The United States is facing challenges in applying First Amendment principles from the eighteenth century to modern communications. Speech and assembly in the eighteenth century was extremely limited when compared to speech now. This chapter examines two cases where the government has intruded upon fundamental rights contained in the First Amendment. In the first case, a government, in an effort to stop a protest, cut off all wireless mobile and Internet communications. This amounted to a digital gag and ear plugs for the protesters. In this case, the responsible government officials did not even contemplate that this might violate the fundamental rights of the protesters. In the second case, government employees were fired for using Facebook to “like” the page of a political candidate. The trial court ruled that “liking” on Facebook was not speech and therefore did not garner constitutional protection. These two cases represent warning signs that the United States, just like other countries, is struggling to adapt eighteenth century legal principles to modern communication. The digital revolution is happening in the United States and the courts will eventually have to develop a new set of rules based on the principles in the First Amendment.
TopIntroduction
According to estimates by the International Telecommunications Union, in 2013 nearly 2.75 billion people are currently using the internet. The Internet connects nearly three in every seven people on the planet. (International Telecommunications Union, 2013). The ability of so many people to communicate, share ideas, and organize is unprecedented. Along with this interconnectedness comes the power to challenge governments. Although the United States has long protected political speech and the right to organize protests, the digital age has provided a platform that was unfathomable when the founders created the United States. The government is struggling in applying the concepts of freedom of assembly and speech to situations made possible by digital communications. Ultimately, these tensions end up in the legal system and courts are trying to define how these concepts apply in light of all of the technical advancements in communication.
Advancements in technology have made the speed and scale of communication jump exponentially. Although technology has eroded privacy, it has also made it possible for people to share ideas and organize protests against the government at unprecedented speed and scale. To what extent are these fundamental rights scalable? Are they absolute or do they need to be modified given the scale and scope of communications?
When the founders of the United States incorporated the fundamental principles of freedom of speech and assembly into the US Constitution, they understood the importance of these rights in a democracy. Although these rights are essential to a democracy, they also pose threats to a government as they give power to the people to affect change. This tension between what is best for a democracy and what is best for a current regime underlies many efforts by governments to curtail these rights in order to maintain power. The Constitution protects the rights of people to organize and protest the government and share their ideas with others.
The United States Constitution provides “Congress shall make no law...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” (Amendment I).
Why protect freedom of speech?
There are many reasons the founders chose to protect freedom of speech and assembly. First, the “First Amendment was adopted to curtail the power of Congress to interfere with the individual's freedom to believe, to worship, and to express himself in accordance with the dictates of his own conscience” (Wallace v. Jaffree, 1985).
Second, the First Amendment protects “unpopular individuals from retaliation -- and their ideas from suppression -- at the hands of an intolerant society” (McIntyre v. Ohio Elections Commission, 1995).
Third,
At the heart of the First Amendment lies the principle that each person should decide for him or herself the ideas and beliefs deserving of expression, consideration, and adherence...government action that stifles speech on account of its message or that requires the utterance of a particular message favored by the government, contravenes this essential right (Turner Broadcasting System v. Federal Communications Commission, 1994).
Thus, it is important that people be able to express themselves without fear of reprisal from the government, because a democracy is most successful when people are freely able to exchange ideas and form their own opinions. These protections are important to a democracy because they allow for a free exchange of ideas, and from this “marketplace of ideas,” a society can select its path. “The First Amendment reflects a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, because speech concerning public affairs is more than self-expression; it is the essence of self-government” (Snyder v. Phelps, 2011).