How technology changes our concept of “free speech”.

Image courtesy of
Flickr user jeshua.nace.

These days, the news is filled with reaction to the anti-Islamic video, leading to violence and tragedy on both sides. While I’m not here to discuss who is “right” or “wrong”, the concept of free speech becomes the center of discussion, at least here in the U.S. What isn’t dicussed as much is how technology and a highly connected world will truly alter our legal interpretation of what is or is not speech protected by the First Amendment.  A disclaimer: I’m no law student. I have no experience in interpreting Constitutional law. But I can totally fake it. Here goes.

As it is currently written and enforced, what is protected is a governmental movement (either by federal or state laws) to suppress the ability to freely express ourselves. For example, if Congress passed a law limiting the distribution of publications that criticize the government, or if your state passed a law to prevent demonstrations in public areas – these would be seen as violating First Amendment rights.  Sounds obvious, however, what isn’t protected is far more interesting. Here are a few examples:

  1. Suppression of free speech by private citizens: Many people think that if your home owners association votes to take action against you for blasting Whitesnake’s Greatest Hits on your loudspeaker 24 hours a day, your HOA is limiting your Constitutional right to express yourself. However, the First Amendment only prevents governmental agencies from passing laws suppressing such freedoms – and NOT the actions of private citizens. Your HOA would have a strong case against you if your sole argument was “freedom of speech” and that “Whitesnake rocks.”
  2. Causing panic: Dressing your relative like a terrorist wielding a fake rocket-propelled grenade launcher in the middle of a busy city intersection (like this guy) just to prove a point or to express an opinion of yours is a not protected by the First Amendment. The 1938 radio broadcast of H.G. Well’s “War of the Worlds” is also a perfect real-world example. People everywhere who listened to this fictional news broadcast thought the Earth was being attacked by Martians and that they too were also Communist.
  3. Incitement of a crime: If a band (most likely not Whitesnake) is known to elicit minors to do drugs and rob liquor stores, and wants to have a concert near a high school, some courts could take action against this if there was a threat that crimes would happen. This of course can be really difficult to prove unless there was a track record of this band inciting crimes.

This last two are most intriguing to me, especially now that we’re entering the age of near instant communication to anyone in the world. Our Constitution protects our free speech as much as the resultant violence or crime isn’t either probable or imminent. (These are pretty “squishy” terms in that it relies heavily on a “prudent person’s belief” that a crime is about to happen.)

For most of history, these factors have gone hand in hand with the concept of “proximity” since any other form of expression could only travel so far within a short period of time. However, now, with the ability to send inflammatory videos, pictures or text across the globe in seconds, the definition of proximity is drastically altered. Something crafted here in the U.S. is seen all over the world, igniting rage everywhere. Consequently videos of violence is broadcasted at nearly the same speed and frequency. Where now is our sense of proximity? What if you create a video about the health benefits of eating raw dandelions, post it on YouTube, only to find out a community in a small U.S. city considers dandelions sacred, revolts, and deaths ensue? Could you be protected by the First Amendment as it is defined now? Would we have to redefine what that means?

Ugh…my head hurts.

I may be missing many important nuances to these legal issues, and I’m sure there would be plenty of laywers and judges that can figure it out. However, I believe we’ve developed many technologies and platforms to broadcast our message to the world. I think we’ll see more efforts in developing tech that “listens”. Not just determining how many people “liked” or commented on our media – many vendors and software exist for companies to perform such analytics. I’m talking about our individual impact that our posts, pics, videos and updates have on the world, but more importantly, our own local community.

I highly doubt the world won’t change much with my post about how much I love grilled cheese with a tomato. But I do think we’ve had enough experimenting with our ability to output and are pretty good at it. Now we need to focus on making sense of the input.

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