Role of the First Amendment in Freedom of Speech and Social Media

3444 words (14 pages) Essay in Human Rights

14/02/19 Human Rights Reference this

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Freedom Speech in The Age of Social Media

Summary:

This paper discusses the First Amendment and its role and relevance in the Internet and Social Media. It touches base on violation of First Amendment Rights through censorship, and libel cases that were not protected by the First Amendment on Social Media.

The First Amendment of the Constitution can be found in the First section, which is called the Bill of Rights, which are known to be the most significant part of the US Constitution. The First Amendment entitles US citizens the vital freedoms of speech, religion and expression. Not all countries give these rights to their citizens and this is why US citizens are so fortunate because they have the freedom to express themselves and to stand up for what they believe in or what they don’t. The Founding Fathers ‘Framers’ of the US Constitution had a vision for the United States and for its citizens to have these vital freedoms, the problem is that these amendments were written centuries ago, and with time and new technologies come many changes and the interpretation of these rights has changes because of these technologies, especially now in the age of Social Media.

Most of modern interaction and conversation is now done on Social Media platforms with the help of the Internet and a problem with this is that there are very few laws that regulate what happens online. Thanks to the internet and the new technologies, most people have access to social media platforms, therefore people have access to information and opinions in the palm of their hands. The internet has proven that speech is easy on these Social Media Platforms, because most people can access the internet and basically write or speak their minds through videos or blogs. An amazing example of this can be sites like Yelp, where people are able to give restaurants and hotels ratings and they can say whatever they want and it is not considered libel. Many people take it online to rant about things that happen to them, other like to speak their mind, but recently many Social Media platforms have been banning certain words that might be offensive to others and deleting this that might affect others, this is a violation of freedom a speech. Pages such as Facebook will not let you type in certain words that other’s might find offensive, or they will directly delete a comment or photograph that is inappropriate or that might hurt somebody else. Although these censorships help save people’s lives from cyberbullying or prevent people from using strong words, it is censorship nonetheless.

Social Media and the Internet has altered the way that people communicate and as new technologies emerge people have to learn to adapt to them. Thanks to the usage of chat forms, instant messaging, picture & video sharing, social networking, blogs, image collecting boards among many other things, people are adapting more than ever. Throughout out the last 20 years, the Internet has quickly expanded and matured as new technologies are being developed. With the invention of social media platforms, the way that people network and communicate has completely changed, even the way that they read and consumer the news. Social media platforms have given individuals a freedom that they never thought was possible, they feel free to access whatever they want and to express however they want to express themselves, they even have the protection of speaking and posting anomalously, and many people hide behind their computers. 

The majority of US citizens take the privilege of living in the United States, and what that the country allows them for granted. They have the privilege to go online and rant about their jobs and horrible bosses, give opinions about political candidates, and read what other people have to say about things. The reality is that the Internet allows people to express themselves, whether it is on a blog, social media platforms, or even their work email and people are constantly expressing themselves freely. This is a privilege that people in other countries do not necessarily have, countries like China, where it is prohibited to access any type of social media platform (Ferguson), or where speaking their minds could land them in jail.

Although the Internet is moderately new, it has long become a part of people’s daily lives, especially those people living in the United States. The Internet has alleviated all the communication tensions people had, since it allows people to communication easily with one another and also mass communication like articles, videos, and blogs. One of the reason why the internet has become such a powerful communication tools is because it integrates several types of communication like Articles, podcasts, broadcasts, videos, letter communication among many other things (Ferguson).  Now a day most places have Wi-Fi and internet has become such an inexpensive thing to access, people can even connect to the internet in airplanes and during bus rides, mainly because “the Internet has the potential to be a tremendous force for development by providing quick and inexpensive information” (Sorensen). One problem with the Internet is that it has no country boundaries so measuring and enforcing US laws is very hard to do, since the US cannot control what other countries do or say, consequently the Internet cannot be virtually controlled by one country. What many countries do to have control over the internet is implementing thing such as filters on a server, which in the end limit people’s freedom of expression and is nonetheless censorship. Because the Internet is really a mass medium, because it can reach virtually anybody, it possesses a big threat to many governments, because anybody with internet can communicate to the mass audience.

Censorship of information is in direct violation of the first amendment because it takes away people’s right to express themselves freely. There are many types of censorship over the internet, sometimes people do not even realize that content is being censored when infact it is.

Many governments believe that censorship helps avoid unsafe or threatening information from spreading and that it keeps children safe from retrieving inappropriate content.  Some of these materials can be for example web-sites that promote eating disorders such as anorexia, or websites that tell people how to commit suicides or how to build home-made bombs and such things. Although many of these things are extremely controversial and may be offensive to some, in the end they are violating First Amendment, and these sites should be shielded by the freedom of speech. Some of the reasons why filter on servers are imposed make a lot a sense when it is for protection of minors, since most children know how to use a computer more than most adults, but when adult’s information is being filtered this is denying people a right they are entitled to.

