Freedom of Speech on the Internet - Research Paper Example

Freedom of Speech on the Internet Introduction The First Amendment to the Constitution is the most recognized and recited of the Bill of Rights within both political and social realms because it is the most essential in preserving the uniquely American freedom the Founding Fathers envisioned. The First Amendment effectively guarantees free speech, freedom of the press and religion. The constitutional right to free speech gives us the freedom to think and express those thoughts without governmental reproach. Without the free speech, America would be a much different place. This fundamental freedom must be continually fought for in every medium and circumstance if the nation is to remain the shining beacon of liberty for the world. The constant battle for the preservation of free speech has most recently been enjoined concerning the unabated flow of information on the internet. The Federal Communication Commission (FCC) ruled that radio and television was exempt from First Amendment protection therefore must comply with arbitrary content guidelines. Though clearly a legal matter, the FCC gave itself the power to censor the media without virtue of a court decision. Now that censorship has been accepted by the majority, the government is currently attempting to control the internet. The American public seems to be in favor of restricting online gambling as well as material of a sexual nature but this is a generation that has grown accustomed to censorship by their government and in many cases encourages this unconstitutional practice. The Internet, today's battleground for free speech The internet itself is not regulated. As efficient and enormously informative as the web is, its content is not overseen as are other communications mediums such as television and radio. It is a groundbreaking new technology that has amalgamated societies of the country and the world and introduced the concept of truly free expression and the perception that nothing is taboo. Everything is exposed and available at everyone's literal finger-tip. The Internet has no physical, ethical or moral boundaries. Lawmakers and legal scholars generally use legal precedents from broadcast media decisions as the model for definitions of indecency and obscenity when developing regulations governing the Internet. Governmental censorship rational The Communications Decency Act (CDA) of 1996 made it a federal crime to display 'indecent material' on any computer network unless the website owner utilizes 'effective' techniques to control access of that material to minors. This law appears to be a reasonable compromise that protects free speech and prevents children from accessing objectionable material, but in practice and effect, outlaws free speech from the Internet. The Internet allows everyone the freedom to connect with other people and suppliers worldwide but an economical means for individuals to restrict their art or thoughts to the eyes of children is yet to be developed. Because of this lack of security technology, across the board prohibition is justified under the law, a concept that is in itself considered unlawful by a strict definition of the First Amendment of the Constitution which unambiguously guarantees the right to free speech (Pilon, 1994). Supreme Court decisions have consistently found that the First Amendment does not apply to obscene communications and have allowed communities to establish their own restrictions regarding what is obscene. The court in Miller v. California explained that if the 'average' person would describe the work as obscene or if it showed or expressed patently offensive sexual conduct without 'serious literary, artistic, political, or scientific value,' the material is correctly defined as obscene (Mason, 2000). Censoring the Internet is impractical The community of the World Wide Web has combined to establish what is and what is not acceptable. Neither a single government alone nor the coalition of all can hope to effectively restrict such a universally encompassing phenomenon such as the Internet. In addition, the associations and comparisons made of the Internet to the broadcast media when formulating laws is flawed as is the perceived right to restrict its content. Before cable and satellite television brought effective child protection techniques within a click or two for parents, children could access the network television stations at will and censorship was widely accepted as a necessary governmental responsibility. However, Internet access is not as universally accessible in the same way radio airwaves are. A person does not accidentally look up a Web site the way they might accidentally hear something on network television or radio. Censoring the Internet is illegal No law regarding internet indecency passes constitutional inspection no matter how vigilantly crafted or well intended. "The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well-meaning but without understanding." Supreme Court Justice Louis Brandeis ("Olmstead", 1928). The term indecent is vague, confusing and destined for continual debate and evolution. Local judiciaries that try to define it and build moral parameters excluding what is currently perceived indecent from a source based on a worldwide scale is impossible and unwarranted. The biggest casualty to free speech is the individual citizen's right to make morality decisions and be able to speak freely to others in all regions of the globe. The CDA cannot legitimately allege any jurisdiction over the Internet as it might the broadcast media because software has enabled controlled access to minors. Most Internet service providers offer inexpensive or free access to child protection filters. Lawmakers must write new laws to circumvent the old ones Just as the government was publicizing the possibilities of the information superhighway, it was also moving to censor it. The Internet, at least for a short time, had provided many peoples of the world, including