Censorship by the government is prevented by the First Amendment to the Constitution, which grants an unrestricted right to free speech to the American people.
That right has been under attack ever since the Bill of Rights was first approved.
The most usual contention of Free Speech opponents has been the idea that free speech doesn’t protect pornography, religious dissent, or the advocacy of unpopular positions, but the courts have been consistent in their support for the right to free speech, but the defense of free speech has been far from absolute.
In what may have been his most famous opinion, in Schenck vs. United States, the redoubtable Oliver Wendell Holmes held that the First Amendment does not protect speech encouraging insubordination. In this opinion, Holmes created the “clear and present danger” doctrine which makes the putatively objective right to free speech a matter of subjective opinion.
Free speech means what it says: “Congress shall make no law….or abridging the freedom of speech or of the press…..”
The Holmes decision clearly abrogates this Constitutional Right by making the subjective determination of whether a particular statement violates the free speech provision of the Constitution by imposing a values test upon the quality of the speech in question.
Schenck was the Secretary of the Socialist Party of America, and he was convicted of violating the Espionage Act of 1917 by distributing leaflets that advocated opposition to the draft that was imposed during World War I, in what was surely one of the most egregious miscarriages of justice in American history.
The Espionage act of 1917 made it a crime to obtain or deliver information relating to national defense to a person who was not entitled to have it.
Despite numerous emendations over the years, the Espionage Act still remains in force. The most recent application of the Espionage Act was implied in the assassination of Al-Alwaki, whose speech was labeled as seditious by the U.S. Government without the benefit of a hearing on the matter.
The real point of this discourse is that the application of the Espionage Act itself with respect to free speech issues is rather cumbersome. Today, speech is actually much freer than it was in 1917….and that is precisely the issue that the Republican party is attempting to address by making internet services such as Facebook and Twitter responsible for the content they carry.
If memory serves, this was attempted a few years ago when the Republican party attempted to make internet service providers responsible for the content transmitted through their networks.
Having failed with that initiatives, the Republicans are now attacking the two websites that have been most directly responsible for the incredible developments in the Muslim world that we now incorrectly call The Arab Spring, and for the growing phenomenon of the Occupy Wall Street and its offshoots.
The newly proposed legislation would effectively cripple free speech in the United States because it would make website owners of sites like Twitter, Facebook - and Open Salon – responsible for the content created by their members.
The utter impossibility of even attempting to monitor the information published on Twitter, Facebook, or any of the collaborative websites – let alone actually interdicting questionable material - would require, first of all, the establishment of guidelines to determine what is permissible and what is not permissible communications.
Since there have never been any clear guidelines proposed or established for what constitutes permissible speech, it would be impossible to impose any standards that would not violate the Free Speech provision of the Constitution….but those provisions only affect government agencies.
Private parties have an absolute right to infringe upon the free speech of others depending on the circumstances of the speech. You may not engage in free speech on private property without the leave of the property owner. You may not engage in free speech over the public airwaves if the owner of the television of radio station doesn’t approve what you are saying.
By analogy, Twitter and Facebook occupy a position analogous to the telephone companies, who have never been held responsible for the speech that passes through their networks and could never be held responsible for such speech because it occurs in real time during innumerable simultaneous conversations.
A false analogy has been made in some places between the Twitters and Facebooks of the internet and publishing enterprises such as newspapers and magazines. This is a false analogy because Twitter and Facebook take place in real time. Sites like You Tube are more analogous to publishing enterprises because the submissions posted on YouTube are not essentially parts of ongoing conversations as the postings on Twitter and Facebook are.
With a liberal court, a move to make internet websites responsible for the content posted by their members would be thrown out by the Justices because it would be an obvious and blatant attempt to impose restrictions on the rights to free speech.
There’s little doubt that this measure will pass the House, but there’s much less certainty that would pass the Senate and not a chance in hell that the incumbent president would sign it.
But that’s today. Two years from now, with a different Congress and a different president, that might not be the case and, with the present constitution of the Supreme Court, one might doubt that they Justices would decide in favor of free speech.
It therefore becomes incumbent upon those who think that voting Republican is a responsible approach to address our economic ills might think twice about sacrificing the very real and fragile freedom of speech in order to achieve a very questionable change in economic policy for the nation.
A word to the wise is sufficient. Fools never listen.
Which are you?