The United States has unsuccessfully made efforts at censoring offensive and/or inappropriate information and content on the internet. Firstly, was the Communication Decency Act (CDA), this act forbid people from using material online that was offensive to minors (Sorensen). The CDA directly violated the First Amendment and this why the Supreme Court overruled the act.  Their second attempt was the Child Pornography Prevention Act (CPPA) which stated the pornography, whether a video or an image on the internet of a child/minor acting in an explicit or sexual behavior. Again, the CPPA was also directly violating the First Amendment, and it was overruled by the Supreme Court. Then came the Child Online Protection Act (COPA), which is theoretically obligates Web-Site owners and publishers to guarantee that minors will not access material and content that is harmful to them on their designated websites (Sorensen). Copa was also in violation of First Amendment rights, therefore overruled.  As of today, there are no Internet Censorship Laws in the US in action, but nevertheless censorships still happen.

Just as there are people who think censoring the internet is the correct thing to do, many people oppose it because they are firm believers of the vitality of First Amendment rights of free speech and expression. It is the first amendment that permits people to openly and freely discuss ideas and thoughts to other people and to society itself. It is unethical and unconstitutional for the government to take this vital right away from people, as they should feel free to express themselves in any way that they please.

Along with the Internet come new ways of communication such a Social Media Platforms, which have rapidly landed in the hands of millions world-wide, these new evolutions in technology drastically change the definition of free speech, for example before nobody would knock on anybody’s door to tell them their opinions, now it is on all of people’s devices from their smart phones to their computers. People are being constantly hit by others opinions and beliefs, for example that person who always share their political affiliation and beliefs on their Facebook status, it is starting to become unavoidable.

One of the first cases regarding freedom of speech was in July of 1995, Stratton Oakmont vs. Prodigy. Prodigy was a type of social media platform that had a board with a chat forum, one of the users left a chat/comment saying that the CEO of Stratton Oakmont committed fraudulent acts. As a result, Stratton Oakmont sued Prodigy for online libel, the case was ruled in favor of Prodigy since it was protected by the First Amendment and the comment was left by an anonymous internet user not Prodigy itself. These things are very hard to control, because for example that anonymous person who commented might be in another country and therefore they do not fall under US jurisdiction, this is why it is so hard to control the internet as a whole.

After some of these chat forums began to pop up across the web, this was the birth of social media platforms. Rapidly many websites started to launch and their focus was the public, they wanted individuals to have their profiles and for them to express themselves and engage in communication with other members. Facebook and Twitter have been the long lasting two as they both have been around for over a decade (Somerson), and they revolve around people who express themselves freely. Four months after the launch of Facebook, the company integrated a new feature in their social media platform and this was called a ‘status’. Facebook was asking its users ‘what was on their mind’ and allowed people to speak their minds in a maximum of 356 characters, which is now unlimited on Facebook. Twitter quickly incorporated the same feature and allowed its users to speak their minds in 140 characters, which will probably soon increase. Many people engage in ranting on social media, and once something goes up on the internet it is there forever, even if deleted, with ranting many people can take it as defamation or libel, but in the end, it is people exercising their free speech.

In 2009, there was a town re-election for Sheriff BJ Roberts in Hampton, Virginia and six deputies were not reinstated after it. These deputies stated that they were wrongfully terminated because they supported Jim Adams that was Sheriffs Roberts’ rival.  They had stated that they had shown support for Jim Adams by ‘liking’ his Facebook campaign and sharing his page on their profiles. As a result, Sheriff Roberts threatened the deputies and consequently did not reinstate them. Consequently, the deputies filed a lawsuit against Roberts, claiming that they were wrongfully terminated because of their behavior on social media. In an appeals court, it was agreed that the deputies should have been terminated because they should not partake on law-enforcement politics and siding with candidates and this is violation of First Amendment rights. When this case was taken to the Fourth Circuit, it was recognized that Sheriff Roberts was entitled immunity and that he had the right to not reinstate them (Vogel). The First Amendment does not protect all speech and expression and this was a perfect example were people were not protected by their First Amendment Rights.

Another famous case that was not protected under the first amendment is Elonis vs. Unites States. In 2010 Anthony Elonis was abandoned by his wife and he quickly took the matter to Facebook and started ranting through rap lyrics, most of these sounded like threats, with everything he posted he gave a disclaimer saying that they were just lyrics and nothing real (Liptak). Elonis rapped about things like having his ex’s head paraded like Marie Antoinette, among other horrible things. Ms. Elonis was afraid of all of his commentaries and lyrics and quickly took information to authorities. This was an extremely difficult case because Elonis argued that they were just lyrics and nothing more, that it was just a form of art and expression and that he did not intent to do anything that he rapped about. The Supreme Court stated that the First Amendment did not protect all speech and did not protect threats whether real or not, they were still treats (Liptak).  Elonis was found guilty of violating the Anti-Threat stature and was convicted for 44 months in prison and three years of supervised release (Liptak).

