Column | Balance between freedom, responsibility, isn’t easy on the internet
By Associate Professor Steve Hill, Professional Communication, UWSP, &
Professor Mark Tolstedt, Media Studies, UWSP
Lately, it seems we can’t throw an iPhone without hitting a ban on somebody’s social media accounts, whether it’s against Donald Trump or New York’s “QAnon meme queen.”
Those bans have sparked discussion of the meaning of the First Amendment, but it’s useful to remind ourselves that even if we have a solid, instinctive understanding of the amendment’s spirit, one principle remains inviolable.
We’re still subject to what the U.S. Supreme Court says it means.
That’s because the Constitution provides for the Supreme Court to be the “supreme law of the land.” No matter what we think the First means, the Supreme Court has the final say.
If we look at how the Supreme Court historically has interpreted the First Amendment, we see that this right of speech is not absolute. There have always been many “time, place, and manner” restrictions to our rights to freedom of speech. This is why we can’t yell “fire” in a crowded but fireless theater and some public venues are not open to speech for all.
Case law also tells us that as the internet evolved, it was originally regulated as a common carrier. That meant providers had to be content-neutral and could not censor or prohibit certain voices. As social media gained relevance and then dominance, Congress passed legislation in 1996 which impacted the common-carrier approach to regulating the internet while maintaining free speech. What is now known as “Section 230” (technically, 47 U.S. Code § 230 of the Communications Act of 1934, to which it was added) provides liability protections for private blocking and screening of material.
Section 230 has a complicated, changing history that is part of our long national history of supporting free speech and a free press. As faculty members in the University of Wisconsin System, the two of us are responsible, in part, for improving understanding of those issues.
We teach about the need for free-flowing information to help citizens maintain democracy, as well as the risks of completely unfettered speech. Finding the balance between freedom and responsibility has never been easy, but the U.S. has met the challenge remarkably well, both because of the wisdom inherent in this short, powerful amendment and a system that supports and enforces it:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
While this seems clear on its face, but there are obvious problem points. What is the meaning of “respecting,” of “abridging,” of “peaceably?” As we’ve seen, those can be difficult questions to answer.
But that’s why we have a Supreme Court. Although its makeup and operation have been points of contention, it has functioned remarkably well over the years, and we believe it will continue to do so with regard to free speech and a free press.