In the United States, freedom of expression is a fundamental principle that defines how public discourse develops and operates on a national scale. The advent of the internet in the previous century, and its rapid development and expansion in our present century, has redefined what we consider expression and speech to be and presented new challenges for how we think about ways to protect free expression.
In 2016, the United Nations determined that access to a free and open internet is a human right. The Brookings Institute argues that “holding governments accountable for human rights violations, including restricting internet access, will advance reforms for protecting other human rights.” It’s apparent that having an unrestricted internet is imperative for protecting freedom of expression, given how our shared realities and discourses have increasingly moved into digital formats or mediums.
One of the central changes to how the internet relates to freedom of expression can be found in Section 230 of the Communications Decency Act. Section 230 stipulates that online services or platforms cannot be treated as the publisher of objectionable content that is subject to removal. Section 230 is incredibly broad and has protected internet platforms and providers for decades from claims from plaintiffs that have sought to impose civil punishment on them. This immunity has been challenged in a variety of ways, but generally it provides websites protections from litigation for what their users post.
Another section of the Communications Decency Act, Section 505, originally forced television providers with channels that were primarily concerned with airing sexually explicit content to “fully scramble or otherwise fully block” or broadcast these channels between 10 p.m. and 6 a.m. However, the Supreme Court found that Section 505 violated the First Amendment’s free speech guarantee. The Court argued that regulations on expression or speech have to be narrow enough to show why the government should be concerned with something in the government’s interest.
The primary way the internet has reshaped freedom of expression is that it changes the way we actually express ourselves, bringing in newfound challenges to considering how to grapple with speech that is illegal, such as a speech that incites violence. There have been habitual and recurrent conversations pertaining to what entity is responsible when speech that is illegal is disseminated on a website or social platform. Furthermore, the existence of the internet and private companies serving as providers of spaces to engage in discourse has brought about a new debate: To what extent can private internet platforms regulate speech on their platform?
There is an argument to be made that dominant social media platforms, like Twitter (or “X”), constitute a de facto public square of conversation, making it challenging to justify the regulation of speech that does not break federal or state law. However, these are private firms that can set stipulations and rules for users to adhere to in order to access the platform. This debate and opposing functionalities continue to pose issues for users and developers alike.
It is difficult for me to envision what a ranking of values in the digital age would look like. For me, I think privacy rights are habitually ranked low in this hierarchy of values when they should be placed higher to the top. There are many instances where user agreements hold an internet degradation of privacy rights for users, and this is often justified with a line of thinking that these platforms are optional and users can refuse to engage with them. But as we continue to utilize the internet in going about our lives — from health portals, to fleeting websites with tracking cookies to institutionalized social platforms that provide interconnectivity — we should pull privacy rights higher on our ranking of values.
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