Gordon Tran
Laura Goldstein
UCWR 110
11 Dec 2017
Modern Censorship
Censorship has a been a part of society long before the ratification of the First Amendment. Nongovernmental censorship has been regulated through strict cultural codes and religious social codes across societies all over the world. It was found to be particularly effective due to the small intimate size of local communities influenced by the fear of being shunned by the community. Today, in modern society there are laws in place to protect people from potentially harmful or degrading speech against one another. This is expressed upon in Patrick M. Garry’s, “The Right to Reject: The First Amendment in a Media-Drenched Society”. Garry, a law professor with a Ph.D. in Constitutional History, has written numerous of scholarly books that received many awards for his insight in his field. The idea of censorship to the everyday person is being safeguarded from an expression given by another person or group. As we investigate the prevalence of the right to silence with regards to the First Amendment we see, self-censorship can be deemed into two categories, “bad” and or “good”. The principles support self-censorship in the sense that a person or media group may choose to cease from reporting or publishing information, due to the belief that public interest is better worked by his judgment to silence his thought. In Robert A. Sedler’s article “Self-censorship and the First Amendment”, he addresses self-censorship in the context of media corporations utilizing their editorial discretion to refuse to advertise, and ideologies stated in the First Amendment that is designed to discourage self-censorship. Sedler has established himself in his field litigating large amounts of civil rights and liberty cases during his practice and is now currently teaching Constitutional Law and Conflict of Laws at Wayne State Law school. Similarly, “Free speech needs saving from itself” by Sally Adee speaks on the difficulties the world faces with the modern age of bot and the ability to misrepresent public opinion. Sally Adee earned her Bachelors and Master degree at The John Hopkins University in Science Writing where she is able to take a more scientific approach to the state of free speech. Through the evolution and integration of technology into our society, the use and accessibility of media have increased significantly prompting a reevaluation of media censorship to maintain an ethical society.
A moral society must be maintained by not only law and order, but by cultural codes. In the past, the church held a very dominant role in communities, many more prominent than the government. This allowed the church to set codes that, “…discouraged speech that was rude, offensive and degrading, or insulting” (San Diego L. Rev.). With the church’s public influence, they were able to spurn people who violated the social codes through the immense number of followers and members. Noting that during these times, nearly everyone was highly religious and prioritized God and his orders above all. Comparable to the followers of the church, large social media platforms have established their influence into modern civilization. People have-and-will always have conflicting views; nevertheless, it is the community’s responsibility to arrange standards in which everyone must follow to ensure a safe environment for people to safely express their thoughts. The First Amendment, interpreted under the Blackstonian theory states, “speech that was defamatory, immoral, subversive, or disturbing of public peace and good order should not be protected” (San Diego L. Rev.). As the world progressed and accepted more radical views, there has been a struggle to adhere to the original definition established by our Founding Fathers. On the internet, you will find posts that can potentially be deemed defamatory, immoral or subversive. Eighteenth-century Americans accepted and recognized an association between speech social relationships known as the “morality of language”. It embodies the idea of civility with the goal is that “people should not engage in speech that insults or offends another person” (San Diego L. Rev.). This careful attention to each member of society is focused due to the familiarity these people impose on each other. Recently, with the implementation of easily accessible media, people from across the world interact with each other with the blink of an eye. This entire system was non-existent in past societies; therefore, as long as the speech or the post are not direct threats, it is within that person’s right. During the constitutional period speech transformed to put less focus on all the harms of speech but instead “characterized as mere social interest” (San Diego L. Rev.). This is significant because we begin to see an increased toleration for unrestricted speech among the people. This acceptance varied from community to community, therefore, it is difficult to establish a unifying definition. Finding and establishing an updated definition of the First Amendment is essential for community
“Good” self-censorship is the use of censorship where the media is used in a way to spread opinion and matters of public interest quickly and publicly; however, may decide to remain silent when warranted. Media groups exercise their editorial discretion by limiting the information they portray to the public. This is an example of good self-censorship because the media came to a conclusion that under certain specific instances like rape cases or issues that concern national security, are prioritized over the public’s interest for information. In rape cases, “disclosing the name of a victim may intensify the potential stigma and long-term trauma experienced by the victim” (Sedler). The media recognized other heavy factors like mental health for the case, swaying the decision for what they allow the public to know, therefore, protecting them from the media attention. This then allows the victim to live in peace and comfort and begin the healing process from the traumatic experience. Another scenario in which editorial discretion should be enacted on are topics that would be harmful to our national security. This decision was controversial because the media decided not release information on topics that intertwine with government. In 1971, The Supreme Court decided that “a court could not issue an injunction against the publication of the Pentagon papers… the decision-making process in Vietnam” (Sedler). This ruling was significant because on one hand, the government believed that the release of the document would result in difficulties when negotiating a treaty with the North Vietnam government. If the information that is being released does not “pose a direct threat or irreparable damage to the people” (Sedler) the court does not have authority to place an injunction restricting it from publication. In the past, the government and the media had worked alongside each other during the Manhattan Project during the development of the atomic bomb. The media, using their editorial discretion, provided the United States the discretion it required that was ultimately able to defeat the Japanese and mark the end of World War II. On the other hand, as many things go, when there is a good side, there is also bad.
