Cases discussed in this episode:

• Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)
• Ashcroft v. ACLU, 535 U.S. 564 (2002)
• United States v. American Library Association, 539 U.S. 194 (2003)
• Elonis v. United States, 575 U.S. 723 (2015)
• Packingham v. North Carolina, 582 U.S. 98 (2017)
• Gonzalez v. Google LLC, 598 U.S. ___ (2023)
• Twitter, Inc. v. Taamneh, 598 U.S. ___ (2023)
• Counterman v. Colorado, 599 U.S. ___ (2023)
• 303 Creative LLC v. Elenis, 600 U.S. ___ (2023)

Transcript:

This is Michele Goodwin, executive producer of Ms. Studios and  Ms. Media. Welcome to our new, limited series, Speaking Freely: a First Amendment Podcast with Stephen Rohde. In this illuminating new series, prominent First Amendment expert, Stephen Rohde, who has litigated and written about freedom of expression for decades, will explore some of the most controversial free speech and free press cases decided by the U.S. Supreme Court. Looking at hot-button issues like hate speech, defamation, incitement, social media, obscenity, flag burning, espionage, and academic freedom. 

0:00:44

We hope you enjoy these intriguing programs. For a full transcript, links to cases referenced in this episode, and further reading, check out our landing page at MsMagazine.com. And now, here is your host Stephen Rohde with our episode: Free Speech and the Internet.

00:00:56 Stephen Rodhde:
Today we’re going to take a look at how the First Amendment impacts the internet and online communications. In every era, the law and the Constitution need to keep pace with the emergence of new technologies. This was true for the printing press, the telegraph, motion pictures, radio, television, cable, and now online communications. So, we’ll be asking whether the internet in general and social media sites in particular are protected by the First Amendment, and if so, what are the contours of that protection.

00:01:34

The Supreme Court grappled with these questions for the first time in 1997 in the landmark case of Reno v. American Civil Liberties Union. At that time, the extent to which the Supreme Court would extend First Amendment protection to the internet was uncertain. Would the court treat the internet under the broadcast model similar to TV and radio, which are highly regulated by the federal government, or would the court handle it under the print model where newspapers, magazines, and books are unregulated as to content except for narrow exceptions for such things as defamation and obscenity.

00:02:25

The specific question in the Reno case was whether the anti-indecency provisions of the 1996 Communications Decency Act, the CDA, violated the First Amendment guarantee of freedom of speech. The CDA made it a crime to knowingly transmit obscene or indecent messages to anyone under 18, or to knowingly send to a person under 18 anything that in context depicts or describes in terms patently offensive, as measured by contemporary community standards, sexual or excretory activities or organs.

00:03:39

In a welcome ruling for First Amendment advocates, the court unanimously determined that the internet should follow the print model and held that the anti-indecency provisions of the CDA violated the First Amendment. Speaking for the court, Justice John Paul Stevens called the internet “a vast democratic forum” in which social media users employ websites to engage in a wide array of protected First Amendment topics as diverse as human thought.

00:04:20

Applying these fundamental principles, he wrote at length as follows: “we are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve.

00:05:09

It is true that we have repeatedly recognized the government interest in protecting children from harmful materials. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the government may not reduce the adult population to only what is fit for children.” In an immediate response to the Reno decision, Congress in 1998 passed the Child Online Protection Act, or COPA, which dealt only with minors’ access to commercial pornography. It provided methods to be used by site owners to prevent access by minors. But in 2004 the Supreme Court struck down COPA in a case called Ashcroft v. American Civil Liberties Union.

00:06:12

The court stated that given the First Amendment interest at stake, less restrictive methods, such as filtering or blocking, could be used instead. The court suggested that those alternative methods were at least in theory more effective than those specified in COPA because of the large volume of foreign pornography that Congress cannot regulate. In 2003 in the case of United States v. American Library Association, the court did allow the federal government to require libraries to install filters on their public computers to protect children from obscene material as a condition for receiving federal aid to purchase computers.

