WWW: Beyond the Basics

5. Freedom of Speech

5.5. Let there be Laws!

The legal battle on freedom of speech and its counterpart, censorship, is where the interesting commentary can be found on this issue. Given that freedom of expression is one of the given human rights for all persons, how that right is to be legally protected and interpreted has already proven to be a major judicial endeavor. Now that the Internet enters the equation, even more difficulties need to be overcome.

Numerous summaries exist on the development of the legal specifics of freedom of speech. Sifting through the various relevant cases (or accountings of these cases), one begins to think of the axiom that any point of view can be proven with statistics. It seems that the interpretation of past cases involving freedom of expression depends on the person reviewing them. A few excellent summaries have been found that will be highlighted here (Lappin, 1996).

The basic legal foundation for freedom of expression was stated earlier in the First Amendment to the United States Constitution and the Universal Declaration of Human Rights by the UN. It has also been stated that this definition of free expression does not give an individual or group the absolute right to say or express anything without limit. So what are the legal limits to free speech?

One note before continuing: All references to "laws" are attempts to generalize to the international interpretation of freedom of expression and its corollary issues. However, most comments will be based on US court rulings. It is the intent that these generalizations are the common interpretations by governments around the globe (at least the democratic ones).

Generally there are provisions in law for two cases that limit free speech: obscene material and a compelling government interest.

The US Supreme Court ruled that obscene material a) depicts sexual or excretory acts listed in state obscenity statute, b) depicts those acts in a "patently offensive" manner, appealing to the "prurient interest," as judged by a reasonable person applying the standards of the community, and c) lacks "serious" literary, artistic, social, political, or scientific value. Furthermore, from a global perspective, 104 countries have adopted a 1911 treaty (Protocol to amend the Convention for the Suppression of the Circulation of, and Traffic in, Obscene Publications, concluded at Geneva on 12 September 1923) to prohibit obscenity trafficking.

The other limit to free speech, legally, is when there is a "compelling government interest" to limit free speech rights. This second restriction to freedom of speech has rarely been exercised, and rarely been successfully defended in court. However, this has been implemented in limiting "indecent" exposure to children. A supplemental addition to the "compelling governmental interest" statement is that restriction must be exercised through the "least restrictive means possible." This extension is an important weapon to both sides of the freedom of speech debate.

All is relatively clear until the term "indecency" is thrown in the mix. The CDA, signed as part of a major telecommunications bill in the US on February 1, 1996 defines indecency as: "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." (Communications Decency Act, 1995) This definition of indecency and its interpretation in the CDA have been found unconstitutional by a US Philadelphia federal district court. Thus, with this rejection of censorship the public argument on the true purpose, and legal interpretation of "indecency" and the CDA commenced (actually wary free speech groups began sounding the alarm even as the CDA was being discussed in Congress before reaching the President's desk for signature).

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Copyright © 1996 Mike McGee, All Rights Reserved

Mike McGee <mmcgee@vt.edu>
Last modified: Thu Nov 27 13:13:33 1996