Free Speech and the Internet ReVisited

Many feel that any restriction to free speech is generally a dangerous and slippery slope, reasoning that once the government decides to ban or limit speech in even the most innocuous cases, it becomes a small crack in the right to free speech which can only grow. Because the  very first Amendment to our Constitution contains protection of speech, it is just not worth the gamble to mess with it.

On the other hand, there are a growing number who would limit Internet speech to stop hate speech and “fake news”  which most people feel contributes to current distrust of any information from the Left if you are a member of the Right and vice-versa.  It divides, not informs the nation. What to do?

It seems time to re-examine the laws concerning information flow as well as how we govern ourselves. Perhaps a multi-party political system like those in Europe instead of a two-party political system would produce better results because it affords voters with more nuanced choices --- a voter doesn’t have to swallow the entire platform of either party.

The down side to multi-party systems is that the winner of an election usually gets a ruling party that has garnered less than 50% of the vote.  The rebuttal to that is simple: due to the structure of our current Electoral system the outcome of winning by less than 50% of the national vote has been happening with greater frequency --- for example the 2016 presidential election where Clinton received 2.87 million more votes than Trump but lost in the Electoral college (Wikipedia).  Also, because European elections seldom elect a government with a clear majority, the winner has to form a coalition with one or more of the other parties in order to pass legislation. On the other hand, one can argue that forming coalitions is similar to what we currently do --- but by individual members of the other party crossing over, voting their conscience or, more likely, creating an obligation- dependency for the receiver of the vote to help out the giver in future votes. Politics is complicated.

In order to gain a better understanding of the issue of Freedom of Speech on the Internet, we must first understand some of the history of  Section 230 of the Communications Decency Act or CDA. Here goes:

“Congress enacted the Communications Decency Act (CDA) as Title V of the Telecommunications Act of 1996 in an attempt to prevent minors from gaining access to sexually explicit materials on the Internet. (Reno v. American Civil Liberties Union (1997)), (However) the Supreme Court ruled the CDA to be unconstitutionally overbroad because it suppressed a significant amount of protected adult speech in the effort to protect minors from potentially harmful speech.”

(https://www.wiley.law/newsletter-59)

You can see that  the CDA had a very short lifetime of about one year because it was very quickly opposed by the Internet community as well as the ACLU and the American Library Association on the grounds that it was violating the right to free speech. Librarians in particular were distressed. They had tried to set up filters on their computers to adhere to the CDA and block porn sites for example but soon realized they were throwing out the baby with the bathwater. A list of sites that were unfairly  blocked included sites ranging from  ‘Good Vibration Guide to Sex’ to ‘Contraception and Sexually Transmitted Diseases’  to sites devoted to the topic of breast cancer(www.womens-health.org/sex.htm) and even one that remains a mystery to me:  “A Christmas Carol” by Charles Dickens !

“https://www.ntia.gov/legacy/ntiahome/ntiageneral/cipacomments/pre/fepp/appendixA.html”

Because established law will always lag behind the advance of  technology,  it is becoming increasingly clear that we have to re-examine much of our law due to changes wrought by the Internet.  As if the Internet giants (Apple, Google, Facebook and Amazon) did not have enough trouble with Congress probing privacy concerns as well as beginning to investigate if they are monopolies.

 Who  knew, in 1991, that the World Wide Web (WWW) --- aka the  Internet --- would raise such interesting and perplexing problems?