Cyberbullying, Trolling, and Cyberstalking: the Dark Side of Free Speech Part 1: What is Free Speech?|
By Steve Burgess, 2014
To listen to, read, or watch the news, it is clear that there is broad misunderstanding about the right to free speech. It is not the freedom to say anything to anyone anywhere, but rather a prohibition to keep the government from denying us the right to express ourselves. The Bill of Rights asserts that we have certain freedoms simply by dint of being born human beings.
We treasure our freedoms and freedom of expression or speech is one of the most sacred. Having this right allows us to speak truth to power and to satirize fools. In fact, one of the earliest forms of protected speech may have been the Celtic bards who worked for tribal kings, satirizing poor (or opposing) rulers, but immune from retribution under Brehon law many hundreds of years ago, or even thousands of years under European Celtic tradition.
In many cases throughout history however, speaking freely has led to harassment, imprisonment and even the death of the speaker. Such events have given rise also to the protection of anonymous speech. Indeed, anonymous expression has been integral to the history and emergence of the United States itself. Although the Supreme Court has only come down firmly on the side of anonymity in recent decades, the Federalist Papers, penned anonymously at the time by Founders of our Constitution, may have only been able to bring these ideas to the public without revealing true identities of the Papers’ authors: Alexander Hamilton, James Madison, and John Jay.
As it turns out, free expression also gives rise to less noble speech that many would see as offensive, vile, despicable and dangerous but would still be protected. So we have learned to draw lines based in large part on whether or not there is harm. In general, you’re free to express yourself insofar as said expression does not hurt other people or break other laws.
But then, satire going back to the ancients was itself designed to hurt people – to topple kings from their high positions. So again, we find ourselves drawing lines within lines to distinguish the threshold level of harm.
In the USA the right to free expression is enshrined in, and guaranteed by, the First Amendment of the U.S. Constitution. The 1st Amendment is quite succinct and reads in full: "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."
This has come to be understood and adjudged to mean that the government can’t keep you from saying your piece, no matter how much the government, or anyone else might disagree. This applies to all government in the U.S. – Federal, State, local entities and public officials of those public entities. You are free to speak in “the Public Square.” Note that the concept of the Public Square applies only to governmental entities, property and officials. It does not apply to private or commercial property. Property owners or business owners can prohibit you from saying certain things, or from saying anything at all on or within their own property, business, or broadcasts unless it is otherwise allowed.
Also note that some broadcasts are in a gray or hybrid area. It is often asserted that the airwaves belong to the People. Corporations and private entities may use specific frequencies through the purchase of long-term, but still temporary licenses, which are sold and/or granted by the government. More on this in a later article in this series.
What kinds of speech or expression are not protected?
There are a few types of expression that are not protected and may be considered illegal by the government.
Among these are obscenity – speech which appeals to the "prurient" interest in sex, is patently offensive by community standards, and lacks literary, scientific, or artistic value. One may have noticed that pornography nonetheless is prevalent and easily accessible in print, film, and electronically. This is because the courts hold a very narrow interpretation of what can be found to be obscene and usually finds in favor of free expression - even if it is clearly pornography - over other interests opposed to pornography.
However, child pornography is not protected and is in fact, a Federal crime, likely to get the offender years in prison.
Incitement – often spoken of as “inciting to riot” - is speech that is not protected if it advocates for generating and is likely to produce 'imminent lawless action.' Again, the court tends to rule narrowly in such cases. I can think of many a 60’s protest song that in retrospect appears slightly shocking in its urging to violent revolution, but remained legal.
Fighting words – speech that is personally abusive to an individual and likely to induce physical retaliation (i.e., start a fight) is not protected.
Defamation, or libel, is not protected. These are intentionally false statements spoken or written in public that cause injury to an individual. “Joe Smith eats babies and so should not be allowed to work in the day care center,” might be an extreme example. The speaker could be sued in civil court by the injured party.
Knowingly lying in court, or perjury, is not protected and not legal.
Extortion of money or property from someone through the use of fear or threats is unprotected and illegal.
Also not protected is harassment, the act of systematic and/or continued unwanted and annoying actions of one party or a group, including threats and demands. This could include discrimination based on race, gender, or sexual preference. It could include particularly aggressive bill collecting, or some forms of blackmail
Threatening to inflict great bodily harm (“I will stab you in the eyeball,” would qualify. “I will smack you in the kisser,” would not) or death would be illegal if the person has an apparent ability to carry out the action. Idle threats would not likely be found to be illegal.
False advertising – knowingly communicating untruthful or misleading statements about a product or service is not protected. Oddly (and somewhat maddeningly), political false advertising is protected.
Some symbolic actions are unprotected if they are otherwise illegal. I might feel strongly about an issue, but tagging a building with my message would not be protected. Neither would the act of burning a cross on private property, or littering, even if it was a political statement.
Plagiarism of copyrighted material is not protected (although it may be under certain circumstances, such as if it is satire, or is partially quoted but with attribution).
So we can see that we have a broad right to expression, as long as such speech does not run afoul of certain other laws restricting particular classes of activity. And for the most part, we are free to express ourselves anonymously.
Now we have entered the Internet Age and we find that the Web can provide easy anonymity. We also find that very many feel emboldened to engage anonymously in vile, despicable and dangerous statements, without much fear of retribution for the pain and damage that their words may cause others.
When people are speaking face-to-face, it is easy to determine who it is whose speech shades (or possibly charges) over the line from protected expression into unprotected or even illegal forms of behavior. But Internet anonymity protects the offender from being identified, from witnesses being able to testify against the offender. In some cases, the speaker may not be identifiable; in others the speaker may be actually be impersonating someone else. And when anonymous, there’s not only less or little chance of being found out, there’s also less or little chance of social norms checking such behavior through public ostracism or social shame – both mechanisms that commonly keep otherwise objectionable behavior in check.
Perhaps this is why Internet trolling, cyberstalking and cyberbullying are becoming more and more widespread.
In Part 2 of this series, we will explore what these terms mean, show examples of their use, and discuss the damage their practice does.
Steve Burgess is a freelance technology writer, a practicing computer forensics specialist as the principal of Burgess Forensics, and a contributor to the text, Scientific Evidence in Civil and Criminal Cases, 5th Edition by Moenssens, et al. Mr. Burgess may be found tweeting @SteveBurgess01 or reached at Burgess Forensics - Computer Forensics, Data Recovery, Expert Witness Since 1985
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