Many of these chat forums online like Twitter and Facebook are allowing people virtually everywhere to speak their minds and for them to express themselves in ways that they see fit. The problem is that many people are not aware of all of the consequences that their online ranting can have on their lives. Most people follow their favorite celebrities and athletes on Social Media, since this is how the engage with their fans, even President Trump engages in Social Media by his infamous ‘tweets’ on Twitter. Many brands and companies take advantage of the presence that celebrities have on social media platforms and they begin to endorse them so that the public sees them wearing their products or talking about their brands on the ‘tweets’ or ‘status’. In 2010 Rashard Mendenhall an NFL player of the Pittsburgh Steelers who was endorsed by brands like Champion made a series of tweets after Osama Bin Ladin’s death that tarnished his online presence and reputation. Mendenhall tweeted that “what kind of person celebrates death? It’s amazing how people can HATE a man they have never even heard speak. We’ve only heard one side…(Mendenhall). He then continued by saying “we’ll never know what really happened. I just have a hard time believing a plane could take a skyscraper down demolition style”. Mendenhall was consequently dropped as a Champion Celebrity and he lost his endorsement deal, Mendenhall quickly deleted his tweets and said that he was just expressing his thoughts and that they were just mere opinions. Although he was protected by First Amendment and he was in all of his right to share his opinions and many conspiracy theorist do, he lost many fans in the process.

Lawsuits that come from social media are most commonly those of claims of libel or defamation. Libel is a written or published untruthful statement that directly hurts the individual’s reputation (MacHenry). Because many people have dedicated themselves to ranting on social media, there are typically libel. In 2015, came another quite interesting libel case in social media, known as Desert Palm Surgical Group v. Petta. Sherry Petta underwent cosmetic surgery, a rhinoplasty to be exact at the Desert Palm Surgical Group. To give Petta a little background she was a big fan of cosmetic procedures and surgeries and had underwent several in the past. After her rhinoplasty Petta claimed that she was not healing properly and that the nose did not look as the doctors told her it would, she then took all of this ranting online on Myspace and created a website just to rant about her experience. On her site and her social media page Petta ranted that “the surgeons intentionally shortened and curved her nose upward against her wishes” (MacHenry) and she uploaded images of her rhinoplasty. Consequently, Desert Palm Surgical Group started to lose a lot of business and sued Petta for libel and defamation along with 11 million dollars in damages caused by her pages. Petta pleaded that she was protected by the First Amendment right and that she was only speaking the truth about her experience with her surgery. The only thing that could have saved her from this defamation case was if what she said had been true, and it wasn’t most of the complications she had was because she did not take care of herself after her surgery and most things she had underwent in the past cosmetic surgeries and procedures. Petta was not protected under the First Amendment and consequently had to take down all of her post and her website and had to pay 12 million to the Desert Palm Surgical Group for all of the damages (MacHenry).

Many of these libel cases that involve the use of social media as the source are repeatedly occurring and becoming extremely common and popular. The problem is that freedom of speech is not protected if there is a false statement involved, and it is no longer an opinion or a type of expression, it is a lie. Opinion in the end is not fully protected by First Amendment rights if there is a false or an untruthful statement involved, because it can have adverse effects on an individual’s image and reputation and it can even cost somebody money. Social media is a type of mass communications and people can easily reach mases of people, therefore when they decide to rant or to post their opinions there may be consequences since they have such a big audience. Many companies know that it is very hard to regulate was is being posted online, many companies are even going as far as creating departments to monitor their online presence (Liptak), the intent of this is for these departments to take care of things like that before they get out of hand. Many of these cases should be more known to the public, this way they can prevent something like this happening to them, being media literate and educated about how social media works and the laws of the country can prevent them from falling into trouble.

In conclusion, new technologies such as the Internet and Social Media has integrated into individual’s daily lives. People cannot live a day without checking their social media platforms or reading the news online, people are communicating now more than ever, and many people have become reliant on it because it is so accessible. The problem is that Social Media and the Internet are still undiscovered territory when it comes to developing laws to regulate content, and a new definition for the First Amendment in regards to these new technologies should be made. The First Amendment is a grey area, because there is no right answer when it comes to how to define it, but it is very important to protect speech.

Sources

Chander, A., & Lê, U.,P. (2015). Free speech. Iowa Law Review, 100(2), 501-549. 

Hardenbrook, J. A. (2013). First amendment rights: An encyclopedia: V.1: Traditional issues on the first amendment; v.2: Contemporary challenges to the first amendment. Choice, 50(9), 1606-1606,1608.

Holden, J. (2017). Steelers react to Mendenhall’s bin Laden tweets. ESPN.com. 

Liptak, A. (2017). On the Next Docket: How the First Amendment Applies to Social Media. Nytimes.com. 

MacHenry, K. (2015). The Top 10 Arizona verdicts. Docplayer.net

McChesney, R. W. (1998). The new theology of the first amendment: Class privilege over democracy. Monthly Review, 49(10), 17-34.

Sorensen, K. (1996), Human Rights Watch, “Silencing the Net: The Threat to Freedom of Expression On-Line,”. Electronic Privacy Information Center

Vogel, P. (2017). Using Facebook “like” is Free Speech | Internet, Information Technology & e-Discovery Blog. Internet, Information Technology & e-Discovery Blog.

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