Criminal Law – Week #8 Assignment
Final Paper
In a four to five page paper, please discuss one of the following topics in relation to the concepts covered in this course:
· The act of flag burning
· Protesting
· Burning of a Cross
· Ban on Prayer in the School System, Sports Events
· Freedom of Speech on the Internet, Legal?
· Make sure your paper follows Help write my thesis – APA formatting and citing guidelines, and make sure you use a LEGAL analysis method.
If you have an alternate topic you would like to explore that is not on this list, you must email your instructor for approval of the topic.
The Legal Aspect On The Freedom of Speech On The Internet
Name
Institutional Affiliation
The Legal Aspect On The Freedom of Speech On The Internet
Since the emergence of the Internet, the debate on the extent in which the freedom of expression would reach has taken center stage. The UN Special Rapporteur Frank La Rue stated that the right to freedom of opinion and expression has been a fundamental enabler of other rights via the Internet. It is through this freedom to express one’s opinion that the Internet facilitated the realization of other human rights. Nevertheless, one cannot downplay the new challenges that arise with exercising this right. It is possible for free speech to be used for ill motives such as anti-vaccination activists abusing their liberty to spread medical misinformation on the Internet or social media bullies using the channel to hurt people and cause harm to their victims. It would take federal and state legislatures to implement laws and employ them in respective cases. The United States government has been among the countries that has consistently developed its laws and regulations to ensure that even though individuals exercise their right to say something on the Internet, it is not deemed offensive or upsetting by another Internet user.
In the U.S, one of the landmark cases was the Reno v ACLU case where the Supreme Court ruled that speech through the Internet is entitled to the highest protection levels from government restrictions (Sangsuvan, 2013). The statutory provisions implemented to ensure this freedom need to be followed accordingly. One of them has been the First Amendment which is an integral part of American culture evidenced in its history and experience. Its key values include protecting an Internet user’s freedom to express ideas, form opinions, create art and engage in research. Also, it gives individuals and groups the ability to share their views with others and build on the ideas of others and finally allows them to promote and disseminate both knowledge and opinion. This law has been identified as very unique when compared to other similar laws either in the country and globally. American society holds the view that free expression is fundamental in order for them to remain a free society. The Supreme Court has hence broadly interpreted the First Amendment since it does not have limiting language (Sangsuvan, 2013). Undoubtedly, constitutional protection accorded to the freedom of speech has been the strongest protection given to American citizens with this right prevailing over other democratic values.
It is however prudent to note that the First Amendment only protects people from unreasonable restrictions from the government. Thus, there are instances not covered including that it does not protect people in real life or the Internet from incitement of violence nor does it provide protection from people who are making credible threats of violence (Findlaw, 2019). Considering that websites are private properties, it is voluntary for owners to develop policies relating to what constitutes free expression. An Internet user will generally have no legal recourse in case a website chooses to censor them even when it has been done discriminatorily or as a contract violation.
Jurisdictions and freedom of expression online has also been at loggerheads especially when the international community is involved. In France v. US and Yahoo! v. LICRA case, Yahoo Inc refused to withdraw its auctions on Nazi memorabilia which was considered to be violating the French anti-hate speech laws (Benedek & Kettemann, 2020). Yahoo contested the French court but the latter imposed a fine and rendered the website to block French users to the numerous related objects that were offered in the Yahoo US website. Instead of engaging in further defense in France, Yahoo Inc. decided to ask the American courts to confirm how it would be impossible to impose the French sentence. The District Court stated that mandated Yahoo Inc to use geo-location software to filter out the French answers violated their First Amendment rights and could not be enforced. The Ninth Circuit Appellate Court reversed the decision on technical grounds but hinted that it had not been convinced by the arguments presented by Yahoo Inc. Notably, these two jurisdictions still provided different treatment to the freedom of expression on the Internet. This demonstrated the legal challenges faced when safeguarding the freedom of expression on the Internet in a globalized contest. There is a possibility that pursuing legal cases in different jurisdictions could lead to different outcomes. Reliance on legal approaches could be less effective and less promising in protecting the fundamental human rights.
Section 230 of the Communications Decency Act passed in 1996 has been another important law that protects freedom of speech on the Internet. Particularly, the law declared that “interactive computer service” cannot be treated as the publisher or speaker information provided by a third-party content provider (French, 2020). This law has been protecting websites from lawsuits in case the third party posts illegal content. In reducing the risk that Internet platforms will quash speech due to fears of lawsuits, the law would protect Internet intermediaries with a limited shield from liability (Bambauer, 2020). Mostly, the platforms and other interactive computer services cannot be held liable for content created by a third party. There are still exceptions in the law to inlclude copyright violations, sex work-related material, and violations of federal criminal law.
However, the law has been increasingly controversial and frequently misinterpreted. The critics have stated that the broad protections in this law have allowed powerful companies to ignore real harm caused to users. The online platforms are deemed to be immune despite having an active role to amplify the reach of third party content (Johnson & Castro, 2021). Thus, critics assert that online platforms are required to take more action in addressing harmful third party content to millions of users especially if liability was placed on them for promoting this kind of content. It is however prudent to also notice that this additional pressure being put on Internet platforms may cause a chilling effect that could make it challenging for all users to communicate openly (Bambauer, 2020). Extensively pushing these platforms gives political figures a higher privilege whereby they could push platforms to curate content that protects their interest. This is without putting any effort into enacting and defending laws that mandate censorship. Other lawmakers have stated that the law incorrectly claims to protect the ‘neutral platforms’ which is a term that is irrelevant to the law.
The Internet has challenged the right to freedom of expression. On one hand the Internet will empower the right through the provision of new means of expressions. Conversely, the free flow of information raised the importance of content regulation such that Internet users do not abuse this right at the risk of potentially harming others (Jorgensen, 2001). This schism led to various legal approaches focussed in regulating the content. Through the First Amendment and Section 203, the American Constitution has been protecting the citizens’ freedom to express themselves on the Internet. However, there are awesome legal gapos and controversies that these laws fail to handle. Consequently, the Internet being a strong public sphere that should ensure a similar level of protection for all its users, still has a long way to go in strengthening the protection of freedom of expression on the Internet.
References
Bambauer, D. E. (2020, July 16). How section 230 reform endangers internet free speech. Brookings. https://www.brookings.edu/techstream/how-section-230-reform-endangers-internet-free-speech/
Benedek, W., & Kettemann, M. C. (2020). Freedom of expression and the internet: Updated and revised 2nd edition. Council of Europe.
Findlaw. (2019, March 21). Can you violate the freedom of speech on the internet? FindLaw. https://www.findlaw.com/legalblogs/law-and-life/can-you-violate-the-freedom-of-speech-on-the-internet/
French, D. (2020, January 24). The growing threat to free speech online. Time. https://time.com/5770755/threat-free-speech-online/
Johnson, A., & Castro, D. (2021, February 22). Fact-checking the critiques of section 230: What are the real problems? ITIF | Information Technology and Innovation Foundation. https://itif.org/publications/2021/02/22/fact-checking-critiques-section-230-what-are-real-problems
Jorgensen, R. (2001). Internet and Freedom of expression. Sweden: Raoul Wallenberg Institute.
Sangsuvan, K. (2013). Balancing freedom of speech on the internet under international law. NCJ Int’l L. & Com. Reg., 39, 701.
