Current Free Speech Doctrine: Will It Work on the Internet?


The Internet offers a much greater potential for interactive communication between information senders and receivers than the more traditional methods of communication such as newspaper, radio and television. Freedom of speech ascertained by the constitution is not an absolute right. Depending on the medium through which information is delivered various degrees of the freedom to express one's self is protected. Internet communication may be analogous to either a specific existing communication medium or even several. Current free speech protection begins to dissipate as it is applied to the uncertain confines of the newly developed Cyberspace. The traditionalist approach to free speech protection is centered on core values and yields results that are basically neutral so that content allowed through one communication medium is permissible in all media.

Freedom of speech and of the press is a basic tenant of United States constitutional law. Perhaps concern for the English use of prior restraint (licensing of press) and seditious libel was the reason for including the first amendment in our bill of rights. When the first amendment became law the printed page was the most widely used non-verbal medium of speech. Speech, as we understand it, involves more than verbal communication. Speecht includes pictures, movies, radio, television and expressive conduct [Shelton v. Tucker, 364 US 479 (1960)]. As technology advanced and additional communication medium developed, speech was given various levels of first amendment protection depending on the medium through which the information was delivered.

Cyberspace is a network of computer systems permitting literally millions of people to communicate with one another on an hourly basis. Cyberspace may mirror other types of communication medium singularly or several at one time. Current free speech protection approaches break down when applied to Cyberspace since one may prohibit speech when delivered by one medium but permit identical speech delivered via a different medium. A core values approach protects identical speech regardless of the medium in which it is delivered. So it is a foundation for Cyberspace and promotes development of new technology. That, "Congress shall make no law..., or abridging the freedom of speech", suggests an absolute right to speak. Justice Black dissenting in Konigsberg felt that freedom of speech was absolute [Konigsberg v. State Bar of California, 366 US 36 (1961)]. Justice Harlan writing for the majority rejected an absolute right, noting that protected freedom of speech was less than an unlimited license to talk. When examining a restriction on speech the court will look for a compelling government interest to warrant the restraint on speech. Also the court will look to determine if the regulation accomplishes the governmental objective in the least restrictive way.

Some forms of speech are not protected by the first amendment. Fighting words, intended and likely to provoke a physical response breaching the peace may be prohibited [Chaplinsky v. New Hampshire, 315 US 568 (1942)]. Criminal statutes may punish speech advocating unlawful conduct. Under the Brandenburg test the state must prove that:
1) the speaker subjectively intended to incite unlawful actions,
2) that in their context the words spoken were likely to produce imminent lawless action, and
3) that the words used objectively encouraged incitement [Brandenburg v. Ohio, 395 US 444 (1969)].

Obscene speech/works are not given First amendment protection. Miller v California is the current test a court should apply in determining if speech is obscene [Miller v. California, 413 US 15 (1973)]. The test has three parts:
1) whether an average person applying contemporary community standards would find the work taken as a whole appeals to prurient interests,
2) whether the work depicts or describes in a patently offensive way sexual conduct specifically defined by applicable state law, and
3) whether the work taken as a whole, lacks serious literary, artistic, political or scientific value. The first two parts of the test apply based on standards of the local community so that what is obscene may vary with the locality. The third part is based on a reasonable person standard and is not based on local community standards. For a work to be found obscene all three portions of the test must be found.

Indecent speech does receive first amendment protection. However in the context of broadcast radio and television courts have upheld FCC regulation of "adult speech". In Sable v FCC the court invalidated a law prohibiting indecent Dial-a-Porn phone messages which were not obscene [Sable