Recently, a group of United Kingdom Members of Parliament (M.P.s) asked the government’s Crown Prosecution Service to investigate the feasibility of restricting or eliminating Internet access for those who post hate speech online.
In the past, the U.K. imposed similar restrictions on sex offenders’ Internet access. But in the U.S., the 7th Circuit Court of Appeals already ruled that even sex offenders have the right to access social media networks. That right means that, while this new U.K. proposal is intriguing and maybe even tempting, it wouldn’t be quite so easy on this side of the pond.
There’s one very simple reason this approach is a lot more complicated in the U.S. than it is in England: the First Amendment to the U.S. Constitution protects our right to free speech. In the United Kingdom, the right to free speech is codified under Article 10 of the European Convention on Human Rights, which is somewhat similar to our own First Amendment. However, Article 10 has many more exceptions than our First Amendment; laws against defamation and hate speech are much stricter in the U.K. than in the U.S.
Exceptions to the First Amendment
The First Amendment protects virtually all expression, even—or more accurately, specifically—offensive expression. After all, no one objects to words that aren’t objectionable. If our government had the power to ban hateful, offensive speech, then it has the power to ban any expression it wishes by labeling it as such. That’s something we should want to avoid.
Only when speech moves from offensive to damaging—to more than your self-esteem—does it lose First Amendment protection. Most of us have heard the example about yelling fire in a crowded theater. That example comes from Chief Justice of the Supreme Court Oliver Wendell Holmes in his opinion in the 1919 case Schenk v. United States. Holmes said that doing so was not protected speech because its purpose would be to cause a panic that would likely result in physical harm to others. In Brandenburg v. Ohio, the Supreme Court ruled that speech intended to cause “imminent lawless action” is also not protected.
What About Those Anti-Bullying Laws?
No rational person thinks bullying is a good thing, but some very rational people believe that trying to prevent it by restricting free speech is a bad thing. The legislative branches of state and federal government can pass laws, but the judicial branch can overturn those laws if they violate the Constitution. That’s already happened in New York, . Many other similar laws will likely see court challenges in the future.
So Where’s the Line?
Using the Brandenburg case standard, if I respond to your latest Facebook update by saying, “That post is dumb and so are you,” it’s incredibly rude, but entirely legal. If I instead say to a specific group of people, “That post is so dumb that you should hurt him,” then I’m probably going to have some legal bills to pay, especially if there’s a significant chance that group will actually do so. Therefore, unless online trolling and/or bullying is specifically designed to cause harmful actions, it’s protected speech, and we can’t ban it, no matter how much it might anger or offend us.
The government may be the answer to some problems, but not this one. We can’t use the law to ban people from being rude in real life, and so we can’t ban them from being rude online, either. Asking that even the most ignorant, hateful speech become illegal is a dangerous idea.
So What Can We Do?
Instead, we can report inappropriate commenters to website moderators and let them take action. And we can make sure our social media posts are only visible to our online friends. Another approach is to use technology to our advantage with web browser extensions that modify online comments for more humorous effect.
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