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Free Expression

Next President Must Preserve Free Speech on the Internet

[Ed. Note: this is the second in a series of blog posts addressing a range of technology and civil liberties issues we believe America’s next President and Congress will have the chance to take a fresh look at, and the opportunity to set a policy course for the Internet that will keep it open, innovative and free.]

It will be critical for the next President to do his part to uphold the Internet’s robust culture of free speech and innovation as we march further into the 21st Century. In stark contrast to the mass media of the last century, the Internet has provided, at very low cost, virtually unlimited forums for both creators and consumers of new content and technologies. This in turn has created a huge boost for participatory democracy and our economy. The next Administration must reject Congressional or agency efforts to censor content or stifle the fire of innovation on the Internet and other communications media.

All Digital Media Deserve Maximum First Amendment Protection

The Internet’s rise to national and international prominence was no accident. Two essential legal pillars have enabled the Internet to become the indispensible communications tool it is today: 1) The First Amendment as interpreted by the U.S. Supreme Court in Reno v. ACLU, and 2) Section 230 of the Telecommunications Act of 1996. These two bodies of law prohibit government interference with online speech, and equally importantly promote and protect the private creation of online venues for speech. They have together provided the policy foundation that has enabled creativity to flourish online, which in turn is fueling the transformation of politics, commerce, journalism, education, healthcare and entertainment. Generally speaking, the First Amendment’s free speech clause prohibits the government from censoring content or exercising a heavy hand in regulating what people say. For it to be constitutionally permissible to do so, the government must meet a very high standard.

However, prior to the Reno case in 1996, it wasn’t clear that the First Amendment’s highest free speech protections applied to the new medium called the Internet. In Reno, the Supreme Court decided that the Internet does deserve the same high level of First Amendment protection as print media. Congress also had the foresight in 1996 to see that the fledgling Internet might need some statutory safeguards as well. So Congress passed Section 230, which generally prohibits both the government and private parties from holding Internet intermediaries (such as website operators and ISPs) liable for content created by others that might be defamatory or otherwise illegal. The significance of this legal framework can’t be overstated. The YouTubes and Facebooks and eBays of the world simply would not exist absent both Reno and Section 230. Reno, in particular, sets the gold standard for protecting free speech in the digital era. As new digital media are developed and as traditional media like TV and radio converge with digital media, it will be essential that the entire 21st Century communications landscape – from traditional broadcast to today’s Internet and beyond – receive maximum legal protection from government censors. The next President must be a strong and vocal advocate for: – Expanding Reno’s reach in the coming years and decades; and – Not messing with Section 230!

Protecting Children Online Means Educating Them and Empowering Their Parents

Government efforts to restrict Internet speech have largely occurred in the specific context of wanting to protect children from inappropriate material or ill-intentioned adults. This is clearly a critical goal, but the key questions are: What strategies are constitutional? And, more importantly, what strategies will actually work? Legislative or executive proposals that make it a crime to allow certain online content to be accessed by minors, that prohibit minors from using certain online services (such as social networking sites), or that create “black lists” of certain websites, for example, are blatantly unconstitutional and would, in any event, do little to actually protect children online. Instead, parents must be empowered to protect children, with parents deciding what is appropriate for their particular kids. Parents themselves must be encouraged to be active participants in their children’s lives and set household media usage rules, for example. Parents must be educated on how to use the myriad technological tools that can block children’s access to certain websites or that enable parents to monitor their children’s online activities. Also, incentives must be given to spur the further development of such technological parental empowerment tools.

Educating children to be “media literate” is also critical. It makes no sense to send children out into the digital world without the ability to make smart decisions for themselves. While children should be encouraged to use the Internet because of its vast social and educational value, children must also be made aware of the risks that exist online and how to avoid those risks. Online risks are similar to offline risks, and in both worlds, parents must be involved in their children’s lives and kids need to be able to look out for themselves when necessary. The next President must: – Reject Congressional or agency proposals that would unconstitutionally stifle online speech, even if presented in the name of protecting children; and – Support funding for the development of technological parental empowerment tools and “media literacy” curricula for both parents and children. The next President has a golden opportunity to show real leadership when it comes to promoting free speech and innovation on the Internet and other communications media. We invite you to read our more detailed Internet free speech agenda for the next President.