Ink Blog: The First Amendment and the internet – Ashland Daily Press

This week in my POLS 117 (freedom of speech) class at UW-Eau Claire, we end the semester by discussing the freedom of expression on the internet. To understand constitutional protections for expression online, it is useful to recount how the U.S. Supreme Court has interpreted the First Amendment to apply to media that emerged earlier in American history.

The Court has not always found the same level of protection for expression in newer media as it has for the printed word and speech uttered in person. For instance, in Mutual Film Corporation v. Industrial Commission of Ohio (1915), the Court found that movies received no First Amendment protection. The Court overturned this in Burstyn v. Wilson (1952), when the justices held that expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments.

The Supreme Court maintains that the First Amendment permits the Federal Communications Commission (FCC) to restrict more expression in broadcast media (radio and television) than the government may regulate in print media. In cases like Red Lion Broadcasting v. FCC (1969) and FCC v. Pacifica Foundation (1978), the Court ruled that the government possesses greater power over broadcast media due to three factors: (1) the long history of its regulation, (2) the scarcity of available frequencies, and (3) its invasive nature.

What about the internet? The foundational case is Reno v. ACLU (1997), where the Court ruled that the government does not possess greater regulatory power online like it does for broadcast media. Regarding the three factors above, the Court in Reno found that those factors are not present in cyberspace.

Put another way, in 1997 there was no long history of government regulation of the internet, there was no structural limit to how many people could produce online content, and the internet was not deemed to be invasive. Therefore, the governments power to regulate the internet is more restricted by the First Amendment. In Reno, the Court spoke positively of the internet as a vast platform from which to address and hear from a world-wide audience of millions of readers, viewers, researchers, and buyers.

As for social media, the Court in Packingham v. North Carolina (2017) reasoned that a fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. The Court went on to state the following: While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace the vast democratic forums of the Internet in general, and social media in particular. Thus, the Court scrutinizes government attempts to ban people from social media.

What about persons who have their accounts removed or suspended by social media companies? While the Constitution protects ones free expression rights from being violated by the government, American courts have not found that the First Amendment restricts what social media companies may do regarding user accounts.

The basis of this approach can be found in a case involving a privately-run cable company, Manhattan Community Access Corporation v. Halleck (2019), where the Supreme Court stated that the Free Speech Clause of the First Amendment constrains governmental actors and protects private actors. Other federal courts have used this reasoning in recent cases to protect social media companies which as private actors possess their own First Amendment rights from laws that would restrict those companies abilities to moderate content or ban/suspend users.

The Supreme Court could eventually overrule or modify some of these precedents, just as it did when overturning Mutual Film Corporation in Burstyn to reinterpret First Amendment protections for movies. Although there are legitimate questions about what powers the government has under the Constitution to regulate social media companies, those companies have not been found to be state actors. Individuals who disapprove of social media companies policies can use their own First Amendment rights to advocate that those companies change their policies. The scope of what the First Amendment protects online is shaped by the Reno, Packingham, and Manhattan Access cases.

Eric T. Kasper is a professor of political science and the director of the Menard Center for Constitutional Studies at UW-Eau Claire. He also serves as the municipal judge for the City of Rice Lake and is a member of the Wisconsin Bar Association.

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Ink Blog: The First Amendment and the internet - Ashland Daily Press