2020 is the challenging year that just won’t go away, however much we wish it would, as many current issues over First Amendment freedoms flop over into the new year.
In the broad realm of freedom of speech, there’s little doubt debate will continue in the new Congress around the tangential First Amendment controversy over legal protections for companies hosting content on the web — aka Section 230 of the 1996 Communications Decency Act.
The law largely removes liability from companies for user-posted content on their sites. While not directly a First Amendment issue, the fight does have major implications for users’ free speech on the web, as we know it today, as well for as social media companies’ rights.
President Donald J. Trump and conservatives claim the provision is being used to hide partisan discrimination by major technology companies against right-wing voices. Liberal critics say the law removes incentives for such online operations to seriously fight misinformation.
Advocates for keeping the law “as is” say that without it, social media companies would face a myriad of potential lawsuits and thus dramatically limit what users can freely post on sites like Facebook, Twitter, YouTube, WhatsApp and Instagram. No company will be able moderate the web’s current traffic, they say, estimated by multiple sources at 500,000 hours of user video uploaded to YouTube, 188 million emails and 18 million texts every minute.
Controversy will also continue surrounding the First Amendment’s two least-known freedoms — petition and assembly — as multiple state legislatures consider increasing criminal and civil penalties for demonstrators who block streets or sidewalks or simply participate in events where, at some point, a violent act occurs.
Critics of the proposals, many of which have been introduced over the past five years, say their real motives are the stifling of dissenting or minority views, though advocates claim the new provisions are rooted in legitimate law and order concerns about violence and property damages.
In the area of religious liberty, the U.S. Supreme Court is expected to rule this spring on Fulton v. City of Philadelphia, involving both the First Amendment’s free exercise and establishment clauses. In the case, a religious-backed foster care agency is challenging a city decision to cancel a contract because the agency refused to provide services to married same-sex couples, citing religious grounds.
There is no doubt that as COVID-19 pandemic restrictions on public gatherings continue into the new year, so will legal challenges rooted in the First Amendment’s protection of religious liberty.
There are some new First Amendment issues for 2021 as a result of the incoming Biden administration, though even here, many are tinged by actions or views from the Trump years.
A top concern for free-press advocates is the potential for the Supreme Court’s new conservative majority to review the 1963 New York Times v. Sullivan decision, which provided wide protection from defamation claims by government officials and other public figures if actual error was inadvertent or not caused by reckless disregard for the truth.
A longstanding target of press critics and Trump, the decision is rooted in the theory that such protection is needed to foster the widest possible debate on public issues. Trump and others claim the decision makes it virtually impossible for officials and public figures to successfully repair deliberate damage to their reputations and that it gives journalists free license to report so-called “fake news.”
Of concern for some is the potential return to Obama-era regulations reversed by Trump that were aimed at combatting sexual harassment on college campuses, which critics said stepped on free-speech protections, particularly where online comments were deemed to be “sexual in nature.”
The Supreme Court is expected to decide in January whether to hear an appeal of a decision by the U.S. Court of Appeals for the Third Circuit that public school authorities may not punish student speech made away from school grounds. Other circuits have made differing decisions.
Some First Amendment experts also are concerned the incoming administration may be open to reducing or eliminating the First Amendment protections for what some deem “hate speech” or speech demeaning to women or minority religious groups. At present, such speech generally is protected, with some arguing that in addition to a core right to voice one’s own views, it is necessary to hear such speech to effectively argue against it.
Free-press supporters are already calling on President-elect Joe Biden to actively repudiate the Trump claim that mainstream news media are the “enemy of the people,” with some calling for new legislation to aid financially ailing local news operations — seen by some as counterintuitive for a “free press” — along with an international-U.S. effort to support free-press principles and journalists globally.
Welcome to the First Amendment in 2021 — with its echoes of 2020’s year of pandemic, protest and presidential-political turmoil.
Violence isn’t protest
Assembling to protest is our right under the First Amendment — it’s how we talk to each other as a nation.
Sometimes politely. But often not. Occasionally at the top of our lungs. Frequently with brutally frank messages. And often in ways that spark counterprotests.
Just as the nation’s founders intended — and it is still a good thing we do.
What happened Wednesday when a mob stormed the U.S. Capitol was not a protest protected by the First Amendment. It was a criminal act. A stain upon the fabric of democracy.
Freedom of speech and press, as well as to assemble and to petition for change, provide the real means to speak to each other across the nation’s deepest divides. Those freedoms are the way we give voice to those who feel ignored by the powerful.
One aspect of those freedoms is to provide a kind of national safety valve for the normal frustrations built into democracy — where elections and legislative decisions by their very nature are a form of majority rule until the next election.
We have been doing a lot of talking lately. Mostly peaceably. But when mobs replace protest with chaos, it betrays the core principles on which the United States was founded and the role is has played for more than two centuries as a worldwide beacon of freedom and the rule of law. There is no First Amendment shield for violence, no matter the motive.
Yes, we are intently discussing and debating some of the most important challenges that the nation faces, from Black Lives Matter protests over racial bias and racial dignity, to COVID-19 demonstrations for and against pandemic health restrictions. Waiting in the wings are the demonstrations, marches and protests over ongoing issues such as abortion, gun laws and voting rights. The venues will range from the web to public meetings to city sidewalks and rural byways and, yes, the steps of the Capitol.
As differing as the subjects, points of view and mediums may be across 330 million citizens, there are some fundamental facts for all to acknowledge — and in the wake of Wednesday’s violence, reaffirm:
To be sure, there is no provision in the First Amendment’s 45 words for universal agreement or quick solutions to what ails the republic. The First Amendment is a constitutional starting point, not a finish line.
The very real tension of the First Amendment’s promise to produce positive change is this: Sometimes it doesn’t. The pace of change is often too slow for advocates and too fast for opponents. Perhaps that’s why assembly and petition lag behind the other First Amendment freedoms in public understanding. But as many as a third of our fellow citizens have trouble even naming one of the First Amendment freedoms (which also include religion, speech and press).
While we tend today to choose speech as the most important freedom among those five, petition was the keystone for many of our nation’s founders. Protecting the right to speak the truth as each of us sees it, they reasoned, would protect the other four freedoms in law and democracy in practice.
If we want our ideas to be heard, we must encourage the rights of our opponents to speak also. We must disavow those on the right and left who would demonize dissent, discourage debate or deny a platform for all to be heard. And we must resist resorting to violence when conversation lags or fails to produce the results we seek.
Our nation’s history shows us that when we talk to each other, and when we listen, we are making progress at solving problems, correcting wrongs and admittedly, often imperfectly, making better the lives of ourselves and our fellow citizens.
That applies whether we are gathering in the nation’s capital city over election results or in our hometowns where we are free to publicly express views on everyday matters like school policies or streets that need to be paved.
Those difficult conversations are worth having, despite the frustrations. Those contrary views are worth expressing, peaceably, no matter the tensions of the moment.
And those rights are worth preserving, no matter our divisions — and no matter the actions of a mob.