“Bad” self-censorship is best depicted as unwanted silence resulting from fear. Our government has achieved this objective in the past through a concept known as the chilling effect. Sedler describes this as “decisions to refrain from speaking or publishing due to the fear of governmental sanction under a law prohibiting or regulating expression” (Sedler). This is significant because the judicial system furthered laws have protected free expression and allow the opposition to occur and unpopular ideas can be spoken. With this ruling in place, it prevents the government to overstep and control their citizens keeping the power with the people. This is represented on the Narrow Specificity Principle stating, “…any governmental regulation of expression will be found to violate the First Amendment if it is ‘pursued by means that broadly stifle personal liberties when the end can be more narrowly achieved’” (Sedler). This allows the First Amendment space for future adjustments as it needs to be changed as society establishes new mainstream norms. It is vital for our legislators to understand that the natural law is to be taken as a living document as it is for protecting the people and naturally—people change. However, the government has jurisdiction over bans on specific publications on the names of sexual assault victims, names of juvenile offenders, and information from confidential legal proceedings. These bans were “…designed to force the media to self-censor with respect to the publication of this information, and so would deprive the public of the self-censored information” (Sedler). The Supreme Court found the confidentiality of these topics to supersede the public’s interest on the access of this information which is directly related to the safety of the victims and or perpetrators. Additionally, public institutions and communities have pushed to obtain and maintain political correctness in its community codes as they’ve been prohibiting language that would cause an unsafe or intimidating environment for minority groups, members in the LGBT community and other groups. This thought for updated codes follows the overbreadth doctrine, “by which the Court prevents self-censorship due to the existence and threatened enforcement of overbroad and vague laws that regulate or are applicable to acts of expression” (Sedler). In simpler terms, if certain prohibitions are unclear to the person, it is better to completely stay away from it avoiding any legal consequences making the law broader than what the U.S. Constitution intended. Lack of enforcement on these codes has cost many media sites millions of dollars in fines.
Social Media has a variety of users stemming from many regions all over the world. As a result of that, we see conflict arise between people ranging from all over the world due to certain posts that clash with another group or person moral belief. These posts may be within the media’s community policy, but when they catch higher attention, people who disagree often take matters into their own hands, thus creating the “Call out culture”. This behavior is often taken by progressives and activist who use the large platform to their advantage, finding and pointing out instances that are sexist, racist or ablest and bringing light to the hate it processed. On the page Soul to Soul on Facebook, it provided the opportunity to bring up topics that have been avoided by many people like how, “Sexual abuse flourishes in the black community…We are more likely to hide the abuse, telling our children to keep ‘what happens in this house in this house’” (Soul 2 Soul). This type of call out culture did not directly pinpoint a single person in their wrongdoing, but calls out an entire culture as a whole. This call to action by two female black reverends is intended to inspire the black community to rise up against this old traditional mindset. Contrary, in a more aggressive setting we see people being singled out as posted by Tyneisha Bowens. In her post, she expresses to the public, “West Philly racist spotlight! Abby Heller-Burnham called me a Black bitch with ugly nappy hair…and intentionally tried to use racist police violence as an intimidation tactic” (Bowens). This personal post invited many replies from her friends in support of her actions but also included personal criticisms and insults on the perpetrator with some asking for her address. Although we cannot confirm intent, we can infer that if there were to be an encounter, some sort of heated disagreement would emerge. Both the perpetrator and the victim would have violated a community standard, with Burnham making racist remarks and Bowens having her post unknowingly cause violence. Although it was not the intent for her to invite hostility, it is the internet culture. Call out culture can be deemed toxic due to the fact that “calling someone out isn’t just a private interaction between two individuals: it’s a public performance where people can demonstrate their wit or how pure their politics are” (Ahmad). People act in a way where they say things they normally don’t due to the fact that it is over the web and not in person. This sense of competitiveness between two people or groups to defend their position is what accelerates them to speak recklessly at times.
