What About the First Amendment?
Understanding the difference between speech protected by the First Amendment and unprotected speech that violates another person's civil rights.
The First Amendment to the United States Constitution is arguably one of the most widely referenced, and widely misidentified and misunderstood right enjoyed by Americans. Contrary to popular belief, the so-called “freedom of speech” amendment doesn’t guarantee a citizen free speech. In fact the First Amendment only protects citizens from government intervention or censorship over what they say or print, when criticizing the government, and even then, there are limitations. Remember, the First Amendment was designed to insure that democracy could flourish during the early days of our country’s history. To do so, it ensured that people wouldn’t be subjected to a government established religion, unlike many countries that not only established an official religion but persecuted and killed those who didn’t follow that religion. The First Amendment provided that people had the right to assemble, or come together, and through freedom of speech and freedom of the press, they could voice their grievances and share ideas about governance. However, even within those rights, there are established limitations. People have been arrested for speaking out against the government, particularly if their words rise to the level of sedition.
So, the idea that a person can say anything that they want, about anything or any person, wherever they want to say or print it, is not only NOT protected by the First Amendment, it isn’t even addressed in the First Amendment.
What types of speech aren’t protected?
While your ability to speak out against the government is largely protected, other types of speech are regulated by law, and in the case of online expression, additionally regulated by the rules or “terms of service” (TOS) dictated by the company providing the online platform.
Generally the following are illegal and/or against TOS.
Defamation (lying about someone)
Solicitation to commit a criminal act
Fighting words - words that express an interest in fighting or words of a racist, sexist, or ethnic nature likely to incite
Using the photo or likeness of a child w/o parental consent
Unwanted or harassing sexual content including revenge porn
Invasions of privacy
Plagiarism of copyrighted material
But what about my right to free expression?
“My right to swing my fists ends where another man’s nose begins.”
For at least 200 years, this simple concept has been used to illustrate the natural limitations of personal freedom. While I have the right to swing my arms wildly, when doing so intersects with or impedes the right of someone else (in this case the right not to be assaulted), my freedom ends.
We have a rich tradition in this country that allows people to freely express themselves with their words, art, music, and movement. When these words and images cause offense and make it into either the news cycle or into the court room, the right to free expression has routinely been upheld. I have the right to make offensive art, publish offensive works, or to say offensive things, provided that others have the right to NOT consume those offensive works AND provided that I haven’t violated the law by using words or images that are not protected.
This essentially means that I have the right to make offensive songs, but you have the right to not download that track, to not buy a ticket to my concert, or to turn the dial if my song comes on the radio. You have the right to NOT consume things that offend you, but that doesn’t impede my right to create those things.
However, while I may have the right to freely express myself, that right ends if my chosen form of expression impedes your right to be free from defamation, free from harassment, violates your copyright, etc.
So how can conspiracy theorists and alt political groups get banned from social media? Isn’t what they say about the government protected?
What conspiracy theorists and other groups say about the government is largely protected….from the government. But that doesn’t mean that a private company has to host content that is against it’s TOS (terms of service). Internet providers are private companies and can create their own rules that may ban legally protected behaviors. So, while you may have the legal right to join a hate group, Wordpress may ban that group from creating a blog on their platform, espousing those views.
In practice however, most groups and individuals banned from social media platforms aren’t being banned because of conspiracy theories or unpopular beliefs. They are being banned for repeated and direct violations of TOS, particularly for attacking individuals (specifically private citizens as opposed to public figures), using racial, ethnic, or sexual slurs, attempting to incite violence or suicide, or the continual posting of copyrighted material.
27% Have Avoided
posting online after witnessing the harassment of others. While one of the arguments against more online oversight is the potential “chilling effect” or discouragement of open dialogue, unchecked online harassment is having a very real effect.*
Together, through empowerment, education, and advocacy we can effect change and create a safer more inclusive online experience for all.
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