No Freedom of Speech Online

Online Censorship v. 1st Amendment Freedom of Speech

The issue regarding restriction on content by websites is whether the websites have the power to restrict people's "postings". "Postings" can be of various forms: opinions (comments), links (free movies, music), etc etc. In other words, how can websites such as facebook, myspace, squidoo, yahoo, and others restrict users from stating what they want to say. I thought we were living in a free country here, The United States Of America, where freedom of speech, expression, right to assembly are guaranteed under the Constitution as our "Fundamental" rights, that no one or government body can deny? So, shouldn't the First Amendment Right to Free Speech extend to the Internet as well?

The answer to the above issue requires a discussion of the U.S. Constitution's application in general, and it's application to the internet. Because Internet Law (Cyber Law) is a very convoluted (grey) area, and the rules and regulations are still being drafted and revised and re-revised, I will limit the application of the Constitutional Rights to the Internet in a basic "bare-bone" discussion, without any refernce to specific State or Federal Laws that would otherwise provide an exception to the application of Constitutional Rules to the ever evolving area of Internet Law.

Note: Private Citizen/Private Person = Humans, Companies, Entities

I.  General Application of The Constitution of United States

A. Application To Government Conduct

Generally, the U.S. Constituion only applies to the government. In other words, if there is a government conduct (eg. police brutality) that infringes on a private person's Constitutional rights, then the Constitution can be used as a defense or weapon to argue against the government for any violation of such rights.

B. Application To Private Conduct

On the other hand, if a private citizen (e.g. AL) does something that infringes on another private citizen's (e.g.BOB) Constitutional right (e.g. right to free speech: the right to write whatever BOB wishes on AL's newspaper), BOB cannot use the Constitution to sue AL and argue that the AL violated BOB's Constitutional Right to Free Speech, because AL's conduct was not a governmental conduct.

However, States and Federal Government can offer more protection (through laws) to its citizens using the Constitution as an underlying foundation, but those protections cannot be something that would be Unconstitutional. For example, there is no metion in the Constitution that "age" discrimination by a private person will be illegal. But Congress has enacted Federal laws which allows a private citizen to sue another private citizen if there was discrimination based on "age". Therefore, the enactment of statutes (laws) allows protection for private citizens from their rights being infringed by another private person. In other words, if the government (Federal and States) did not make up laws which extend Constitutional rights, then a private citizen's violation of such rights could not have been actionable by another private citizen. Because of such laws, people can sue private citizens for violating rights which are Constitutionally guaranteed but was only enforceable against the government.

C. Summary of General Application of The Constitution

To summarize, the Constitution only applies to conduct by Government (State or Federal). But through various statutes (laws), violation of Constitutional Rights are now enforceable and actionable by private individual "AGAINST" private individuals. Thus, a private person can be held liable for infringing on another individual's right to free speech. Remember, that a "private person" can also mean a corporation or entity, and not only human beings.

II.  Constitution's Application To The Internet

The question then arises is, if there are laws that punishes a private citizen for violating another's Constitutional Right (in this article, any website telling us what we can and cannot post), then how is it possible that websites (social websites, business websites, or blogging websites) are still able to restrict people from posting whatever they wish on those websites?

By disallowing us to post whatever we wish on their websites (assuming we have acquired the right to post through paid subscription, free registration, and otherwise legal material), are they not violating of the various laws that grant users the right to express their opinions (i.e. The Right To Free Speech)?

To answer this question, we must ask if the Internet a Public Place or a Private Place? Because government regulation of censorship of speech is heavily determined by whether the speech occurs in a "public" or "private" place.

A. Public Place v. Non-Public Place

A "public place" is a place that has been traditionally held open for any kind of public speech, or gathering, such as a public park, or sidewalk. In these areas, a government law cannot restrict anyone's right to express themselves, unless the speech is "unprotected" (e.g. fighting words, obscenity, etc.) (for the purpose of this article, lets assume unprotected speech is not a factor).

When government enacts laws that infringes (restricts) someone's right to free speech in a "public" place, the law cannot regulate the speech based on it's content, i.e. the law cannot regulate "what" is being said (exceptions apply). For example, a law cannot say "it is against the law to say the word 'murder' in a public park"; because the law is trying to control "what" is being said at a place where people have always gathered to express their views, opinions, oppositions, protests, etc. Thus, a law that tries to censor "what" is being said in a "public" place will be generally held unconstitutional and will be overturned (exceptions apply).

On the other hand, goverment CAN make laws which regulate speech based on it's content in places which are not traditionally public forums, and are considered as "non-public place" such as courts, or government buildings. In these places, the government can regulate what can or cannot be said or demonstrated (certain criterias need to be met).

So, is the internet a private or public place?

B. Internet Is A Private Place and A Public Place

"I thought the internet was created by the C.I.A. or the U.S. Military in 1960s and so it must be U.S. Government owned, and therefore, it is a U.S.Government property, allowing the government to make laws to control what can be posted....right?".

