Free Speech Post-Mortem 2022

Written by ‘The Polybius Press’

This article is solely the opinion of the author, this is not legal or financial advice. If you have questions or concerns you
should do your own research or consult a professional for assistance.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or 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"

In the almost two hundred and fifty years that the United States of America has existed, it has faced many attacks on its 1st Amendment Rights, and still today it faces new challenges that could have chilling effect on all of our god given rights enshrined in founding documents.

Schenck v. United States (1919)
In this case SCOTUS Justice Oliver Wendall Holmes famously declared that the 1st Amendment would not protect a person ‘falsely shouting fire in a theatre and causing a panic”. Although it was greatly criticized, Schenck remained an important precedent until it was superseded by Brandenburg v. Ohio (1969), where Brandenburg held “advocacy of the use of force or violation of law is protected unless “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action”.

New York Times Co. v. Sullivan (1964)
In 1960 NY Times published advertisement in support of the Civil Rights Movement that decried actions of the police in
Montgomery, Alabama. The public safety commissioner in Montgomery used the newspaper for libel (publishing false statements)because some of the allegations in the ad were demonstrably false. SCOTUS rules the newspaper was constitutionally protected in this instance, despite the false allegation, since the paper did not knowingly and recklessly publish the inaccuracies. The important precedent of the case is that “honest mistakes about government officials have to be constitutionally protected even if they are false and damaging to the official because otherwise people will be discouraged from criticizing government officials.” This speech would not be protected if the newspaper published falsehoods knowingly and purposefully.

Brandenburg v. Ohio (1969)
The leader of a branch of the KKK was arrested for advocating violence in a speech he gave during a filmed rally. In his remarks he spoke of taking “revengeance” (an invented combination of “revenge” and “vengeance”) against African Americans and Jews. SCOTUS rules inflammatory speech was constitutionally protected. In its opinion it drew the distinction between speech that advocates for criminal action in a general way and speech that incites an immediate crime. So, if somebody is giving a speech to a crowd outside a building and saying “lets go and burn this building down” … that might be punishable. SCOTUS made clearthat if his speech were encouraging an audience to immediately commit a crime – to immediately loot, riot, or burn down buildings, for instance – that speech would not be protected by the 1st Amendment.

Cohen v. California (1971)
Then 19-year-old Paul Cohen was arrested for wearing a jacket in a California courthouse that protested the draft with an obscenity. A lower court ruled that Cohen has the right to speak out against the draft, but not the right to do it with obscene language in a public place. SCOTUS said it’s important that people be free to choose their words. “Even if those words are angry words, even words that are seen as offensive words. That itself can be an important part of the message”. And using obscenity in public would not necessarily be protected, if it were directed at a specific person and intended as “fighting words”.

The Federal Communications Decency Act – 47 U.S.C § 230 (1996)
In short this was implemented to reportedly allow the internet to flourish, and in doing this it provided protections to internet companies so they are not treated as publishers for content being posted on their platforms and allows them to moderate their content by removing posts that violate the services own standards, so long as they are acting in good faith.

Now in the 2020’s when everyone wants to be a Prominent streamer or Influencer, they are using social media platforms to generate significant amounts of revenue. What probably should be a minor exchange of words in normal circumstances sometimes evolve into “mass flag campaigns”, swatting activities, and potentially even worse actions from people that feel slighted.

Furthermore, the United States has become very polarized along partisan political lines. As a result, it is starting to appear like some of these social media platforms may be censoring dissenting opinions from being heard on their platforms, or that algorithms behind the scenes are possibly giving greater weight to “conformist viewpoints”. A lot of people have begun questioning how information on these platforms is or is not being manipulated. When you utilize the various social media platforms are you getting a purely organic overview of public discourse? How do we really know either way?

Social Media platforms appear to be playing the role of both publisher and platform and that is okay if they are consistently applying their clearly defined terms of service to everyone on the platform not just those who they disagree with.

Free speech by all parties should be welcomed, to simply tell the other person to go start their own social media platform is being pretty disingenuous to say the least. Everyone knows that there are a handful of platforms that hold the vast majority of market share, and that if you aren’t operating on these premium platforms, you can’t even come close to being competitive etc.

While I think that Section 230 provides much needed protections for internet platforms, it was conceived and enacted into law at a time when most people were just starting to see what the internet was even about. The internet and social media have changed so much since that time that we really need to update Section 230 to address current times.

The Greatest enemy of liberty is fear.
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