Running head: INTERNET CENSORSHIP & THE FIRST AMENDMENT 1

Internet Censorship & the First Amendment

Bailey Timmers

University of Indianapolis

INTERNET CENSORSHIP & THE FIRST AMENDMENT 2

The First Amendment in United States Constitution states 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” (U.S. Constitution). These freedoms, although protected

by law, are not absolute. In an article published in the Journal of Law,

Technology & the Internet, author Sana Ahmeda points out that tension

surrounding governmental censorship as it relates to free expression did not arise

as a result of the internet, but has existed since the Constitution first declared a

right to free speech (2013, p. 514-515). It is also noted that, “At times,

governments must limit free speech to ensure public order, but a fine line

separates using these restrictions to protect freedom from using them to

maintain security” (Ahmeda, 2013, p. 515). Before examining how the First

Amendment has impacted internet access in the past and the role it plays in the

world today, it is crucial to understand what censorship means in terms of the

law. According to the Communication and the Law textbook, censorship is

defined as the halting of expression at its source by the government; it is also

referred to as prior restraint (Hopkins, 2015, p. 412). This occurs when the

government agrees to restrict certain publications from ever occurring, rather

than punish the publisher by criminal or civil law for what has already been

published. This form of censorship includes, but is not limited to, the restriction of

spoken words, print materials, art, television and internet access in an effort to
INTERNET CENSORSHIP & THE FIRST AMENDMENT 3

reduce freedom of thought and expression. Traditionally, subsequent

punishment, which allows an entity to publish without censoring while facing

potential consequences allowable by law, has been favored by authority. Prior

restraint imposes a much greater threat to civil liberties than subsequent

punishment, such as injunctions, temporary restraining orders and cease and

desist orders.

Research and publications regarding internet censorship often reference

the First Amendment before exploring any other factors or potential arguments.

When the United States adopted the First Amendment in 1791, it “embraced the

technology of the printing press as an essential component of its political

system” (Patrick & Scharphorn, 2015, p. 105). With the rise of the printing press

came a new form of communication that allowed individuals to express their

opinions and form alliances with others in a way unlike ever before. Similar to the

printing press, the internet also transformed communication in a major way

(Patrick & Scharphorn, 2015, p. 105). Despite the gap in time between the

release of the printing press and the arrival of the internet, there are

comparable themes that relate them to one another, such as the First

Amendment.

According to Jerome Barron, Professor of Law at the George Washington

University Law School, "a realistic view of the First Amendment requires

recognition that a right of expression is somewhat thin if it can be exercised only

at the sufferance of the managers of mass communications" (Patrick &

INTERNET CENSORSHIP & THE FIRST AMENDMENT 4

Scharphorn, 2015, p. 106). This means that regardless of First Amendment

protections, expression is not as free as one may assume. Due to the costs and

logistics of reaching the masses when the printing press initially gained success,

its outreach was limited to those who were in a financially stable enough

position to own one. Freedom of the press introduced the right to express

opinions in printed publications without censorship by the government, but as

law professor and civil right advocate, Zechariah Chafee stated in his book,

Government and Mass Communications, "the freedom of the press was created

at a time when the press was a means of individual expression, comment, and

criticism" (Patrick & Scharphorn, 2015, p. 105-6). This brings attention to the fact

that the First Amendment was put into law before the government, or anyone

for that matter, could grasp how quickly technology would advance and how

widespread it would become. Even more avenues were created for individuals

to communicate and express themselves when the internet was introduced due

to the fact that anyone with access to a Wi-Fi connection was, and still is, able

to publicly consume and share information with a large audience. "The Supreme

Court recognized that the internet provides a relatively unlimited, low-cost

capacity for communication of all kinds," making it the first device of its kind to

reach the masses in an abundant way (Patrick & Scharphorn, 2015, p. 107).

There are commonalities between these two forms of communication and the

effect censorship has on them, but the impact said censorship has on the

internet and its user accessibility is the central concentration of this paper. The
INTERNET CENSORSHIP & THE FIRST AMENDMENT 5

following research challenges internet censorship enforced by law, as it is a

violation of the basic human rights protected under the First Amendment and a

direct contributor to the suppression of the marketplace of ideas.

