On June 26, 1997, the U.S. Supreme Court unanimously decided that controversial portions of the Communications Decency Act of 1996, which criminalized obscene or indecent web content that could be viewed by minors—were unconstitutional. The bill was Congress’ attempt to regulate the world wide web like it did television and radio. But as the internet expanded and evolved, as chat rooms morphed into social media and private forums into mega-platforms, the debate—sparked by the Court’s decision of what behavior is acceptable online and who should govern it—evolved right along with it.
The now-retired Justice John Paul Stevens wrote in the Court’s majority opinion that freedom of expression outweighs preemptive censorship:
The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.
Justices Antonin Scalia, Ruth Bader Ginsberg, David Souter and Clarence Thomas cosigned the opinion for what became known as the Magna Carta of the internet.
The best defense seems to be content moderation, but it is flawed and comes at a human cost. There are also new digital filtering tools aimed at reducing harassing messages and images. But online harassment and stalking cases rarely bring criminal charges, even when there are violent physical threats. Social media companies struggle with making consistent judgement calls on when nudity constitutes art as opposed to pornography or harassment, and what graphic videos are newsworthy instead of just grotesque. They often get it wrong.
The Supreme Court ruled in Elonis v. United States that defendant Anthony Elonis’ Facebook posts, which discussed kidnapping and murdering his estranged wife, were reckless but didn’t create a sense of imminent physical harm as required under the First Amendment’s true threat doctrine. The Court declined to “address whether a mental state of recklessness would also suffice,” according to the opinion.
As evidenced by the Reno and Elonis decisions, courts tend to err on the side of protecting speech, however vile, for fear of future censorship. It’s a tendency that has divided civil liberties advocates around the issue of revenge porn, or the unauthorized posting of nude photos, which combines traditional notions of obscenity, privacy violations, and the strong desire to protect such content as free speech. Privacy advocates have pushed for criminal laws in 38 states and Washington, D.C. But others, such as the American Civil Liberties Union, have argued that those same laws infringe on individuals’ First Amendment protections.
Speech is seldom criminalized. But in the 20 years since the Magna Carta decision, more questions have been raised about how much protection certain kinds of speech deserves. There have been uneven applications, with law enforcement agencies often being slow to investigate online harassment but have swiftly gone after political dissenters. Doxxing—the act of intentionally exposing someone’s address or location without consent—has also raised awareness of digital privacy and safety issues but hasn’t risen to the Supreme Court. Apple’s rebuke of the FBI’s request to make a digital tool to break into the iPhone belonging to one of the San Bernardino shooters gave new life to old case law that code is a form of speech and deserves protection.
Twenty years ago, the Court recognized that obscene content exists and can be banned since it lacks First Amendment protections. But in 2017 there still isn’t a consensus — or better yet, any satisfactory solution — to the behavior and images encountered online everyday.
The risks of privacy and censorship are issues that, for now, remain largely in the hands of private tech companies rather than courts. As the ACLU’s senior national staff counsel Chris Hansen, who led the 1997 Magna Carta suit, said in a recent interview, the attempts by tech giants to regulate speech could lead to a form of legal censorship:
I think the greater censorship dangers today involve attempts by nongovernmental entities — such as Facebook, Twitter, Google, and other internet companies — to decide what speech is appropriate online, and those efforts largely are directed at hate speech. Facebook and other internet companies aren’t bound by the First Amendment, which only applies to the government. As the government increasingly pressures companies to remove online content, we’re creating a censorship system that applies to an enormous amount of communications that don’t enjoy constitutional protections.
As public and governmental pressure for companies to increase moderation and takedown efforts mounts, there will likely be more and more cases that challenge speech protections online. It’s only a matter of time before Magna Carta 2.0 reaches the Supreme Court.