Expressing the opinion of the court in the U.S. Supreme Court Case Reno v. ACLU (1997), which struck down key provisions of the Communications Decency Act (CDA), Justice John Paul Stevens wrote the following:
In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable…
In this landmark decision, the Court aligned itself with the ACLU’s vision for an uncensored Internet, a free speech zone endowed with the same First Amendment protections given to “old media.” The battles over free speech today, though, are still characterized by evolving precedents and unsettled grey areas. The global community that witnessed Reno v. ACLU could not have anticipated the complications resulting from Internet intermediaries’ role in allowing – or restricting – free speech.
In this post, I will examine recent incidents involving free speech on Facebook and Twitter. They are listed here chronologically.
It may be helpful to remember that both Facebook and Twitter do have the general authority to take down posted content. States Facebook: “We can remove any content or information you post on Facebook if we believe that it violates [our Terms of Service] or our policies.” Likewise, Twitter makes clear: “We reserve the right at all times (but will not have an obligation) to remove or refuse to distribute any Content on the Services.”
- (November 2012) In India (on Sunday!), two women were arrested — one for posting a Facebook status criticizing the city of Mumbai for its citywide lockdown after the death of controversial politician Bal Thackeray, and the other for liking her status. The status was as follows: “People like Thackeray are born and die daily and one should not observe a [shutdown] for that. … Respect is earned, not given and definitely not forced.” The piece of law cited was India’s Information Technology Act of 2000, a code that Internet rights activists rally against. Note here that a Facebook “like” was considered a significant act of speech, unlike in the January 2012 case in Virginia below. Significantly, India is the world’s largest democracy, and precedents like the one established here are just as significant as others from the international community. 1 2
- (November 2012) In Israel, the Israeli Defense Force has been using Twitter and Facebook as strategic propaganda tools in its ongoing campaign against Hamas. Of note is a tweet from last Wednesday: “We recommend that no Hamas operatives … show their faces above ground in the days ahead.” It is questionable whether this tweet violates Twitter’s rules, which do not permit users to “publish or post direct, specific threats of violence against others.” Most of the IDF’s tweets fall within the bounds of standard news reporting, but some bring into question whether global policy is an exempt area within Twitter’s terms of service. Nonetheless, Twitter has not taken action yet. 3 4
- (November 2012) In Britain, Adrian Smith had his salary halved and his rank stripped by the housing trust firm he works for after posting on Facebook that gay marriage was “an equality too far.” His company claimed that by listing it as his employer on Facebook, Smith was posting as a representative of the company. A high court in London, however, defended Smith’s post, characterizing its decision as “a necessary price to be paid for freedom of speech.” 5
- (October 2012) In Britain, Azhar Ahmed was fined and sentenced to two years of community service for posting on Facebook, “all soldiers should die and go to hell.” The piece of law used to justify the sentencing was Section 127 of Britain’s Communications Act of 2003, the oft-criticized cornerstone of British media regulation that outlaws “grossly offensive” messages. Interestingly, according to Section 127, those who are offended by the message in question need not be the recipients of the message. 6 7 8
- (October 2012) In Germany, Twitter decided to selectively block content from the feed of the neo-Nazi group Better Hannover in response to a takedown request from Germany on grounds of hate speech and anti-democratic propaganda. This is the first time Twitter has used its authority to selectively withhold content. The feed, however, is still visible in the United States and other countries. 9
- (October 2012) In Britain, Matthew Woods was sentenced to 12 weeks of jail for “sick and offensive” posts on Facebook about missing children April Jones and Madeleine McCann. Woods’s lawyer claimed the posts were written in a “moment of drunken stupidity,” but the sentencing judge saw the posts as “abhorrent” and “causing public outrage,” citing Section 127 as well. 10 11
- (July 2012) In Britain, Paul Chambers was convicted (in 2010) for a public tweet of “menacing character” in which he joked in frustration that he would “blow an airport sky high” after realizing it was closed because of snow. Again, Section 127 was cited. He won his second appeal in July, however, and ultimately his tweet was protected in Britain’s High Court as an act of free speech. 12
- (January 2012) In Virginia, Daniel Ray Carter Jr. was fired from his job after “liking” the Facebook page of the candidate challenging Carter’s boss, a sheriff. Carter filed a lawsuit, but a U.S. District Court ruled that “liking” a page isn’t an “actual statement,” and is not protected under the First Amendment right to free speech. Facebook and the ACLU, as amici curiae, sided with Carter and together have appealed the decision. They compared the action of “liking” a status to other forms of protected free speech, such as wearing “a button on your shirt with a candidate’s name on it” (ACLU) or a displaying “a front-yard campaign sign” (Facebook). 13
- (March 2011) After previously stating that it wouldn’t remove a page called “Third Palestinian Intifada” in response to Israel’s request that the page be removed, Facebook reneged on its promise and pulled the page. At the time of removal, it had 350,000 “likes” and, according to Facebook, was actively posting “direct calls for violence” and “expressions of hate” by asking Palestinian Arabs to rise up against Israel on May 15, 2011. 14