00:07:06

The three dissenting justices viewed the requirement of filtering devices on library computers, which both adults and children had to request to be unlocked, to be an overly broad restriction on adult access to protected speech. More recently, the Supreme Court revisited the question of the internet and the First Amendment in a 2017 case called Packingham v. North Carolina. The interesting facts of that case are as follows. In 2002 Lester Gerard Packingham, then a 21-year-old college student, had sex with a 13-year-old girl.

00:07:57

He pleaded guilty to taking indecent liberties with the child. Because this crime qualified as an offense against a minor, he was required to register as a sex offender, a status that could last for 30 years or more. As a registered sex offender, he was barred under a 2008 North Carolina law from using commercial social networking sites. In 2010, a state court dismissed a traffic ticket against Packingham. In response, he logged onto Facebook and posted the following statement on his personal profile, “man god is good. How about I got so much favor they dismissed a parking ticket before court even started. No fine. No court costs. No nothing spent. Praise be to god. Wow. Thanks Jesus.”

00:09:05

Packingham was indicted under the North Carolina law barring sex offenders from social media. After the trial court denied his motion to dismiss the indictment on First Amendment grounds, he was ultimately convicted and given a suspended prison sentence. At no point during the trial or sentencing did the state allege that Packingham had contacted a minor or had committed any other elicit act on the internet. Packingham appealed and he won his case in the North Carolina Court of Appeals, but he lost in the North Carolina Supreme Court. He then took his case to the U.S. Supreme Court.

00:09:53

The Supreme Court unanimously held that Packingham’s conviction violated the First Amendment. Justice Anthony Kennedy wrote the opinion for the court. He began with the fundamental principle that under the First Amendment all persons have access to places where they can speak and listen. We all know that a street or a park has been the traditional forum for the exercise of First Amendment rights. Justice Kennedy, citing the Reno case, observed that today cyberspace in general, and social media in particular, are the most important places of the exchange of views.

00:10:42

Justice Kennedy pointed out that in order to survive First Amendment scrutiny, a law must be narrowly tailored to serve a significant government interest. In other words, the law must not burden substantially more speech than is necessary to further the government’s legitimate interests. He acknowledged that for centuries now“inventions heralded as advances in human progress have been exploited by the criminal mind,” and that “new technologies all too soon can become instruments used to commit serious crimes” and “so it will be with the internet and social media.”

00:11:36

He also acknowledged that “the sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts of a decent people.” Consequently, a legislature may pass valid laws to protect children and other victims of sexual assault from abuse, but the assertion of a valid governmental interest “cannot in every context be insulated from all constitutional protections.”

00:12:27

He pointed out that “given the broad wording of the North Carolina statute at issue, it might well bar access not only to commonplace social media websites but also to websites as varied as Amazon.com, WashingtonPost.com, and WebMD.com, and to social networking sites such as Facebook, LinkedIn, and Twitter.” Justice Kennedy hastened to add that “this opinion should not be interpreted as barring a state from enacting more specific laws than the one at issue. Specific criminal acts are not protected speech even if speech is the means for their commission.”

00:13:16

However, the statute in question enacted what he called a“prohibition unprecedented in the scope of First Amendment speech it burdens.” He went on at length to explain as follows, “social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind. By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principle sources for knowing current events, checking ads for employment, speaking and listening to the modern public square and otherwise exploring the vast realms of human thought and knowledge.

00:14:09

These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.” Justice Kennedy then quoted the Reno case and noted that the websites allow a person with internet connections to  “become a town crier with a voice that resonates farther than it could from any soap box.” Kennedy concluded by noting that the government “may not suppress lawful speech as a means to suppress unlawful speech.”Since that’s exactly what North Carolina did in this case, its law must be held invalid.

00:14:57

It’s obvious that in the 20 years since Reno had been decided in 1997, Justice Kennedy and the rest of the court had become more familiar with online communications. In Reno, the court obviously didn’t want to suffocate the internet in its infancy. In Packingham, the court was eager to see it grow unfettered by over broad and vague government restrictions. At this point, it’s worth taking a moment to look at a Supreme Court case involving online speech that was decided shortly before Packingham. 