As the world enters into a more interconnected society, media platforms such as Facebook Twitter have to regulate and enforce posts on their servers in order to maintain a moral and safe environment for their users. In early September of 2016, Facebook was caught in a censorship conflict regarding an iconic picture emerging from Vietnam war. Taking major criticism from users, Facebooks responded stating, “We try to find the right balance between enabling people to express themselves while maintaining a safe and respectful experience for our global community” (Moore). Facebook has policies banning pictures that show pornography, genitals, breasts, or buttocks sometimes giving exception to certain education purposes or arts. This so-called “iconic” picture that was banned by Facebook displayed a nine-year-old Vietnamese girl running nude in the streets after being hit by a napalm attack. It is difficult for Facebook editors to distinguish between one instance of nudity to another when there are so many posts flowing in and out of servers every second. For example, in the 2013 Boston Marathon bombing, researchers from IBM research labs found that about 29 percent of all tweets posted about the bombing were rumors and fake content, and over 6,000 new malicious accounts were created during the time of the trend. On a similar note, people have always posted their political point of views on social media. Recently, research has shown that since we have entered the age of automated bots, they are able to control and shift popular trends on the web. In 2011, “Russian citizens took to Twitter to criticize contested election results… but it was soon neutralized by at least 2000 bot accounts swamping Twitter with nonsensical tweets, shutting down constructive debate” (Adee). This is noteworthy because we can infer that the Russian government deployed these bots to mask up the bad criticisms they were receiving through the web. They were able to actively censor the condemnations by the public without fully repressing it completely avoiding law violations. Supreme Court Justice Louis Brandeis defended Free speech in 1927 expressing the idea that in the marketplace of diverse viewpoints, the truth will always emerge. This concept, however, is now outdated because recent studies show “how credible people find a statement on Twitter depends most on how many times it is retweeted” (Adee). This misrepresents the moral consensus on which our country has been following for hundreds of years. There are endless solutions to this new alteration to society but a solution is to trust multinationals with corporate interests to monitor our updated moral agreement than to hide behind the same outdated defense of free speech.
Finding a new way of regulating the First Amendment is essential because it has entered a phase of enhanced globalization where contact with another person is virtually instantaneous. News can be shared to millions within seconds of release sparking global complications between communities and even nationally. Cultural codes are enacted based on social progression varying region to region; however, due to our highly politicalized society, conflicts arise from the ignorance of lawmakers despite the simplicity of the problem. A solution to this intricate problem is in addition to what is already written for the freedom of speech, there requires to be an additional subsection specify what is and what is not within a person’s rights when posting on the internet because this type of global connectivity was unheard during the drafting of this law. As long as there is room for interpretation, each member of society may post whatever they want on the internet. Nonetheless, in order to maintain a moral society, stricter cultural codes must guide users on what is appropriate for the public eye. Censorship is characterized by bad and good stemming from the relationship between the government and the media. There are many mistakes that governments try to keep hidden and when the media finds it, the chilling effect is in effect with the fear of governmental repercussions they do not report it. In contrast, the media may work coinciding with each other protecting national objectives like the Manhattan Project during the war period. Nevertheless, social media and reporting media should have different standards due to the fact that news outlets contribute more resources to fact-checking information before reporting. We see that the original belief of the marketplace of ideas, the truth will emerge is not true anymore. Many social media users find the certainty of certain ideas directly correlated to the number of likes or shares it holds. All in all, the availability of mass communication requires social media platforms to enforce stricter communitive code in which everyone must follow.
Bibliography
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Garry, Patrick M. "The Right to Reject: The First Amendment in a Media-Drenched Society," San Diego Law Review vol. 42, no. 1 (2005): p. 161-164.
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Bowens, Tyneisha “West Philly racist spotlight!”. Facebook. Facebook, 5 Oct 2017 Web. 7 Dec. 2017
Soul to Soul “Are we gonna talk about this truth or nah?”. Facebook. Facebook, 5 Oct 2017 Web. 7 Dec. 2017