The First Amendment was thought to be a simple, easy to follow, list of

commands stated in the Constitution that safeguarded the liberties of the

public, but with the steady advancements being made on the internet and

more specifically, in electronic media, it is becoming increasingly difficult to

apply such instruction effectively. There are also a multitude of opinions

concerning the ideal solution to this growing issue, making it difficult to come to

an adequate compromise amongst all parties. One perspective states that,

“The protection of a healthy speech environment in our times demands a

rethinking of what it means to protect the channels of political speech in the

internet age” (Wu, 2018, p. 549-550). Wu, a lawyer and professor at Columbia

Law School, expands on censorship as it applies to private speech platforms to

further explain this idea (2018, p. 550). It is imperative that the "norms, ethics and

practices of the private speech platforms" are not dismissed, despite the

governmental protection that is being sought after as a result of corrupt online

behavior (Wu, 2018, p. 550). Private speech platforms are continuously growing

in popularity and "the major and minor internet platforms by which the public's

attention is actually reached have proved vulnerable to manipulation, distortion

and corruption by malicious actors and those acting in bad faith" (Wu, 2018, p.

550). These internet platforms should be expected to take responsibility for the
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negative consequences of censorship negligence, adopt stricter guidelines and

make necessary changes to not only better serve users, but preserve their safety

(Wu, 2018, p. 550). Whether it be Russian manipulation on Facebook during the

previous presidential election, the deceptive "deployment of propaganda bots,"

or any of the other negative repercussions behind a lack of online

monetarization, the demand for refinement of the standards is clear and lawful

(Wu, 2018, p. 550). From a legal standpoint, Wu not only acknowledges the role

of those who should be enforcing the laws that are intended to uphold the First

Amendment, but their duty to defend the principal channels of online speech

from harm, whether by deception, harassment, fraud or any other form of

obstruction (Wu, 2018, p. 550). Since the civil rights era, the Supreme Court has

recognized that "law enforcement has a duty to protect speakers from private

efforts to silence them" (Wu, 2018, p. 550). Online private speech platforms

should fall under the above-mentioned category of private efforts. If subscribed

to this perspective, the problem stems from a lack of internet censorship and a

successful resolution will only transpire if both the government and privately

operated digital platforms update their policies accordingly.

Scholars by the names of David Schwartz, Inbal Yahav and Gahl

Silverman offer a perspective focused on a different form of suppression on the

internet; the censorship of the comment sections on online news articles

(Schwartz, Yahav & Silverman, 2017, p. 569). It was discovered in a Pew

Research study on internet users in the United States that "more than 60% of
INTERNET CENSORSHIP & THE FIRST AMENDMENT 7

Americans are consumers of online news articles, and a full 25% of internet users

have posted a comment to an online news article" (Schwartz, Yahav &

Silverman, 2017, p. 569). This is an incredible amount online activity that is often

times overlooked or not appropriately considered. More interestingly, this article

seeks out information that organizations, "be it governmental, military,

commercial or judicial," strategically choose to not make public (Schwartz,

Yahav & Silverman, 2017, p. 569). Taking the initiative to censor the content in a

press release or the comments on an online article derives from the need to

withhold information from a variety of stakeholders, "including competitors,

suppliers, customers, government authorities or hostile individuals and groups"

(Schwartz, Yahav & Silverman, 2017, p. 569). This type of censorship is accepted

and therefore commonly forgotten about when considering the overall control

electronic media has on the public. This leaves room for news outlets to

construct false realities and consistently publish carefully written stories that

attract the intended positive feedback from all audiences, while deleting any

responses that offer criticism.

As briefly mentioned above, internet content regulation has fallen into the

laps of private companies greatly in recent years (Adler, 2011, p. 233). The

Communications Decency Act of 1996 states that, “No provider or user of an

interactive computer service shall be treated as the publisher or speaker of any

information provided by another information content provider" (Section 230 of

the Communications Decency Act). Zeran v. America Online, a 1997 court

INTERNET CENSORSHIP & THE FIRST AMENDMENT 8

case, is a prime example of this Act in action (Hudson). This case began when

“an unknown individual posted on an America Online (AOL) bulletin board an

advertisement for ‘Naughty Oklahoma T-Shirts,’ which contained tasteless,

offensive slogans related to the April 19, 1995, bombing of the Alfred P. Murrah

Federal Building in Oklahoma City” (Hudson). Also listed was the telephone

number of Ken Zeran who, despite being uninvolved with the shirts, was

harassed and threatened (Hudson). To combat this, Zeran “requested that AOL

remove the message and issue a retraction. AOL eventually removed the

offending message but did not issue a retraction. Zeran then sued AOL in

federal court” (Hudson). In accordance with Section 230 of the

Communications Decency Act, the federal district court dismissed the case

because AOL was not legally responsible for the defaming content (Hudson).

