Current Free Speech Doctrine

– Will It Work On The Essay, Research Paper

Current Free Speech Doctrine: Will It Work on the Internet.The Internet offers a much greater potential for interactive communication between informationsenders and receivers than the more traditional methods of communication such as newspaper, radio andtelevision. Freedom of speech ascertained by the constitution is not an absolute right. Depending on themedium through which information is delivered various degrees of the freedom to express one’s self isprotected. Internet communication may be analogous to either a specific existing communication medium oreven several. Current free speech protection begins to dissipate as it is applied to the uncertainconfines of the newly developed Cyberspace. The traditionalist approach to free speech protection iscentered on core values and yields results that are basically neutral so that content allowed through onecommunication medium is permissible in all media. Freedom of speech and of the press is a basic tenant of United States constitutional law. Perhapsconcern for the English use of prior restraint (licensing of press) and seditious libel was the reasonfor including the first amendment in our bill of rights. When the first amendment became law the printedpage was the most widely used non-verbal medium of speech. Speech, as we understand it, involves morethan verbal communication. Speecht includes pictures, movies, radio, television and expressive conduct[Shelton v. Tucker, 364 US 479 (1960)]. As technology advanced and additional communication mediumdeveloped, speech was given various levels of first amendment protection depending on the medium throughwhich the information was delivered. Cyberspace is a network of computer systems permitting literally millions of people tocommunicate with one another on an hourly basis. Cyberspace may mirror other types of communicationmedium singularly or several at one time. Current free speech protectionapproaches break down when applied to Cyberspace since one may prohibit speech when delivered by onemedium but permit identical speech delivered via a different medium. A core values approach protectsidentical speech regardless of the medium in which it is delivered. So it is a foundation forCyberspace and promotes development of new technology. That, “Congress shall make no law…, or abridging the freedom of speech”, suggests an absoluteright to speak. Justice Black dissenting in Konigsberg felt that freedom of speech was absolute[Konigsberg v. State Bar of California, 366 US 36 (1961)]. Justice Harlan writing for the majorityrejected an absolute right, noting that protected freedom of speech was less than an unlimited license totalk. When examining a restriction on speech the court will look for a compelling government interest towarrant the restraint on speech. Also the court will look to determine if the regulation accomplishesthe governmental objective in the least restrictive way. Some forms of speech are not protected by the first amendment. Fighting words, intended andlikely to provoke a physical response breaching the peace may be prohibited [Chaplinsky v. New Hampshire,315 US 568 (1942)]. Criminal statutes may punish speech advocating unlawful conduct. Under theBrandenburg test the state must prove that: 1) the speaker subjectively intended to incite unlawfulactions, 2) that in their context the words spoken were likely to produce imminent lawless action, and 3)that the words used objectively encouraged incitement [Brandenburg v. Ohio, 395 US 444 (1969)]. Obscene speech/works are not given First amendment protection. Miller v California is the currenttest a court should apply in determining if speech is obscene [Miller v. California, 413 US 15 (1973)]. The test has three parts: 1) whether an average person applying contemporary community standards wouldfind the work taken as a whole appeals to prurient interests, 2) whether the work depicts or describes ina patently offensive way sexual conduct specifically defined by applicable state law, and 3) whether thework taken as a whole, lacks serious literary, artistic, political or scientific value. The first twoparts of the test apply based on standards of the local community so that what is obscene may vary withthe locality. The third part is based on a reasonable person standard and is not based on local communitystandards. For a work to be found obscene all three portions of the test must be found. Indecent speech does receive first amendment protection. However in the context of broadcastradio and television courts have upheld FCC regulation of “adult speech”. In Sable v FCC the courtinvalidated a law prohibiting indecent Dial-a-Porn phone messages which were not obscene [SableCommunications v. FCC, 492 US 115 (1989)]. There the court found congress could regulate to protectminors by requiring use of credit cards, access codes and scrambling rules. Early cases did not give commercial speech (advertising) first amendment protection. InPittsburgh Press the court held that the exchange of information in commercial speech was important as inother types of speech [Pittsburgh Press Co. v. Pittsburgh Commission, 413 US 376 (1973)]. Modern casesprovide first amendment protection to commercial speech. Hate Speech, verbal abuse and violence directed at ethnic groups, homosexuals and religiousgroups has increased in recent years. Some college campuses have adopted speech codes prohibitingracist, sexist and homoph