One of the top priorities of the new federal government will be to address the issue of free speech in the age of the Internet.
Free speech, and free press, were established in the United States with the adoption of the Bill of Rights in 1791. It is part of the First Amendment.
It reads: “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.”
The Bill of Rights was originally limited to only our federal Congress. It wasn’t until 1865, with the adoption of the Fourteenth Amendment, that the Bill of Rights was applied to the states.
The Fourteenth Amendment reads: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The term for the judicial process by which the Bill of Rights was applied to all states through the Fourteenth Amendment is called the Incorporation Doctrine. Its application has been firmly established by dozens of U.S. Supreme Court rulings.
In addition, the constitutions of most states include a provision protecting free speech.
Section 13 of Mississippi’s state constitution reads: “The freedom of speech and of the press shall be held sacred; and in all prosecutions for libel the truth may be given in evidence, and the jury shall determine the law and the facts under the direction of the court; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted.”
In summary, our government guarantees the freedom to say or print whatever you so desire, if what you say or print is not slanderous or libelous.
That is a big, big if. Your freedom of speech and freedom of press has always been subject to our laws of slander and libel.
So what is slander and libel? They are really the same thing. It’s just that slander relates to speech and libel relates to print. Truth is an ultimate defense to libel and slander. You can’t say or write something really bad about someone unless it is true and provable in a court of law.
Twenty-five states have “defamation laws” governing slander and libel. There are no federal libel and slander statutes. But the entire country is governed by libel and slander “common law.”
Common laws were never passed by a legislative body, but arose over time through numerous court rulings. Common law goes back a 1,000 years. It is older than our nation.
Back in the old days, defamation was handled through duels.You had to be very careful about saying something bad about somebody or they could possibly challenge you to a duel. Each party walked a certain number of paces, turned around and shot with a loaded handgun. That was the way to settle any damage to your reputation. There were all sorts of laws regulating duels, most of which have been abolished.
If you refused to accept a challenge to a duel, your reputation was permanently damaged, which often meant financial ruin.
Duels were often tragic, but they were an effective method of preventing libel and slander. As a result, people were often exceedingly polite in their communications, even when they vehemently disagreed.
Wow! What a change compared to today, where civility has been thrown into the ditch. Search YouTube and listen to the 1960 Presidential debates between Richard Nixon and John Kennedy. Notice how polite they were to one another. Now compare that to the Trump-Biden debates of 2020. We are going backwards as a nation.
Today, we live in an Internet world of instant communication and complete access. Any person can make a post that can go viral and be read around the world. This is a far different environment than the one in which our original press and speech laws evolved.
In 1996, the Internet was a baby. Google, Facebook and Twitter did not exist. Congress wanted to encourage the new Internet technology, so they gave Internet platforms immunity from slander and libel lawsuits. For the first time in history, a new publishing platform was exempt from defamation lawsuits. The exemption is in Section 230 of the Communications and Decency Act of 1996. And here we are.
If you ever wondered why websites can be totally fake and still exist, that’s why. If you’ve ever wondered why people can be slandered anonymously, their lives ruined, without any way to fight back, it’s Section 230. If you wonder why crazy rumors can be perpetuated and spread on Facebook and Twitter, that’s why. If you wonder why the world seems to have gone crazy, it’s Section 230.
Section 230 provided lawsuit immunity only if it allowed all citizens access to its platform without editing content, except for “material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.”
The Internet platform gets to decide what is “obscene, excessively violent, harassing” etc. Twitter, acting on its own, has decided President Trump’s tweets are “violent.” He’s been banned.
Both President Trump and President Biden have called for the repeal of Section 230.
The CEOs of Google, Facebook and Twitter argue that repeal of Section 230 would seriously damage, if not destroy, their business models. They are using their enormous power and money to stop the repeal.
So what is to be done? If we eliminate Section 230, the Internet platforms will have to eliminate a huge amount of content to avoid lawsuits. They will have to hire armies of editors to review posts.
Freedom to rant without will be curtailed. But if we don’t repeal it, Internet platforms will become the new censors of our age. They will wield unimaginable power over our speech and thought. This is especially scary given that Google, Facebook and Twitter are de facto monopolies.
One idea is to create platforms run by the government and let government officials be the censors. Oh, boy! Or maybe we can do more Congressional tinkering and try to fix Section 230. Good luck!
It’s just a matter of time before the U. S. Supreme Court weighs in with a groundbreaking decision. It may trump Congress as it did on abortion.
These are not easy decisions. The future of our culture and society is on the line. Allowing publishers freedom but holding them accountable to libel and slander has worked for hundreds of years. Congressional tinkering in the form of Section 230 has been an abysmal failure, leading to riots and violence in the streets and obscenely powerful private media monopolies.
It’s time to go back to the future.
