Freedom of Speech in the Digital Age?

Let’s read the entire passage: “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.”  – First Amendment to the U.S. Constitution

The First Amendment to the Constitution, especially in the digital age, is often cited inappropriately.  When a blog writer removes a comment, many a troll has squealed that his First Amendment rights are being violated.  When someone says something wildly stupid in public and reaps a storm of criticism, she, too, may scream about “freedom of speech.”  

All of us do indeed have freedom of speech, but that only means that the government cannot muzzle us.  It does not mean that a web site that accepts comments is obligated to let anyone say anything they wish. And it does not mean that there are no consequences to exercising your rights.  Donald Sterling, the putative owner of the L.A. Clippers basketball team, had every right in the world to give voice to his racist thoughts.  Everyone else had the right to call him a racist dirtbag and demand that the NBA encourage him to sell the team.  But, there are always consequences. 

Another alleged dirtbag tried to use the First Amendment to beat a cyberstalking charge. After a breakup with his girlfriend, Shawn Sayer began a campaign of harassment.  On Craigslist, Sayer posted an ad in the “Casual Encounters” section of the electronic classified ad site purporting to be from his ex, Jane Doe.  He posted pictures of Doe in lingerie in the ad, a list of sex acts she was supposedly willing to perform and detailed directions to her house in Maine.

Doe was visited multiple times over an eight-month period by men seeking sex.  Fearing for her safety, she changed her name and moved to Louisiana.  That didn’t help.  Sayer allegedly set up Facebook and MySpace pages under Doe’s name that included her Louisiana address and her new name as well as her original name.  The pages also included explicit photographs of Doe taken by Sayer and links to pornography sites that had Sayer-filmed videos of Doe engaged in sexual activity.  Sayer was charged under a federal stalking law, 18 U.S. Code § 2261A.

Sayer tried to argue that his actions were protected under the First Amendment, and that the cyberstalking law was overly broad.  The U.S. Court of Appeals for the First Circuit dismissed his challenges and Sayer was sentenced to 22 months behind bars.

The main lesson to learn from the case is self-evident: The First Amendment does not protect all speech.  A second lesson has nothing to do with any legal aspect of the case, but in the electronic age, it may be more important: If you allow someone to take potentially embarrassing images of you, those images will likely end up on the Internet. And once posted, the chances of deleting those images approach nil.   

There are other limitations on speech.  The old adage that you cannot falsely yell “Fire” in a crowded theater was penned by Justice Oliver Wendell Holmes to demonstrate that speech does have its limitations.  Truth is still truth, and making false statements or comments about someone on a blog post still constitutes libel particularly if it damages a person’s business.  We should be seeing more lawsuits along these lines as the unfiltered blogosphere creates more opportunities for miscreants to express their biases and views.