As Apple tries to fend off government demands for access to iPhone content, the company is leaning on free speech arguments as a key part of its defense in a California courtroom.
On the other end of the country, 10 separate lawsuits have piled up this year against net neutrality rules, with both sides claiming First Amendment rights in this long-running dispute over Internet service.
This is Sunshine Week in the U.S., when news organizations spotlight the public’s right to know and size up the state of government openness and access to public records.
This year, we should add a more sweeping question to the list: How will the First Amendment survive the dramatic changes in information technology?
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Complicated disputes are popping up everywhere.
Cases moving through the courts range from whether Facebook “likes” and Twitter posts are protected speech (both for the moment are) to what speech rights businesses should have (they’re expanding).
The mere definition of free speech is getting clouded: Are video games a kind of speech? And what about computer-driven content like searches and automated stories? Put another way, can iPhone’s Siri claim First Amendment rights if she somehow libels you?
First Amendment laws shaped over decades are colliding with modern privacy concerns. On some campuses, protesters are objecting to free speech. There’s growing support for “right to be forgotten” laws that allow people to erase pieces of their past they don’t want found.
When a humorist gathered 50 signatures calling for repeal of the First Amendment as a joke last year at Yale, nobody should have been laughing.
The First Amendment has survived plenty of change in 225 years as it has adapted to telegraph, print, radio and television. But those who follow the topic most closely say the information age is a whole new era.
Here are five questions likely to shape the future of the First Amendment:
▪ How will the Internet alter free speech practices? There’s a lot of unsettled law about how speech and expression play out in a Facebook world. Scholars say rules taking shape will generally extend existing standards to the Internet. The challenge will be figuring out when speech is altered by the Internet’s speed and reach.
“The Internet amplifies everything,” said Thomas Healy, a Seton Hall law professor. “It amplifies expression. It makes it more powerful, more dangerous, more offensive.”
Early court decisions hold that data-driven content, such as computer-assembled news and Google searches, is indeed protected speech. So is code itself, which is the basis of the First Amendment argument Apple is making for refusing to crack open the iPhone of one of the San Bernardino mass shooters.
▪ Who’s advocating the public’s interest? We should watch which players step up as a changing of the media guard takes place.
The newspaper and broadcast companies that championed speech rulings of the 20th century don’t have the power and financial strength they once did. The five dominant companies – Google, Apple, Amazon, Facebook and Microsoft – have yet to show much interest in the First Amendment.
“I worry,” said John E. Finn, the Wesleyan government professor who taught the Great Courses series on the First Amendment, “about the lack of well-funded institutions advocating for openness.”
▪ Who controls how information moves? Just as important as who creates content will be who distributes it, which is why net neutrality rules approved by the Federal Communications Commission last year are under withering attack.
The current rules say service levels and rates should be the same for all. Internet providers say that curbs business options, while content creators say reversing this would give the Internet’s utilities too much power over the marketplace that would lead, for instance, to download speeds based on your willingness to pay.
▪ What will expanding business rights mean? Corporations have turned to the First Amendment to free themselves from limits to advertising, ingredient listings and political contributions. Some say that the expansion of any speech rights serves all comers. Others say this shift goes against the intent to protect the rights of citizens against powerful government and corporate interests.
▪ Finally, where do you stand? Here the news is encouraging: The simple 45 words covering religion, speech, press, petition and assembly are woven deep into our civil fabric. Polls consistently find overwhelming support for the First Amendment from a vast majority. Unlike other topics in public life, those sentiments cut across political, ethnic, age and economic lines.
Two-thirds of the world lives without religion and press freedom, and many countries, from China to Cuba, are using technology to suppress freedoms. This makes the American model an even greater beacon if we succeed in using technology to broaden rights.
“We have the gold standard,” said Alberto Ibarguen, director of the Knight Foundation, which funds media innovation around the world. “It’s our responsibility to make sure we maintain that.”
The First Amendment did not find its place at the core of our rights without many struggles over two centuries. Sunshine Week is a good time to remember there are fresh battles ahead.
Anders Gyllenhaal is vice president for news at McClatchy.