Unfortunately, this has not minimized the political and societal pressures

placed on public or private actors that motivates engagement in unwarranted

censorship (Adler, 2011, p. 233). According to Adler, “In a democratic society, in

which progress depends upon the free exchange of ideas, providing citizens

with a strong arsenal of digital rights protects them from the suppression of

content in internet spaces” (2011, p. 233). The United States has historically

branded itself as a nation that supports and promotes all freedoms of

expressions documented under the First Amendment, but the rapid growth of

the internet caused the rights of internet users to become neglected rather than

in a constant state of progression alongside the technological movement.

INTERNET CENSORSHIP & THE FIRST AMENDMENT 9

Jennifer Pan, a professor at Stanford University, argues that the government has

historically gone to great lengths to regulate traditional media and has been

successful in its efforts (2017, p. 93). The same cannot be said for the

government’s ability to control the internet, especially social media platforms

“because every individual can act as a broadcaster,” making the generation of

content too overwhelming to monitor (Pan, 2017, p. 93).

Disagreeable content on the internet in public locations such as schools

and libraries has often been the target of governmental restrictions (Kreimer,

2006, p. 22). For many years, “Congress has successfully required schools and

libraries to install filtering software on their computers to bar users’ access to

material that is obscene as to minors, through constitutionally protected as to

adults” (Kreimer, 2006, p. 22). In the 1997 Supreme Court case, Reno v. American

Civil Liberties Union, the Communications Decency Act provisions intended to

protect minors from disturbing or mature materials on the internet were declared

as an unconstitutional restriction on free expression (Keiser, 1998, p. 769). Despite

the increase in online safety, especially amongst minors, that would occur if

certain censorship policies were put in place, the fear of over censorship and

the negative implications that may arise as a result of this suppression have

caused public and private entities to vote against it in court.

Directly following the Reno v. American Civil Liberties Union case, the

Child Online Protection Act (COPA) criminalized the distribution of material that

could be considered harmful to minors on the internet (American Civil Liberties

INTERNET CENSORSHIP & THE FIRST AMENDMENT 10

Union v. Mukasey, 2014). This bill, enacted in 1998, required websites with

material “harmful to minors” have a method of verification to ensure viewers

were of age, provoking the American Civil Liberties Union v. Mukasey court case

(American Civil Liberties Union v. Mukasey, 2014). The American Booksellers

Foundation for Free Expression joined forces with the American Civil Liberties

Union (ACLU) and numerous bookstores in “filing a legal challenge in the U.S.

District Court of Pennsylvania, arguing that COPA burdens speech that is

constitutionally protected for adults, violates the First Amendment rights of

minors and is unconstitutionally vague” (American Civil Liberties Union v.

Mukasey, 2014). The next six years were spent in court and finally on June 29,

2004, “the Supreme Court ruled in a 5-4 vote that the COPA is overbroad and it

was not the least restrictive means to prevent minors from accessing material

harmful to minors” (American Civil Liberties Union v. Mukasey, 2014).

Prior restraint, as previously mentioned, is a form of censorship in which the

government restricts publications from existing in any medium. The government

sought such restraint in the court case, United States v. Carmichael (Self &

Hickson, 2006). In November of 2003, Leon Carmichael was arrested and

charged for “conspiracy to possess marijuana with the intent to distribute” and

“conspiracy to commit money laundering” (Self & Hickson, 2006, p. 4). Just one

month later, in December of 2003, Carmichael published a website in which he

publicly asked for any information regarding the informants and Drug

Enforcement Agency agents involved in his case (Self & Hickson, 2006, p. 4). The
INTERNET CENSORSHIP & THE FIRST AMENDMENT 11

government requested the court order Carmichael to remove the website from

the internet, claiming it was created to threaten and intimidate those

mentioned, but “The website was not alleged to contain any obscenity, false

advertising, offers of illegal products, offers to hire assailants, terrorist information,

or any of the usual prior restraint legal issues” (Self & Hickson, 2006, p. 3). After

much conflict and deliberation, the court did not demand the site be taken

down (Self & Hickson, 2006, p. 8).