the U.S., genuine freedom of speech. About the time the internet became widely popular, the U.S. Senate voted for an amendment to the Telecommunications Act of 1996 (Weingarten, 1996) which would have made it unlawful to produce indecent material on any computer network (Corn-Revere, 1997). The House offered its own amendment encouraging private solutions to the problem of indecency in an effort to counteract the censorship attempts approved by the Senate. A compromise that restricted speech considered 'harmful to minors' was worked out between the houses of congress. Under the bill, "sexual imagery on private computer networks would be governed by a standard like that usually used for public display of print media. House conferees, however, again with little discussion, substituted broader language regulating 'indecent' material" (Weingarten, 1996, p. 68). This language was enacted into law along with the Telecommunications Act of 1996 and became integrated into the CDA. Free speech is not just a quaint idea Communicating via the computer allows everyone to create any type of subject matter and to distribute it instantly on a global scale. This remarkable progression in the 'marketplace of ideas' is a result of the ease of access to the author. Laws that increase regulations and its associated costs to the common webmaster jeopardize this developing modernization and globalization of public dialogue. The CDA will add to the cost of internet speech which, in effect, prohibits the freedom of speech. Government cannot legitimize exercising control over internet content which its users are able to control. Who's to judge what the public should not hear' The FCC has yet to shape a rational and consistent standard defining broadcast indecency. According to the FCC's broad definition, indecency in the broadcast media is ascertained according to the discernment of the 'average broadcast viewer' but this is a meaningless concept. The tastes of the average viewer in Nebraska hardly correlate to the tastes of the average viewer in Las Vegas. In other words, the FCC determines what is indecent. The crafters of the CDA were influenced by legal precedence regarding FCC broadcast interpretations to craft its indecency standard. "It is possible for any court to string together words in an important sounding way, crafting phrases such as 'prurient interest,' or a mythical national consensus, and claim to have created a uniform definition of indecency. What it will have done, in effect, is to impose its tastes on the rest of the nation." (Huber et al, 1996, p. 385). The CDA's version is no clearer than the FCC's definition of indecency and applies similar reasoning to a different set of circumstances. The Internet, as discussed, is not the same form of communication as the broadcast media. No court - whether federal, state or local - can clarify or fully rationalize this Act that suppresses the freedom of speech on the internet by referring to a theoretical 'average' computer user. Conclusion If the First Amendment protected only speech that was acceptable to the 'average' person, it would be rendered useless as it would provide no protection to unpopular minority opinion which is clearly not as the founders of the country intended. The Internet is a much different form of communication than broadcast media outlets as it enables an exceptional range of people from varied communities to voice their opinions and share their knowledge. The indecency judgments of the 'average' user are not simply difficult to distinguish, but should be of no significance. If FCC regulations meant to address the definition of indecency regarding the broadcast media to determine the future of internet communications, the damage to the truly free speech it has fostered will be severe. To censure or prohibit free speech on the Internet is a violation of law, the highest law, the Constitution of the United States. Outline: I. Introduction II. The Internet, today's battleground for free speech III. Governmental censorship rational A. Censoring the Internet is impractical B. Censoring the Internet is illegal C. Lawmakers must write new laws to circumvent the old ones IV. Free speech is not just a quaint idea A. Who's to judge what the public should not hear' V. Conclusion Works Cited Corn-Revere, Robert. "New Age Comstockery: Exon vs. the Internet." Cato Institute Policy Analysis No. 232. (June 28, 1995). Corn-Revere discusses the Communications Decency Act of 1995, a law intended to protect minors from indecent material posted on the internet. Additionally, the Act imposed punishments for those who transmitted such material to a minor. The Act essentially extended the same restrictions for radio and television to the internet. Huber, Peter W.; Kellogg, Michael K.; & Thorne, John. "Joint Explanatory Statement of the Committee of Conference." Special Report: The Telecommunications Act of 1996. Boston: Little, Brown & Co. (1996). p. 385. Huber, et al, examines the regulatory and deregulatory proposition found within the Telecommunications Act of 1996. The Act intention was to provide every citizen with the same access to communication mediums therefore the same restrictions on programming as well as the same content available to all. One argument is that the people of Kansas may not want the same programming as people in New York City. Pilon, Roger. "A Modest Proposal on 'Must-Carry', the 1992 Cable Act, and Regulation Generally: Go Back to Basics." Hastings Communications and Entertainment Law. (1994). Journal 41. Pilon discusses the 1992 Cable Act, a cable television regulation case that, when challenged, caused a split vote among judges hearing the case in local then federal and ultimately the Supreme Court, i.e. 2-1, 5-4. This illustrates how divided the nation was and still is with regard to free speech and the regulation of communications. Mason, Jeffrey D. "Mason Miller v. California (1973): The Court Confronts Obscenity." The Millennium Fool. (November 27, 2000). July 26, 2009 Read More