00:15:42

On June 1, 2015, the Supreme Court in an 9-to-1 decision reversed the conviction of Anthony Douglas Elonis for posting threatening messages on Facebook. Here’s what happened in that case. Elonis’s seven year marriage was over. His wife had left him and taken their children, and he had lost his job. An aspiring rap artist, he saw himself as the next Eminem. Using the name Tone Dougie he publicly posted a violent rap song that appeared to threaten his wife and others. 

00:16:27

For example, after referencing a sketch by a group called “The Whitest Kids You Know,” which originally said “I want to kill the president of the United States.” Elonis replaced the president with his wife using the following words: did you know that it’s illegal for me to say I want to kill my wife. It’s illegal. It’s indirect criminal contempt. It’s one of the only sentences I’m not allowed to say. Now it was okay for me to say it right then because I was just telling you that it’s illegal for me to say I want to kill my wife. Elonis added the post as follows, “art is about pushing limits. I’m willing to go to jail for my constitutional rights, are you?”

00:17:27

A week later he posted about local law enforcement and a kindergarten class which caught the attention of the Federal Bureau of Investigation. Then, he wrote a post on Facebook about one of the agents who visited him. Here were his words: “took all the strength I had not to turn that bitch ghost, pull my knife, flick my wrist and slit her throat leaving her bleeding from her jugular in the arms of her partner.” In his defense, he pointed out that he had included disclaimers indicating that his lyrics were “fictitious” and “therapeutic.” 

00:18:15

Nonetheless, the jury convicted Elonis under a federal law prohibiting the communication of a threat and he was sentenced to three-and-a-half years in prison. The case could have focused on one of the narrow exceptions to the First Amendment, namely true threats, but the court never had to reach the First Amendment. Instead, it found that under general principles of federal criminal law, the jury had been improperly instructed by the trial judge. The jury should have been asked to decide whether Elonis had intended his post to actually threaten his ex-wife. Instead, the jury had only been asked to decide whether she reasonably felt threatened. 

00:19:05

While this outcome may seem to have left his ex-wife without protection, I want to add that she had previously obtained a personal restraining order against Elonis under her state’s domestic violence laws. But the record doesn’t indicate that she sought to hold him in contempt of violating that order. Instead, she sought to have him criminally prosecuted. Elonis may have struck a blow for free speech, but he paid a price. While the case was on appeal, he served three-and-a-half years in prison. The trend of the court to give broad First Amendment protection to online speech continues to the present.

00:19:49

In a most recent Supreme Court term which ended June 2023, the court issued no less than four decisions dealing with online communications. 

00:20:47

First, Counterman v. Colorado. In this case, in a 7-to-3 decision, the court overturned the conviction of Billy Raymond Countermen for stalking a musician by sending her hundreds of Facebook messages that she said made her fear for her safety. In an opinion by Justice Elena Kagan the court heightened the intent requirement for convicting a person of making a true threat. The court borrowed a standard from the landmark defamation case of New York Times v. Sullivan, which we’ve discussed before on this podcast.

00:21:36

To convict someone of making a true threat online and presumably elsewhere, the court held that the First Amendment requires prosecutors to prove that the defendant consciously disregarded the substantial risk that people hearing the words may believe them to be threatening. In the next two decisions issued during the past term, both unanimous, the court protected social media sites from civil liability for actions taken by third parties linked to communications they posted on those sites. In one of those two cases, Gonzalez v. Google, LLC, the family of a victim of a 2015 Islamic state terrorist attack sought to hold Google liable for allowing the group to use its platform on YouTube to recruit members and plan and carry out terrorist attacks.

00:22:42

The court had originally accepted the case to address the scope of section 230 of the Communications Decency Act, which gives social media companies broad immunity from lawsuits for content appearing on their sites. But the court never reached that issue. Instead, it returned the case to the lower courts after finding that the civil complaint did not state a claim for aiding and abetting terrorism which is required under the federal Anti-Terrorism Act. But the companion case of Twitter, Inc v. Taamneh was far more significant.