The conversation around internet censorship has become even more

prevalent since the dawn of social media. The court case, Packingham v. North

Carolina, addresses social media restrictions in a very controversial way. The

case began in 2002 when a 21-year-old college student, Lester Packingham,

was convicted of taking “indecent liberties” with a minor in North Carolina

(Packingham v. North Carolina). After serving his sentence, Packingham was

released and attempted to carry on with his life, which included the use of

social media platforms such as Facebook (Packingham v. North Carolina). In

2010, authorities discovered his profile and he was immediately arrested again

due to North Carolina’s laws prohibiting registered sex offenders use of social

media (Packingham v. North Carolina). Packingham claimed the law was a

direct violation of his First Amendment rights, but The North Carolina Supreme

Court “held that the law was constitutional by finding that the law was a

‘limitation on conduct’ and not a restriction of free speech” (Packingham v.

North Carolina). Regardless of the crime, it is important to consider the power of

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the government to restrict internet access in a court of law and what that could

mean for the future of censorship. Tibor Machan from Chapman University

expands on this idea by stating, “The beginning of the corruption of the proper

role of government is the transformation of a system of private property rights

into a system of public ownership of valued resources” in his journal article

discussing censorship (2018, p. 9).

Inconsistent court rulings and unclear public and private policies

regarding the government’s ability to censor the internet has allowed for the

violation of the liberties protected under the First Amendment in the U.S.

Constitution. Although this problem existed in mediums before the internet,

“Unlike other new media, the internet presented courts with immediate First

Amendment problems” (Corn-Revere, 2002). There is a conversation to be had

about the safety governmental censorship can provide, but not at the expense

of the public’s ability to receive and disseminate information online. “The

Supreme Court expressly distinguished the internet from other technologies,” but

is ambiguous in its stance on government restriction related to the medium. In

the words of Tibor Machan, “censorship cannot be identified with editorial or

publishing judgement because censorship is what a government imposes,

forcibly, at the point of a gun” (2018, p. 7). Free expression is a basic human right

that is being stifled through online censorship enforced by law.

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References

Adler, J. (2011). The public’s burden in a digital age: Pressures on intermediaries

and the privatization of internet censorship. Journal of Law & Policy, 20(1), 231–

265. Retrieved from

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Ahmeda, S. (2013). Censorship and surveillance in the global information age:

Are telecommunications companies agents of suppression or revolution?

Journal of Law, Technology & the Internet, 4(2), 503–530. Retrieved from

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b=a9h&AN=119250068&site=ehost-live

American Civil Liberties Union V. Mukasey. 2014. The Media Coalition. Retrieved

from http://mediacoalition.org/aclu-v-mukasey/

Corn-Revere, R. (2002). Internet and first amendment overview. Freedom Forum

Institute. Retrieved from https://www.freedomforuminstitute.org/first-

amendment-center/topics/freedom-of-speech-2/internet-first-

amendment/

Hopkins, W. W., (Ed). 2015. Communication and the law. Northport, AL: Vision

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Tennessee State University. Retrieved from https://www.mtsu.edu/first-

amendment/article/613/zeran-v-america-online-inc-4th-cir
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Keiser, D. M. (1998). Regulating the internet: A critique of reno v. ACLU. Albany

Law Review, 62(2), 769. Retrieved from

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Kreimer, S. F. (2006). Censorship by proxy: The first amendment, internet

intermediaries, and the problem of the weakest link. University of

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Machan, T. (2018). What is (and isn’t) censorship. Annals of Spiru Haret University,

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Packingham v. North Carolina. (n.d.). Oyez. Retrieved from

https://www.oyez.org/cases/2016/15-1194

Pan, J. (2017). How market dynamics of domestic and foreign social media firms

shape strategies of internet censorship. Problems of Post-Communism,

64(3/4), 167–188. https://doi.org/10.1080/10758216.2016.1181525

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Schwartz, D. G., Yahav, I., & Silverman, G. (2017). News censorship in online

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https://doi.org/10.1002/asi.23698

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U.S. Constitution, Amendment 1.

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