Legal Landscape: Free Speech
Constitutional Protections for Free Speech
The First Amendment
The First Amendment to the United States Constitution includes the rights of freedom of speech and freedom of the press. It prevents the government from making any law that restricts either of these freedoms. It is important to note that the First Amendment also guarantees the right to anonymous speech, which the Supreme Court has found to be necessary for a democracy.
State constitutions may also provide an explicit right to freedom of expression. For example, Article I, section 2 of the California State Constitution guarantees that “every person may freely speak, write and publish his or her sentiments on all subjects” and that California laws “may not restrain or abridge liberty of speech.” California courts have held that safeguarding free speech is a paramount concern because speech is “a freedom which is the matrix, the indispensable condition, of nearly every other form of freedom.” Although the First Amendment applies only to government actions that restrict individual rights, courts in California, New Jersey, Colorado, Massachusetts, and Puerto Rico have held that their state constitutional protection for freedom of expression may apply to private actors in certain circumstances. For example, Californians enjoy free speech rights on private property, such as shopping malls, that is open to the public. As of August 2012, these courts had not yet considered the implications of these decisions in the context of modern communications technology.
The Federal Communications Commission
The FCC is also actively engaged in safeguarding free speech. In February 2015, the FCC adopted its Open Internet rules designed to protect free expression and innovation on the Internet. The Commission reclassified broadband service as common carriers until Title II of the Telecommunications Act. Under the rules, Internet service providers can no longer block internet traffic or prioritize some content while throttling other traffic. In recent years, it has also investigated the legality of cell phone disruption by government authorities
Copyright and Fair Use
Because the First Amendment prohibits Congress from making laws that abridge freedom of speech, federal statutes that implicate rights to free expression must have a buffer to safeguard constitutional rights. The federal Copyright Act is a good example. While copyright law provides a set of six exclusive, limited-time rights to copyright holders to serve as an incentive for them to create works, these rights are limited by the fair use doctrine that is delineated in section 107 of the Copyright Act. Fair use guarantees individuals the right to use copyrighted materials, without seeking a copyright holder’s permission, for various activities such as parody, satire, criticism, news reporting, teaching, scholarship, research, and transformative works. Fair use guarantees a “breathing space,” or buffer, that helps to reconcile the tension that would otherwise exist between copyright law and the First Amendment’s guarantee of freedom of expression.
The First Amendment does have limits, and some speech—such as obscenity, slander and libel, or the proverbial “shouting ‘fire’ in a crowded theater”—is not constitutionally protected. However, many laws are written to ensure that while a speaker may face consequences for her speech, a platform that hosts her expression is able to protect itself from also being liable. Such “safe harbors” are intended to encourage the creation of platforms for speech by minimizing any requirement for platforms to censor or monitor users in ordinary circumstances.
Section 230 of the Communications Decency Act
Section 230 of the Communications Decency Act (CDA) states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” This section has been interpreted to immunize services that host user content from liability not only for obscenity (the domain of the broader CDA) but also for defamation and similar torts. However, this immunity may be lost if the provider is an active participant in the creation of the content.
Section 512 of the Digital Millennium Copyright Act
Section 512 of the Digital Millennium Copyright Act (DMCA) provides a service that hosts user-generated content with a safe harbor from liability under the DMCA if it complies with certain requirements. Most notably, to claim safe harbor, a service that receives a DMCA notice-and-takedown letter must remove or block access to any allegedly infringing content. The service may restore access to the content if the user provides a counter-notification asserting that the content is not in fact infringing. Again, this immunity may be lost if the service is aware of the infringing nature of hosted content.