To an extent!

According to Wikipedia, although, the internet was developed originally by the U.S. Government in the 1960s, it's main growth was possible through collaboration with various non-U.S. developers from Europe and England. However, the Internet is governed by a Private company called "ICANN" - Internet Corporation by Assigned Names and Numbers. Also, "the Internet has no governing bodyis" and the role of the U.S. Government is only in "approving changes to root-zone files that lies at the heart of the domain name system" (Source: Wikipedia, search term: internet). Basically, the U.S. Government's only control over the internet is regulation of domains and changes to them.

Because the Internet's growth is due to interliking between networks of various countries all over the world (hence the name World Wide Web), the internet is a public place.

However, it is also a private place in the sense that it is not controlled by the U.S. Government or any other government since all the inter-links between various networks of different countries are privately owned as well as government owned.

Ofcourse, we must not forget that the U.S. Government has enacted various laws to prevent web sites from distributing "illegal" content such as child pornography or violent content, or other laws such as copyright law and intellectual property law. Other countries also have similar laws which impose restriction and regulation on website companies from doing illegal business. But none of the countries can impose their laws regarding "freedom of speech" to a place which is a place for the whole WORLD!

Basically, each web company is a "private citizen". The U.S. Constitutional Rights have been extended to protection from unlawful conduct by private citizens as well, and not just to government conduct. But because the internet is a "WORLD WIDE WEB", i.e. a place for ALL the people of the world and not just those in U.S., the Constitutional protections and limitations do not apply to every website. The only laws that do govern websites are those companies which are based in the U.S., such as Yahoo, Google, etc. And even then, these websites can still censor the content that may be posted by their users.

C.  Contract Law Applies

Each website has their own "terms and conditions" or "privacy policy". These are contracts which are agreements between each website company and the users who "register" with the websites. Just browsing the websites does not obligate any user to agree to the terms and conditions of the websites visited (unless each website has policies that regulates or limits their own conduct, such as non-dissemination of users' information to third-party sites without the users' permission).

The result of agreeing with the "terms and conditions" of such websites is that the user gives away his or her right to protest should any dispute arise about why the website chose to censor or limit the content posted on their site. if the user posts something which, even if lawful, does not meet with the website company's "preferences" or "liking" or "taste" (but otherwise is in compliance with their policy), the websites can still remove the content should they choose to because the users agreed to their "terms and conditions".

For example, there is a webpage building site that allows its users to build webpages about any topic the users wish to write about.  However, in their "terms and conditions", the site states that it reserves the right to determine that a webpage is "spam", based on "human factor". In other words, they can choose to shutdown or lock a webpage should any of their corporate reviewers determine that the webpage is a junk, even if it does not contain any specific violations of their terms of services.

Ofcourse, they do have a right to remove and block pages which contain adult, or illegal material. But beyond that, any censoring is equivalent to "restriction on free speech". And such restrictions are very offensive, since I thought I had the right to express my opinions freely, especially if the website is offering the services of creating webpages to write your own thoughs, opinions, articles, and essentially inviting people to write and express their opinions only to have them censored out because of the websites' subjective determination of what is offensive or controversial.

Unfortunately, all websites can control postings by users' of their opinions and thoughts, because in order to post, you have to click the "I Accept To The Terms and Conditions"  button. Because the Constitution does not apply to the Internet, all our speech are governed by the "terms and conditions" of the various websites when we choose to use their site to post our opinion. As a result, we give away our right to post anything which might be generally controversial or politically sensitive (to name a few categories). We cannot write freely about terrorism, abortion, racism, sexual harassment, gay marriage, or any other heated topics without having to look out for what will be construed as offensive or against the website's terms of services.

Conclusion

The Internet is a private place.

It is a public place to the extent that "anyone" (government and private citizens) can create a website about anything they wish, and all websites are regulated by general laws such as copyright and intellectual property laws.

However, because the internet is not a place solely for the U.S. Government, it does not control "what" can be posted; the private website companies control what will be allowed according to their "terms and conditions" or "user policy".

Therefore, the internet is largely a private place  for private businesses, and thus, YOUR THOUGHTS AND OPINIONS CAN BE CENSORED!

THIS ARTICLE WAS NOT INTENDED TO GIVE NOR DOES IT GIVE ANY LEGAL ADVICE OR OPINIONS. THE ARTICLE CONTAINS OPINIONS OF THE AUTHOR, WHICH CAN BE REBUTTED OR DISAGREED WITH. THE ARTICLE IS ONLY INTENDED TO GENERATE DISCUSSION ABOUT THE TOPIC ABOVE WITHOUT PURPORTING TO GIVE ANY LEGAL ADVICE OR OPINIONS. ANY OPINIONS OR CONCLUSIONS, OTHER THAN THE AUTHOR'S OWN EDITORIAL, ARE PURELY COINCIDENTAL AND UNINTENTIONAL.