Free Speech and the Internet

By Ira M. Gostin, MBA, APR

For anyone in the communications, marketing or journalism world, you probably grew up with the holy grail that is the first Amendment. “Freedom of speech, religion and of the press” is the way we think of it.  

Here’s the actual wording:

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.

I quote it because in reality it’s meaning is quite a bit different than how we generally think of it. There’s been great discussion the past six months as some social media outlets have censored posters including the president of the United States.  

Under the guise of editing out blatant lies, or comments and posts that might be dangerous, hurtful or inflammatory, outlets such as Facebook, Twitter and others have resorted to censorship to keep the peace.

The definition of censorship is: “the suppression or prohibition of any parts of books, films, news, etc. that are considered obscene, politically unacceptable, or a threat to security.”

And before you accuse me of bringing my own bias into the conversation, I’m not taking sides. I’m just thoroughly confused.  What I do understand, is that the First Amendment does not come into play whatsoever. The Amendment states that “Congress shall make no law…,” which means that whatever Twitter does, has nothing to do with freedom of the press.  

Is Twitter actually a media source? Is this blog considered the media since I have a degree in journalism and at one time worked for a news organization? There’s no technical definition of “the press” so short of Congress actually passing a law, the First Amendment doesn’t come into play.

Confused yet?

As someone who believes in the free market system, I believe that a private entity DOES have the right to limit participation by its users. Whether it’s President Trump, Antifa or the New York Yankees, publishing information to the public should be honest, truthful and not be akin to the shouting of “Fire!” in a crowded theater (see Schenk v. US, 1919 for more and Brandenburg v. Ohio, 1969 to really roll your sleeves up). 

In pre-Internet days, if I made a sandwich board sign and walked around that says, “Joe Smith is a commie and should be shot,” am I covered under the First Amendment? The reality is that no, I would not be.

Jack Dorsey, the CEO and founder of Twitter has struggled with the fine line of presenting a platform for a conversation and where it intersects with free speech. I’d recommend reading Mr. Dorsey’s comments in a 2018 article in Wired, before things got really crazy in 2020. 

But wait, there’s more. Unlike oversight of the broadcast airwaves by the Federal Communications Commission (FCC), the internet and media have no such oversight. Again, I’m personally torn as I really don’t want to see government regulation of the Internet, but the direction it is heading is very unchartered territory.   

In 1996, congress passed the Communications Decency Act (CDA) in an attempt to prevent minors from accessing pornography on the internet. Within the CDA is Section 230, which says, "No 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," or in short, you can’t hold the application responsible for something that is in an individual post. It is also believed that Section 230 acts as a sort of “shield law protection” for Internet journalists, bloggers etc.

Really confused yet?

The PRSA Sierra Nevada chapter recently hosted a conversation about this topic with Professors Patrick File and Ben Berkinbine from the Reynolds School of Journalism at the University of Nevada. Here’s the replay link. It’s worth the watch.

As communications and marketing professionals, it becomes our responsibility to be aware of the laws, common practices and what is happening in the world of communications platforms and advise our clients and executives to maintain a civil, truthful direction. To pull from another case, if your internet post presents a “clear and present danger” to the truth, to an individual’s right to privacy or to the public safety as a whole, it’s probably wise to create a new solution. 

Ira Gostin is an Accredited member of the Public Relations Society of America and coordinates the Sierra Nevada Chapters ethics committee. He specializes in investor relations and public relations strategies for global clients.

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