How’s the First Amendment Doing in the U.S.? Recent Court Decisions Are Good News

Share |

I’ve commented frequently about the tendency of foreign governments to interfere with speech rights in pursuit of legitimate public policy objectives. Is there hate speech or terrorist material online?  Let’s require websites and social media platforms to purge it from their systems.  Is there outdated or irrelevant material online?  Let’s require search engines to delete links to this material.  Is there fake news?  Let’s require online websites to block it.  In each case, the law would go too far.  It would restrict far more speech than is necessary to achieve legitimate policy goals.


So, what’s happening here in United States?  How are we doing with protecting free speech?  It is hard to make a trend out of several cases – there’s always the possibility of selection bias.  But examining a few recent cases suggests the prospect of renewed vigor for the protection of speech and the critical values it preserves.


Start with an appeals court case from last year.  In 2015, Louisiana passed a statute requiring websites to age-verify every Internet user before providing access to non-obscene material that could be deemed harmful to any minor. The law challenged free speech rights by placing severe burdens on booksellers and publishers. The law also violates the rights of older minors by depriving them of access to material published on the internet because it may be inappropriate for younger minors. As a practical matter, the law would force booksellers and publishers to restrict access of their customers and readers to what is acceptable for a 12-year-old.


But a lawsuit filed by the Media Coalition, a free speech defense organization whose members include AAP, MPAA, and RIIA, raised these First Amendment concerns and succeeded.  In April 2016, the U.S. District Court for the Middle District of Louisiana issued a temporary injunction, and in October 2016, the court signed an order permanently barring the state from enforcing the law.


Let’s look at a recent Supreme Court case. On June 19, 2017, the U.S. Supreme Court issued what one veteran free speech advocate described as “establishing a First Amendment framework for social media.” In Peckingham v. North Carolina, the court struck down a 2008 North Carolina statute that prohibited registered sex offenders from accessing social media sites.  The statute applies to about 20,000 people in North Carolina and the State has prosecuted over 1,000 people for violating it.


The court found the statute far broader than it needs to be to protect the public. The court might have looked favorably upon a narrow law that would “prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor.” But it rejected the broad North Carolina statute because it “bars access to what for many are the principal sources” of news and entertainment in the 21st Century without any need to do so.  


Aristotle remarked that one swallow does not make a spring. And so it might be with these court cases. But still it is good news that recent court decisions in the U.S. overturn attempts to achieve public policy objectives through overly broad restrictions on free speech rights. 

Mark Mark MacCarthy, Senior Vice President, Public Policy at SIIA, directs SIIA’s public policy initiatives in the areas of intellectual property enforcement, information privacy, cybersecurity, cloud computing and the promotion of educational technology. Follow Mark on Twitter at @Mark_MacCarthy.