Censorship: Is it Ever Permissible to Restrain

Censorship: Is it ever Permissible to Restrain Speech?

"Censorship." The word is such a powerful one that to many Americans the idea of any type of censorship seems to be the worst human rights violation imaginable. After all, if speech is controlled, how can people express differing political views and bring about desired social change? This viewpoint of the primary importance of free speech in a free society is a very American approach to the concept of censorship. However, as the internet has made it possible for people to cross country and boundaries with simply the click of a mouse, more and more people are becoming aware that American ideals of free speech are hardly universal. In other countries, some human rights are seen as even more important than the freedom of speech. This paper will explore the concept of free speech as it exists in America, limitations on free speech in other countries, and the possible conflict that will may exist between American and foreign free speech laws when a company provides internet services to people in multiple countries.

Americans base their right to free speech in the First Amendment to the U.S. Constitution. The First Amendment provides that, "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" (U.S. Const. amend. I). While the text of the language is broad, it does not protect all speech in all circumstances. On the contrary, only two categories of speech, religious speech and political speech, generally receive the greatest protections for free speech and there are several well-recognized exceptions in which the government can abridge the freedom of speech.

For example, when the act of speech is expected to create a dangerous situation, then the First Amendment does not protect the speech (Freedom Forum). Likewise, if the words are fighting words that are likely to incite immediate violence, then they are not protected under the First Amendment (Freedom Forum). Libel and slander can be punished, but the government will not generally put prior restraints on that type of speech. Finally, obscene materials are not protected under the First Amendment, but the definition of obscenity is constantly evolving; indecent (or adult-oriented) material does receive constitutional protections, but there can be reasonable restrictions on that speech to protect children from exposure to it (Freedom Forum). Furthermore, if the speech would conflict with another legitimate interest, it can be restrained. In addition, reasonable restraints on the time, place, and manner of speech are generally acceptable (Freedom Forum). While these restrictions do not eliminate the First Amendment's protections, they do make it clear that speech can face reasonable limitations.

Another common mistake about the First Amendment is that people believe it prohibits private restrictions on speech. For example, Facebook is known to censor the images that people put on their pages, and will even suspend someone's posting privileges after a sufficient number of violations. To many people, this is a form of censorship that would violate the First Amendment. While it is censorship, it does not violate the First Amendment. The First Amendment only protects against state action. It specifically discusses the federal government and prohibits that government from restraining speech. The Fourteenth Amendment extended the Bill of Rights and made them applicable to the states, so that state governments would likewise be prohibited from restraining speech. However, there is nothing that prohibits private actors from restraining speech. "As a general rule, the owner of private property is free to restrict expressive activities of others on the property" (Linder).

In terms of the internet, what the First Amendment means is that, for the most part, an internet service provider (ISP) is not going to be subject to punishment for allowing a user to publish protected speech through the ISP. Moreover, the individual user will not be subject to punishment for publishing protected speech through the ISP. If the speech is not protected, for example, child pornography, the First Amendment will not offer protection to the individual user or to the ISP in a criminal or civil prosecution. However, the First Amendment does not require an ISP or other internet service, such a social media outlet, to publish material that it deems offensive. Therefore, Facebook can continue to ban pictures of breastfeeding women, even though the images are not obscene.

The really interesting conundrum arises when there is a conflict between American laws and foreign laws. As stated above, not all countries enjoy the same freedom of speech that exists in the United States. For example, Germany has very strict laws against certain types of hate speech. While this may seem like a gross violation of the basic right to political speech, it is important to view the restrictions within their context. "Germany committed a genocide across Europe during the Holocaust of the 1930s and 1940s. Its speech laws reflect active efforts to rein in words and attitudes that Germany's own government once broadcast to the point of saturation. Germany occupies a rare position as a developed state with firsthand knowledge of the power words have to fuel genocide. Its speech laws can be seen, at least in part, as reactions to that power" (Allen and Norris, p.1). These speech laws are very comprehensive. For example, they prohibit any speech that would be likely to incite hatred against any segment of the population that calls for violence against any segment of the population, criminalize Holocaust denial, and even outlaw certain political parties. While these laws restraining speech would seem extreme in different contexts, the historical use of anti-Semitic propaganda to fuel the largest genocide in modern history helps explain the laws. Moreover, while Germany's laws are stricter than the laws in most of Europe, almost all countries that had active Nazi parties or were under Nazi rule during World War II have enacted similar laws. What would be an unacceptable abridgment of basic human rights in the United States is seen as a critical way of helping protect and ensure human rights, particularly minority rights, in much of Europe.