Issue 4.03 | Mar 1996
By William Bennett Turner
It's hard to imagine that our antique First Amendment, written in 1789, is up to the task of dealing with 21st-century digital communication. James Madison would have had a hard time getting his mind around instant worldwide electronic communication. The Supreme Court has said, ominously, that "differences in the characteristics of new media justify differences in the First Amendment standards applied to them." In light of this, some thoughtful observers of new technology have proposed constitutional amendments to ensure that government does not censor, manage, or restrict electronic communications.
The truth, however, is that we don't need a new First Amendment for digital communication. All we need is adherence to the bedrock principles of First Amendment interpretation that have grown up with us over the first two centuries of the republic. Madison's 18th-century framework is flexible enough to protect our freedoms in any century.
Reality check: free speech is not absolute
The First Amendment speaks in seemingly absolute terms: "Congress shall make no law ... abridging the freedom of speech or of the press." This has never meant, however, that people can say whatever they want wherever they want. Freedom of speech does not mean speech totally uninhibited by any legal restraint. It has always been true that some forms of speech can be outlawed or penalized - and many have been. Common examples include fraudulent advertising, child pornography, obscenity, "fighting words," help-wanted ads that discriminate on the basis of race, words used in a criminal transaction ("I'll kill your husband for US$10,000"), unkept promises, unlicensed broadcasts, libel, speech that infringes a copyright, and unauthorized disclosure of data used to make atomic weapons.
Correctly interpreted, the First Amendment does not prohibit all restrictions on speech. It doesn't prohibit private restrictions at all. Our constitution is a series of constraints on government, not on individuals or even powerful corporations. It is not a violation of the First Amendment for the Microsoft Network, if it so desired, to forbid postings that criticize Bill Gates. Microsoft is not the government, at least not yet. Similarly, CompuServe's censorship of sex newsgroups may offend freedom lovers but does not violate the First Amendment.
The amendment prohibits government restrictions on "the freedom of speech," not on all speech, and it's a mistake to argue that no speech can be restricted. In every case, the question is whether the particular "speech" is within the "freedom" comprehended by the amendment.
No fine print
The First Amendment means what the courts say it means. Since the amendment's words themselves don't tell us what falls within its "freedom," it is up to the courts, faced with the necessity of deciding particular cases, to spell out the rules for deciding exactly what speech is free, in the sense that it cannot legally be prohibited or penalized. While the courts sometimes go astray, it remains true that Americans have freer speech than any other people because our freedoms have been forthrightly defined and enforced by the courts.
In every case in which government tries to restrict speech, some high-minded - or at least plausible - reason is offered. When the Nixon Administration tried to suppress publication of the Pentagon Papers, it was argued that their publication would undermine national security. When Congress acted to prohibit phone sex, it said that such action was necessary to protect children from exposure to indecent material. When state governments forbid publication of the names of rape victims, they say it is necessary to protect privacy and encourage the reporting of sex crimes. And so on. In each new case, a court has to decide whether the government's justification prevails over the interest in free speech.
Fundamental free speech principles
William Bennett Turner (firstname.lastname@example.org) is a San Francisco lawyer who teaches the First Amendment and the Press at the University of California at Berkeley.