The Internet presents First Amendment quandaries that seem fundamentally different from those society faced previously. But are they really?
Once only people wealthy enough to own a newspaper or a broadcast station could reach a large audience. Now anyone with access to a computer or even a cellphone—in other words, just about everyone—can reach a large number of people almost instantly. It used to be, too, that serious research often required a trip to a distant library or museum. Now an astounding amount of information is available to anyone with web access. And while a totalitarian nation could once effectively cut off its population from outside information, that’s much harder, maybe even impossible.
But expression on the web can cause great harm, too. A person can be targeted for vile, hateful speech. False, ugly things can be said and quickly circulated to a huge audience. Someone angry at the end of a relationship can post sexually explicit pictures of a former lover, so-called “revenge porn,” which can then go viral. We conduct so much of our lives on the Internet, our data constantly mined, that a “reasonable expectation of privacy” in the electronic realm seems like an increasingly hazy promise.
Danielle Keats Citron and Amy Gajda, in their new books, each document ways in which the web is regularly used to cause exactly such harms. In Hate Crimes in Cyberspace, Citron, a professor at the University of Maryland’s Francis King Carey School of Law, focuses on how online hate speech ruins lives, most often women’s lives. She cites surveys that show that 60 to 70 percent of cyberstalking victims are women, and she details cases in which women have been targeted, defamed, and threatened with rape and murder.
Citron offers as an example the Yale law student who was mentioned on a site about attractive female law students and then found herself the subject of threats and vicious false statements about her academic achievements, sexual activities, and mental health. It hurt her job search and prompted her to take a year’s leave of absence from law school. When she went to the police, officers dismissed her concerns, telling her that “boys will be boys.” Eventually she sued, found out the identity of some of her harassers, and settled out of court.
On a revenge-porn site, one woman’s former lover posted nude photos of her, as well as a sexually explicit webcam tape. It was widely circulated and apparently remains on the Internet today, Citron writes, despite the woman’s persistent efforts to have it removed. In fact, those efforts have led only to further harassment. Her name and email address were posted to a site arranging sexual encounters between strangers. A fake Facebook page was created for her. And the human-resources department of the university where she was a graduate student was contacted and told that she was “masturbating for her students and putting it online.”
The woman was residing in a state where the law makes online harassment a crime, but when she went to the local police, they told her they could do nothing. The FBI said the same, because the matter, the bureau said, did not involve national security. Federal law prohibits electronic harassment, cyberstalking, and extortion, but the bureau told her it was a civil matter, and urged her to get a lawyer to sue her harassers and a gun for her protection.
On the web, anonymity emboldens people to say things they wouldn’t otherwise express. In the absence of physical and time restraints, cybermobs form quickly. “Networked technologies remove practical barriers that once protected society from the creation of antisocial groups,” Citron writes, and information can spread exponentially in seconds. The very same things that make the Internet such a uniquely powerful medium for freedom of speech make it a uniquely powerful medium for hate crimes.
That is also a theme of Amy Gajda’s The First Amendment Bubble, and though there is some overlap, as in the discussion of revenge porn, Gajda has a different approach. The thesis of her book is that, more and more, media of all types are being used to invade privacy, and that a backlash is developing in the courts that threatens free speech.
Gajda, an associate professor of law at Tulane University, describes how courts traditionally favored freedom of speech over privacy when there was a conflict between those values. But now that has changed markedly, with courts increasingly siding with those who bring claims for invasions of privacy against not just websites but media of all types—newspapers, network news, cable shows, reality TV.
She devotes a chapter to what she calls “quasi journalism,” which she defines as “those publishers that publish information outside the context of traditional mainstream journalism … highly sensational stories that at times push the envelope of propriety and truth.” This is journalism in only the most generous sense of the term. For example, TheDirty.com is a website with 20 million monthly views, which is approximately two-thirds as many as The New York Times gets online. It regularly posts embarrassing and private things about people, sometimes celebrities, often not.
There are sites, Gajda reports, that post people’s mug shots after arrests and charge the subjects a fee to have the photos removed. On other sites, she writes, college students post embarrassing photos and vicious gossip. On revenge-porn sites, sexually explicit photos and videos are posted for the world to see.
Gajda argues that free-speech protection is a fragile bubble in danger of bursting, with “skepticism bordering on anger at an out-of-control media.” The “First Amendment bubble,” she contends, is “not unlike those seen in other contexts, such as housing, the tech industry, and financial markets where heedless expansion ultimately proved unsustainable.” She is concerned that as the “scope of reporting and claims for constitutional protection are both expanded,” and “First Amendment freedoms so exceed their original foundation that they are at risk of calamitous collapse,” then “all future protection” will be put in jeopardy.
