I was reading Time today (as usual) and came across a story about Australia's new massive Internet censorship plan. It started me thinking: can that happen here? I didn't think too long, because the answer is, under current law, yes. Easily. Here is how.
We need to understand that the Federal Constitution, under the supremacy clause, is the highest law in the land. After it, there is federal law, then state constitutions, then state law. Note, federal law trumps state constitutions. The State of Oregon is often used as a case study for this, because, unlike most states, the Oregon Constitution is interpreted very differently than the Federal Constitution (no matter where you go to law school, if you take a class on how state constitutions work, you will focus almost exclusively on the Oregon Constitution). Under the Oregon Constitution, there is a complete ban on content regulation of speech; under the Federal Constitution, there is a multi-part test, which I will be discussing later. The Oregon Constitution is MUCH more protective of free speech than the Federal, but it only applies to state law. If a federal law is in violation of freedoms protected in the Oregon Constitution, it can still be applied to citizens of Oregon.
On a side note, for those of you who follow the blog, you have noticed that Ryan and I don't say where we are from. There is a reason for this; Ryan is in the military, and I will be a lawyer soon. This blog could have a negative impact on our careers, and the nice thing about the Internet is it allows us to say what we actually think. I mention this only to tell you that, no, I am not from Oregon. Nice try, keep guessing (not that you care).
Anyway, when looking at free speech issues, there are two lines of analysis. Speech regulations are either content based, or conduct based. For example, a law saying no yelling in city parks between the hours of 9pm and 6am, is conduct based; it applies to people based on what they are doing. A law saying no supporting libertarians in city parks is content based; the law specifically targets the content of the speech. The law in Australia is content based; it targets certain types of speech.
When a law is content based, the strict scrutiny test is applies. It requires that the law must be "narrowly tailored" to a "compelling government interest". Strict scrutiny basically means the law fails. While this is not universal to all cases (this test also applies to Equal Protection claims and affirmative action has passed it), the overwhelming result is that a law is invalidated.
Right now you are saying "but Ryan, J.D., you said it can happen here! You are a lair!" There is a second prong of the analysis. There is some speech which the Court has said is simply not protected. Strict scrutiny does not apply, its completely free to be banned. Here are the 3 big categories, with explanations.
1) Inciting- Speech can be banned if it creates a "clear and present" danger of lawless action, the conduct is likely, and the speaker intends it to cause the conduct. In the South, during the civil rights movement, MLK telling people to engage in sit-ins, could be a crime. Its not protected.
2) Fighting Words- Abusive words which are likely to cause a physical reaction from a reasonable person. If you say anything which makes me want to hit you, it can be banned. Please note here, this actually applies to anything. Saying you are a libertarian at a democrats house could be considered fighting words. It hasn't gone that far, but it rationally and easily could.
3) Obscenity (my personal favorite)- Speech that is sexual, offensive, and "lacks serious value" can be banned. As Justice Stewart famously said in Jacobellis v. Ohio,
"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ("hard-core pornography"); and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that." While the Court does not currently use the "I know it when I see it" standard, this phrase sums up how the Court actually views obscenity.
Anything which falls under these categories could be banned nationally from the Internet. Porn is gone. Anything saying a law is unjust could be censored. Anything which makes someone else want to hit you, good bye.
As noted before, this law would even apply in Oregon. In Oregon, it could not happen. There is no test to determine whether the constitution is violated other than, does the law restrict speech based on content. If the answer to that question is yes, the law is unconstitutional.
I love the Internet, because it allows me to say what I think. Are there down sides? Absolutely. The KKK assholes get to say what they think. However, that is what the Freedom of Speech is all about. You can think and say whatever you want, and I get to think and say that you are an asshole. You can do the same to me. That's the beauty of it. Once you take that away, freedom becomes meaningless.
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