00:23:28

There, the court unanimously held the tech giants Twitter, Facebook, and Google were not liable for allowing members of the Islamic State group to use their platforms. The case arose after a Jordanian citizen Nawras Alassaf and 38 others were killed in an attack at an Istanbul nightclub in 2017. Allasaf’s family claimed the social media companies aided and abetted the Islamic state group by helping it spread its message through computer algorithms that recommended content to users based on their viewing history. The court found that such alleged conduct did not amount to aiding and abetting terrorism under federal law. 

00:24:27 

There are billions of messages carried every day over social media. These last two cases are significant because had they gone the other way there’s no limit to the claims that could have been levied against Twitter, Facebook, Google, and scores of other sites on the theory that those platforms aided and abetted users who posted content on those sites that caused injuries to the claimants or may have inspired others to do so. Inevitably, the litigation will continue in this complicated area that pits the First Amendment against harms that are attributed to online speech. 

00:25:36

Finally, in a case tangentially related to the internet entitled 303 Creative LLC v. Elenis, the court in a 6-to-3 opinion ruled that the First Amendment prohibited Colorado from compelling Lori Smith to design a wedding website for same-sex marriages when she did not personally endorse such marriages.

00:26:38

In reaching their conclusion, the court agreed that Smith’s custom-made websites involved expressive conduct and were thereby protected by the First Amendment. As a result of its holding, the court limited Colorado’s public accommodation law that prohibits businesses open to the public from discriminating against people on various grounds including gender. All of the conservative justices joined Justice Neal Gorsuch’s opinion in this case. 

00:27:14

Justice Sonya Sotomayor wrote a spirited dissent on behalf of the three liberal justices, arguing that the law served a compelling state interest by prohibiting businesses from engaging in discrimination when offering their services to the public. In support of her dissent, Justice Sotomayor cited several prior rulings that had rejected a First Amendment defense in similar situations. In light of this new decision we need to ask how far the conservative majority will go in the name of protecting free speech to excuse businesses from generally applicable anti-discrimination laws so long as they claim their products or services constitute custom made expression. And beyond same sex-couples, will this new doctrine allow discrimination on the basis of other grounds such as race, religion, ethnicity, or national origin.

00:28:19

Commentators have already begun asking whether 303 Creative will apply to other types of businesses that may be characterized as expressive such as clothing designers, florists, architects, or tombstone makers. Many have called the internet a brave new world. Many see it as ushering in a new technological era in which all people have a platform to exercise their freedom of speech to the fullest extent known to mankind. 

00:29:07

But with the proliferation of misinformation, personal attacks, hate speech, and conspiracies of all sorts, including schemes to plan insurrections and undermine our elections, online speech doesn’t look like the nirvana many hoped it would be. How will the First Amendment ratified 233 years ago cope with all this? As we’ve seen, these are some of the toughest issues the Supreme Court faces pitting important societal interests against each other. 

00:29:50

The answer is that our system will confront future conflicts over freedom of speech and freedom of the press the way it always has, in fits and starts, advancing and retreating depending on who is writing the laws, who is challenging them, and who on the Supreme Court is deciding whether they measure up to the first amendment. 

00:30:34

In 1919, Justice Oliver Wendall Holmes Junior wrote the following words, I think they are apt in our modern world, “the ultimate good desired is better reached by free trade in ideas that the best test of truth is the power of the thought to get itself accepted in the competition of the market and that truth is the only ground upon which their wishes safely can be carried. That at any rate is the theory of our Constitution. It is an experiment as all life is an experiment.” 

00:31:20

I hope you’ve enjoyed these episodes of Speaking Freely: a First Amendment Podcast. Let us know if you have any questions or what future First Amendment topics you would like us to cover by going to the Ms. Magazine landing page. I want to thank you for listening to this podcast and I want to especially thank my producer Allison Whelan. I’m your host Stephen Rohde.