-The US Supreme court struggled to develop appropriate tests that would clearly delineate between dangerous incitement to violence and the legitimate right of people to express themselves vehemently and angrily
-The courts loose "clear and present danger" test frequently upheld the constitutionality of laws that punished unpopular political speech
-The test evolved and eventually became the Bradenburg/Hess incitement test, that limits government punishment to speech that is intended to and likely to produce imminent legal action
-If plaintiffs claim the media acted negligently, leading to injury or death, they must prove the media had a duty of care that they breached and that the breach was the proximate cause of the injury
-Courts rarely find media liable because a reasonable person is unlikely to have foreseen the harm
-The Supreme Court has established that offensive expression, and even what many view as hate speech, is protected by the constitution because freedom of expression includes both the cognitive and emotional elements of expression
-When speech becomes an overt act of threat or intimidation, it may be regulated and punished
-Contract law and laws against unfair competition, or interference with economic gain, do not affect the first amendment even though they affect the media, professional communication and communication businesses
Key Terms:
proximate cause- the legal determination of whether it is reasonable to conclude the defendants actions led to the plaintiffs injury
Important Cases:
Tinker v Des Moines Independent Community
A landmark decision by the United States Supreme Court that defined First Amendment rights of students in U.S. public schools.One important aspect of the Tinker case was that the students' protest did not take the form of written or spoken expression, but instead used a symbol: black armbands.
Elonis v United States
A case concerning whether conviction of threatening another person over interstate lines requires proof of subjective intent to threaten or whether it is enough to show that a "reasonable person" would regard the statement as threatening
Relevant Doctrine:
Fighting Words: Words not protected by the first amendment because they cause immediate harm or legal acts; Defined in Chaplinsky v New Hampshire as "by there very utterance inflict injury or tend to incite immediate breach of peace".
The First Amendment does not protect words that 1) Are directed at an individual and 2) automatically inflict emotional harm or trigger violence
Incitement (Brandenberg Test): Limits government punishment to speech that is intended to and likely to produce imminent legal action; In evaluating laws that limit speech, courts tend to balance the interests at stake, usually categorically; The speech is both 1) directed to inciting or producing imminent lawless action, ad 2) is likely to incite or produce such action
Incitement (Brandenberg Test): Limits government punishment to speech that is intended to and likely to produce imminent legal action; In evaluating laws that limit speech, courts tend to balance the interests at stake, usually categorically; The speech is both 1) directed to inciting or producing imminent lawless action, ad 2) is likely to incite or produce such action
True Threats: Speech directed toward one or more specific individuals with the intent of causing listeners to fear for their safety; The Supreme Court defined it as an "utterance in a context of violence that can lose its significance as an appeal to reason and become part of an instrument of force", and examined both 1) speaker intent and 2) a reasonable persons objective response in determining true threats because of their historic power to terrorize
Media Negligence: Generally, the failure to exercise reasonable or ordinary care; When suits are based on Negligence, the plaintiff must show the media that the defendant had 1) duty of care, 2) the defendant breached that duty, and 3) the breach caused the plaintiffs injury.
To win a lawsuit for injury caused by media negligence, the plaintiff must prove breach of medias duty of care because the content posed a 1) reasonable foreseeable of harm or 2) Proximate cause of the harm
Tech companies, as private businesses, have the right to choose what speech exists on their sites, much as a newspaper can pick which letters to the editor to publish. Their online sites do already pull some content for breaking their rules. Facebook and Google have tens of thousands of content moderators to root out hate speech and false information on their sites, for example. The companies also use artificial intelligence and machine learning technology to identify content that violates their terms of service. But many recent events, like the mosque shootings in New Zealand, show the limits of those resources and tools, and have led to more demands for regulation. A live video by a gunman in the New Zealand massacre was viewed 4,000 times before Facebook was notified. By then, copies of the video had been uploaded on several sites like 8Chan, and Facebook struggled to take down slightly altered versions. Getting consensus on basic definitions of what constitutes harmful content, though, has been difficult. And American lawmakers have been little help. Some civil rights groups also raised concerns. “It is extremely difficult to define ‘harmful content,’ much less implement standards consistently and fairly for billions of users, across the entire spectrum of contemporary thought and belief,” wrote Corynne McSherry and Gennie Gebhart of the Electronic Frontier Foundation, a nonprofit group that advocates open and free expression online. Their article was headlined “Mark Zuckerberg Does Not Speak for the Internet.” So far, Facebook has stood alone in its call for regulations of harmful speech. Google, Amazon, Twitter and Apple did not comment for this article but have been stalwart in their support of free speech online. With a limited appetite for the government to step in and ban certain content online, regulators and some lawmakers have increasingly warned they will crack down on the internet companies for doing a poor job of policing their own policies. To do that, the government would most likely need to take away a legal immunity for internet companies, established in 1996, that shields them from liability for content posted by users.
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