Chapter 5: Freedom of Expression Study Notes

Chapter 5: Freedom of Expression

Key Quotes

Noam Chomsky: "If we don’t believe in freedom of expression for people we despise, we don’t believe in it at all."

Internet Censorship and Surveillance

Global Concerns

Around the world, there are rising issues concerning internet censorship and surveillance, which heighten worries around freedom of expression, privacy rights, free and fair elections, and corruption. Countries where political dissent and human rights activists face significant censorship include:

  • Brazil

  • China

  • Ethiopia

  • Greece

  • India

  • Indonesia

  • Iran

  • Russia

  • Saudi Arabia

  • Turkey

  • Uganda

  • Zimbabwe

Journalists and their sources frequently face censorship and surveillance from politicians, government representatives, and criminals. This necessitates that activists, journalists, and whistle-blowers increasingly conceal their internet activities to protect themselves.

Edward Snowden and the Need for Privacy

The urgency for privacy was amplified by the revelation of extensive surveillance practices by the U.S. government, specifically after Edward Snowden leaked documents in 2013 related to the National Security Agency (NSA).

Tools for Online Privacy: Tor

To counter internet surveillance, tools like Tor have emerged. Tor is described as:

  • A free software and open network designed to safeguard users from surveillance, addressing concerns about personal freedom, privacy, and state security.

  • Tor achieves this by routing internet traffic through a myriad of servers globally, obscuring the user’s activity from both the sites visited and from monitoring agencies.

Despite its numerous uses for privacy and freedom, a study found that 57% of websites accessed via Tor were linked to criminal activities, including drug trafficking and illicit finances. This raises ethical questions:

  • Can technology effectively protect freedom of expression without also aiding wrongdoers?

Learning Objectives

As you study this chapter, reflect on these guiding questions:

  1. What is the legal foundation for protecting freedom of expression in the United States, and what types of expressions lack this protection?

  2. Identify key federal laws impacting online freedom of expression and their implications for organizations.

  3. Discuss major issues pertaining to freedom of expression within the context of information technology.

First Amendment Rights

Internet as a Communication Medium

The internet serves as a vast platform for exchanging diverse information—news, ideas, and opinions. It is characterized by accessibility and the capacity to communicate with large audiences economically.

Ethical Usage of Freedom

With such immense freedom comes the responsibility to adhere to ethical guidelines that balance personal expression and organizational interests. Organizations often prioritize limiting the non-business use of information technology (IT) to maintain productivity, legal liability, and resource efficiency.

The First Amendment

The right to freedom of expression is enshrined in the First Amendment of the U.S. Constitution, which states:
"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."

This First Amendment ensures rights encompassing:

  • Freedom of Religion

  • Freedom of Expression

  • Freedom to Assemble Peacefully

Over time, various federal and state laws have been adjudicated as unconstitutional for infringing upon these rights.

Court Interpretations and Exceptions

The Supreme Court has expanded the definition of "speech" to include non-verbal and symbolic actions, such as flag desecration and specific forms of artistic expression. However, certain speech types are not protected, including:

  • Perjury

  • Fraud

  • Defamation

  • Obscene Speech

  • Incitement to Panic

  • Incitement to Crime

  • Fighting Words

  • Sedition

Obscene Speech

The landmark case for defining obscenity is Miller v. California (1973), which established a three-prong test:

  1. Would the average person, applying contemporary community standards, find that the work, when taken as a whole, appeals to the prurient interest?

  2. Is the work patently offensive as per the law?

  3. Does the work lack serious literary, artistic, political, or scientific value?

Questions about how community standards should be determined are complex and often contentious, especially with global access via the internet.

Defamation

Defamation refers to false statements made that harm an individual’s reputation, potentially affecting their earnings or professional standing. It comes in two forms:

  • Slander: spoken defamatory statements

  • Libel: written defamatory statements

Truth serves as an absolute defense against defamation claims. Businesses and individuals need to be cautious in their communications, especially on online platforms.

Critical Thinking Exercise: Analyzing Reviews

Scenario: A friend proposes posting a negative review about a restaurant, claiming to have experienced food poisoning. Assess the potential ramifications, considering defamation risks.

Freedom of Expression: Critical Issues

Overview

The advent of information technology introduces new avenues for communication alongside responsibilities that encompass:

  • Control of information access online

  • Internet censorship strategies

  • SLAPP (Strategic Lawsuit Against Public Participation)

  • Anonymity and John Doe lawsuits

  • Hate speech, pornography on the internet, and fake news dissemination strategies

Controlling Access to Information

While the necessity of freedom of speech is generally acknowledged, the ease with which minors can access harmful materials complicates the issue. Laws and software designed for child protection also tend to limit adult access. Key legislative attempts include:

Communications Decency Act (CDA)

  • Passed in 1996, seeking to limit children's exposure to inappropriate materials. The CDA was partly deemed unconstitutional by the Supreme Court in 1997 due to its overly broad language, thus securing the internet with First Amendment protections similar to print media.

Child Online Protection Act (COPA)

  • Enacted in 1998, to protect minors from harmful materials, though deemed unconstitutional by the Supreme Court in 2004 because of its vague language leading to potential overreach on adult content access.

Internet Filtering and Software Limits

Filters can block websites based on URLs, keywords, or dynamic content. While these tools can prevent exposure to harmful material, they can impose significant restrictions on educational and informative content.

Children’s Internet Protection Act (CIPA)

  • Passed in 2000, CIPA mandates that federally funded schools and libraries use filters to block access to obscene material and requires monitoring of minors’ online activities, but its implementation has been challenged.

Digital Millennium Copyright Act (DMCA)

  • Addresses copyright issues, specifically regarding the liability of ISPs when infringing material is posted by users. ISP immunity is contingent on timely response to takedown requests from copyright holders.

Internet Censorship Overview

Internet censorship involves suppressing or controlling information accessibility on the internet, where intermediaries may succumb to pressure from government bodies or ISPs to regulate content. Notably, countries like China exhibit rigorous censorship measures.

Country-Specific Censorship Cases

  • China leads globally in internet censorship through measures like the Great Firewall.

  • Brazil has notably active lawsuits demanding content removal.

  • Cuba engages in censoring access even among limited users; currently, only a small percentage have home access.

Strategic Lawsuits Against Public Participation (SLAPP)

SLAPPs are legal tools used by corporations and authorities to intimidate public dissent through meritless lawsuits, instilling fear among critics. Anti-SLAPP laws help counteract these lawsuits across various jurisdictions.

Anonymity in Online Expression

Anonymity allows users to communicate without revealing their identity, vital for political dissent and social movements but often exploited for unethical actions.

John Doe Lawsuits

Utilized by businesses to unmask anonymous individuals who harm their reputation through online expressions. Courts have set precedents requiring proper justification before unmasking such identities.

Hate Speech and Legal Protections

Hate speech typically enjoys some legal protection under the First Amendment unless it incites specific threats or is maliciously harassing.

Conclusion

Various laws impact free speech online, balancing the need for expression against the requirement for public safety. Internet users and businesses alike navigate these legal landscapes, often making decisions that tread the fine line between freedom and obligation.