material and

language. It was then ruled that in order to qualify as a threat, the statement must contain some

language construable as a serious expression of an intent imminently to carry out some injurious

act.” (Hodges & Worona)

Besides content, the government can also attempt censorship based on the time, place and

manner. The four guidelines for time, place, and manner restrictions state that the rules must be

content neutral not constitute a ban on communication, be justified by a substantial state interest,

and be narrowly tailored. Furthermore, the court have identified traditional, designated, private

property, and prison’s forums. Traditional Forums are places devoted to public speeches, such

as street corners and plazas. The highest level of First Amendment protection is given to

expression occurring in traditional public forums (Calvert, Kozlowski, & Silver, 2018)

Designated Public Forum are places created by the government such as city auditoriums.

Prison’s and military bases make their own exceptions. These places are privately owned yet

functioned. So, we must consider the following: Is cyberspace considered a public forum?
Time, Place and Manner

The United States District Court for the Western District of Oklahoma addressed this

issue in Loving v. Boren (1997) (Hodges & Worona) The plaintiff in this case was a professor at

the University of Oklahoma who argued that the defendant (the president of the university)

violated students first amendment rights by blocking news group sites on school computers. The

plaintiff then wished to have full access to any website of his choosing but was denied by the

court. When denying the plaintiff of an injunction, the court discovered that Loving did not

produce any evidence that he suffered any harm. Moreover, the court made the final decision to

deny the plaintiffs motion as a violation to his first amendment rights. Instead the courts ruled

that the university computer and internet services were not a public forum because they were not

open to the general public or used for publication. ("Case: Loving v. Boren")

To reiterate our previous question, the internet can fall under a few different categories

depending on the particular case. Technically, the University of Oklahoma has a right to ban

certain context since the computers are in place for academic and research use.

To conclude readers are able to see first hand how courts navigate through precedents and

doctrines when involving the use of the internet. A study conducted by the Knight Foundation

found that 90% of students believe people should be allowed to express their unpopular opinions.

Furthermore, out of that 90 percent, 62 percent of students used social media.

As it is a fairly new medium, many things are accepted under the first amendment but it

doesn’t always make them ethical and moral. As technology continues to innovate citizens must

also allow legalities and proper procedures to be modified accordingly. For now, it's important to

understand how the First Amendment operates in the real world and how the courts have applied
The First amendment in the Digital Age

it to cyberspace so far, and to track future developments in case law and legislation. (Hodges &

Worona)

The Supreme court also upholds the responsibility to stay by their laws so it seems fit to

honor a person’s speech despite your personal perspective. The right to speak freely in America

is a generous privilege due to the fact that countries such as Germany, and France are not entitled

to this right.
 References

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