Gajda vividly documents the abuses, but to write, as she does, that this reaction will “collapse” or “jeopardize” all future free-speech protection goes too far. The cases she documents of infringement on privacy are, without doubt, alarming. But she mistakes one genuinely disturbing area of First Amendment litigation for the entirety of free speech.
Citron, in contrast, argues that many such egregious instances aren’t protected by the First Amendment at all. There is no constitutional protection for “true threats” or for speech that facilitates crime. Similarly, “extortion and ‘aiding and abetting’ speech do not enjoy constitutional protection.” Defamatory speech is not constitutionally protected, though the Supreme Court has long said that there are First Amendment limits to when there can be recovery for libel or slander. And so, Citron argues, there’s already a lot of room for legitimate prosecution for many such abuses.
Gajda offers proposals that would have a more direct effect on constitutionally protected speech. She argues for limiting the definition of who is a journalist, including for shield laws that allow reporters to keep sources confidential. Her concern is that if anyone who can put things on a blog or Facebook or the Internet can claim to be a journalist, then the protection for traditional journalists will disappear.
She also argues for a more limited definition of what is “newsworthy.” There can be liability for the public disclosure of private facts only if what is revealed is not newsworthy. Also, in defamation litigation there often must be a determination as to whether the speech is a matter of public concern. Traditionally, this was measured by whether the public was interested. But Gajda says that definition is too broad, the standard too easily met, especially when the audience’s interest is morbid or salacious.
Like Citron, Gajda would amend the Communications Decency Act of 1996. Specifically, she would like to see Congress change this federal statute “to include a provision carving out from protection those websites that have a plaintiff-proved intent to invade privacy or to defame or to inflict severe emotional harm.”
But Gajda’s proposals, more than Citron’s, raise difficult First Amendment issues. Is it realistically possible to define who is the press and explain why some sites qualify while others do not? If newsworthiness is not measured by the public’s interest, how can it be determined by judges and juries? Will they be deciding what people should be interested in? And isn’t that inherently and problematically elitist?
Perhaps a look back at the birth of American free speech can shed light on these matters. Burt Neuborne’s Madison’s Music elegantly examines James Madison’s intent when he initially drafted the First Amendment, more than 225 years ago.
Neuborne, a professor of civil liberties at New York University’s School of Law, hardly mentions the web or social media, but his analysis is relevant to both. He argues that the 45 words of the First Amendment need to be read and considered together. The six rights protected in the amendment—freedom from religion (the establishment clause), freedom of religion (the free-exercise clause), freedom of speech, freedom of the press, freedom of assembly, and freedom to petition the government for redress of grievances—create, in ensemble, a blueprint for democracy.
The First Amendment, he writes, should be understood as beginning in the two religion clauses with freedom of thought, then “progressing through three ascending levels of individual interaction with the community—free expression of an idea by an individual, mass dissemination of the idea by a free press, and collective action in support of the idea by the people.” That, he says, is “a chronological description of the arc of a democratic idea—from conception to codification. No document in the history of self-government prefigures such a carefully drawn, chronologically organized blueprint of democracy in action.”
In “Mr. Madison’s neighborhood,” he explains, are speakers, hearers, conduits (whose principal function is to transmit the speech of others to large audiences), speech targets (persons discussed or described in the speech), and government speech regulators. These categories are useful in weighing not just 18th-century town squares but also Citron’s and Gajda’s arguments, because both are especially concerned about speech targets and the role of conduits in causing harm.
Madison clearly intended to provide the greatest protection for political speech. Speech that is unrelated to the democratic process and that does great harm, be it revenge porn or invasion of privacy, should not receive First Amendment protection. Neuborne’s historical view interlocks, then, with Citron’s definitional boundaries. And his emphasis on the democratic core of free-speech principles resonates too with Gajda’s take on the current communications climate. The more that harmful expression unrelated to the democratic process is deemed constitutionally protected, Gajda writes, the greater will be the pressure to reduce all speech protections.
The difficult question—as always in First Amendment and most constitutional litigation—is where to draw the line. In grappling with that and offering provisional answers, Citron and Gajda do a great service. But the Internet is, relatively speaking, still a remarkably new medium, and social networks like Facebook are newer still. Balancing freedom against privacy and safety has always been a delicate task. But as we navigate somewhat disorientedly through new-media conundrums, Neuborne reminds us, Madison’s elegant constitutional paradigm can still serve as an invaluable North Star.
