Legal Obligation of Private Media Companies
The confluence of American courts and American media companies’ rulings and stances on free speech issues, especially in relation to speech that has the potential to incite or promote extreme views, may on the surface seem to be impossible as the two appear to operate insularly. The courts can only enforce the constitutional provisions, protections, and limitations of the First Amendment as each new case is brought before it. It is the media corporations that are truly on the front lines of censorship issues as they have the express power of being able to choose to censor or legitimize the publication of the actual content on its site. The policies formed by these media companies are heavily reliant on the doctrines and precedents set forth by the First Amendment, but it is a subjective nightmare for companies analyzing individual or collective content to determine whether it meets or fails to meet proper use standards. So, the importance of the First Amendment here lies not so much in its direct regulatory power over digital content but the provisions and protections that evolve through precedents set in court cases that go on to direct and inform the policies established and implemented by media companies like Twitter and YouTube.
First Amendment Implications for Online Regulation of Terrorist Speech
The precedent for the government’s restriction of seditious speech was set under the Supreme Court case Brandenburg v. Ohio in 1969, a precedent that for all its ignorance in relation to modern digital communication platforms, is still used in first amendment litigation today. The Brandenburg precedent states that the U.S. cannot constitutionally punish or prosecute the advocacy of, as an “abstract principle”, the overthrow of the government or censor speech that does not directly incite violence or advocate for imminent lawless action. The court must also examine the speech to determine its degree of likelihood to “incite or produce such action”. The facts of the case detail the direct dealings of a homegrown extremist group, the Ku Klux Klan, and the role the government took in trying to restrict the group’s activity by criminalizing speech it deemed to be in violation of an Ohio criminal syndicalism law. The conviction of Klan leader Clarence Brandenburg was ultimately overturned on the grounds that the Ohio criminal syndicalism law violated his right to free speech provided by the First and Fourteenth Amendments by being overly broad. The incitement to imminent lawless action test was established, and thus were the utterances of an extremist, terrorist group protected under the United States constitution as a legitimate exercise of their right to free speech. The balance between First Amendment rights and the protection of national security has become ever more complex and is a matter the courts have only just recently begun to address.
To understand what implications the First Amendment has for the regulation of terrorist speech it is necessary to turn to the original text. The Constitution dictates through the First Amendment that “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”. One amendment, five basic rights, with free speech often cited as the corner stone of American democracy. Without freedom of speech or of the press there would be no room for the media to act as a watchdog of the government nor would any criticism of the government or a public figure be tolerated. The right to free expression is not guaranteed in all countries around the world and, despite this, many young Americans fail to appreciate and understand exactly what free expression for all truly looks like. Freedom of speech does not apply only to speech people may agree with or support - the First Amendment extends to all groups and ideologies, as long as those groups and ideologies do not intend to stage immediate violent action against any other individuals, factions of society, or the government. Distinctions must be made between beliefs, speech, advocacy, and actions, especially when it comes to the law.
