The First Amendment is considered by many to be an ideal that is especially essential to democracy in the United States; “Congress shall make no law...abridging the freedom of speech, or of the press, or of the people peaceably to assemble, and to petition the Government for a redress of grievances” (First Amendment, U.S. Constitution). The Constitution’s framers believed that freedom of inquiry and liberty to exercise self-expression were the hallmarks of a democratic society. The First Amendment exists precisely to protect the most offensive and controversial speech from government suppression. Throughout history the courts have upheld this freedom, while congress has been entrusted with the authority to interpret what types of speech should and shouldn’t be protected. We can argue, however, that freedom of speech – even speech of the most extreme and destructive nature – must be protected.
The right to express one's thoughts and to communicate freely with others affirms the dignity and worth of each and every member of society, and allows each individual to realize his or her full human potential. Thus, freedom of expression is an end in itself – and as such, deserves society's greatest protection. At times it may appear that courts are acting unjustly or allowing certain forms of expression that may cause harm to others to be deemed acceptable because we must protect this essential right. While it is unfortunate that certain groups or individuals produce harmful forms of speech, it is still the government’s duty to protect these forms of expression as they would any other.
Any ruling that limits free speech might have good intentions, but could lead to dire consequences. For example, consider the scenario imagine a young boy is killed while building a bomb. A search of his room and computer reveals he found the information on how to build this explosive device on the Internet.
To protect other children from being hurt by such information, the court rules providing information on the Internet that might cause harm is not protected by the First Amendment as free speech. At first glance this might seem like a just ruling, but it carries with it the potential for interpretation. About a month later someone creates a Web site that attacks several U.S. Senators for filibustering an environmental law. Under the previously mentioned court ruling, these senators could argue that the Web site criticism harms their careers. Thus, the power to judge the value of speech is dangerous and must be used responsibly by the government. A real-world example of the danger censorship poses to democracy are the cases where software used to filter out obscene material in schools and libraries also blocked the Web sites of political candidates (Haselton & McCarthy). The Web site of Jeffery Pollock, a candidate for the 3rd Congressional District seat in Oregon, once said, "we should demand that all public schools and libraries install and configure Internet Filters" (Haselton & McCarthy). After finding out that software filters also block his own Web site, he changed his mind. Pollock said, "I just went back to my website to re-read what I wrote nine months ago. That will be gone. I am incensed with what is going on here" (Haselton & McCarthy). Additionally, after finding out her Web cite is censored by the software, Nikki Oldaker, an Independent write-in candidate from Florida, said "the fact that it is being used to filter out a website for legitimate candidates speaking about the issues and their candidacies is a disservice to the American voters and the FEC and Secretary of the Senate should be fully investigating the matter" (Haselton & McCarthy). In most cases concerning the issue of censorship, however, most court decisions uphold the ideal of free speech, and the government responsibly protects all Constitutional rights.
Few cultural controversies have tested the limits of free speech more than the debate over legal abortion. It could hardly be otherwise when a single procedure is viewed by some Americans as a medical necessity and by others as murder. In the American tradition, however, free speech is no less free because it is shrill or offensive. On March 29, 2001 the 9th U.S. Court of Appeals overturned a ruling that awarded $107 million in damages to planned parenthood and others, after anti-abortion activists created a website that provided names and addresses of abortion doctors. The website which is still on the net can be found at http://www.christiangallery.com/atrocity/. The court upheld the anti-abortionists’ rights to free speech, by deciding "if their statements merely encouraged unrelated terrorists, then their words are protected by the First Amendment" (Egelko A3). The court ruled that “political speech may not be punished just because it makes it more likely that someone will be harmed at some unknown time in the future by an unrelated third party (Egelko A3)." The “ Nuremberg Files” case, as it is known, illustrates the government’s willingness to protect freedom of speech, even in the most extreme cases. Several doctors whose names and addresses were listed on the site have been murdered. The court ruled, however, that because the creators of the site were not directly involved in these crimes they were in no way liable.
As there have not been many rulings regarding the protection of speech online, we must look to past controversies to guide our interpretation of the First Amendment right to free expression as it applies to the Internet. One issue congress and the courts have disagreed about regarding the protection of symbolic speech is the protection of flag burning. In 1989 the Supreme Court heard a case of a Texas man Gregory Johnson who was convicted under a Texas law that banned flag burning and was jailed. Johnson sued claiming that burning the American flag was an act of political speech and was protected by the First Amendment (Texas v. Johnson). Furthermore, he argued that no state had the right to create such a law. In Texas v. Johnson, the Supreme Court upheld the right to burn a flag. The court considered burning the American Flag an act that is protected by the First Amendment right as free speech. Again, although flag burning is an issue that clearly walks the thin line between freedom of speech and criminal activity the court voted unanimously to uphold that right. The court further demonstrated their long standing ideal not to take sides in issue of freedom of speech.
In response to the Texas v. Johnson decision, the U.S. Congress tried to pass an amendment to the U.S. Constitution, granting the states the right to pass laws banning flag burning, regardless of previous Supreme Court precedents (Texas v. Johnson). In the fall of 1989 the "Flag Protection Act of 1989" was approved by both houses of Congress. President Bush withheld his signature, but still allowed the bill to become law (he withheld signing to show his continuing preference for a Constitutional amendment). On October 30, 1989, just two days after the “Flag Protection Act” became law, three people were arrested for burning flags in front of the US capitol. Over the next few months dozens of others were arrested across the country for burning flags in protest of the new law. It was clear that the courts would have to revisit the issue of flag burning (Apel).
“Under special provisions of the Flag Protection Act, the Supreme Court is required to hear the appeals directly from the district courts on an Expedited basis” (Apel) for flag burning cases. Thus, on June 11, 1990, the Supreme Court heard the U.S. v. Eichman case, in which they ruled the Flag Protection Act is unconstitutional. Charges against individuals convicted of flag burning were subsequently dropped. Since the 1990 ruling on flag burning, Congress introduced a Flag Burning Amendment in the 105th and 106th Congresses. The Amendments have never been accepted as public law. More importantly, however, it seems apparent that, despite the efforts of Congress, the courts will continue to find the Amendment unconstitutional. Additionally, the controversy surround flag burning as a form of expression is also a good example of a First Amendment issue in which the government must protect the rights of all, regardless of popular opinion. A recent online survey reveals that 67% of Americans support an Amendment to the Constitution that restricts flag burning (Angry.net).
Ultimately, we must remember that the First Amendment is the cornerstone of our free and open democracy. Although fear and ignorance assail the exercise of free speech in every new medium, for the sake of the generation that will inherit this country and this technology, we must ensure that the Internet uncensored. Thus, no matter what the consequence, the courts must uphold rulings that protect the First Amendment right to free speech, even if that speech is thought to be inappropriate by the Congress or many members of American society.