Does the First Amendment Protect Free Speech or Threats and Scams?

Free Speech: The Points of Law

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The freedom of religion clause is outside the scope of this article. The First Amendment prevents Congress from passing a law abridging free speech. The amendment has no force over communications between individuals, employers, and employees or over state laws that censor speech.

Government Censorship. First Amendment law originates with the Federal Government’s and some states’ attempts to censor opponents’ speech to the United States entering World War I. The Espionage Act of 1917 made it illegal to interfere with the war effort, to provide military information to the enemy, or to give aid or comfort to enemies of the United States. By the 1920s, and the law was being applied to people who advocated socialism or communism. Several court cases reached the US Supreme Court. Eventually, in Brandenburg v. Ohio (1969), the court settled the issue of when the federal Government could censor free speech. Advocacy for an illegal action is not enough for a conviction because advocacy is free speech. Justice Douglas stated, ‘Government has no power to invade that sanctuary of belief and conscience’ (455). Government can only practise censorship when the speech creates a ‘clear and present danger’.

In practice, clear and present danger means that law enforcement seeks to be present at the time and place when the illegal act is going to occur or when advocacy is put into practice. For example, in 2022 and 2023, the Federal Government gained convictions under the Espionage Act against groups that had organised the 6 January attack on the US Capitol Building. A key point seems to be the tone of prior communications and that guns had been stashed in locations near the Capitol. Although law enforcement expected problems on 6 January, the organised groups did not violate the law until their protests became violent.

The Marketplace of Ideas. Chief Justice Oliver Wendell Holmes argued in Abrams v. U.S. (1919) that the test of speech should be its ability to gain adherents in the marketplace of ideas. Holmes explained his reasoning.

But when men have realised that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

The marketplace of ideas remains the cornerstone of First Amendment law. Through public discussion and debate, the argument goes, the people of the United States will arrive at a common solution to an issue, and that will be the basis of Congressional action.

When Holmes was writing, the mass media comprised local newspapers and a few national magazines. Abrams had practised his free speech by handing out pamphlets. Eugene Debs (249 U.S. 211, 1919) made speeches. Jacob Frohwerk (249 U.S. 204, 1919) published a German-language newspaper with a small circulation. Holmes’ marketplace of ideas was rarely more significant than a few hundred people and usually was an audience of a handful of people. As pointed out, today’s marketplace of ideas is worldwide, with speech frequently reaching thousands or even larger audiences. More importantly, the general public may reach a consensus on an issue, but the losers find each other on Facebook or Twitter and create their opposition community. According to the Department of Justice, many of the planners of the 6 January conspiracy communicated through social media (June 2022; November 2022).

Gatekeepers. Gatekeepers are the people who control the medium through which communication occurs. For example, if a person owns the property, that person is the gatekeeper who decides which political signs are put up on the property. The newspaper publisher is a gatekeeper; the radio station or television station owner is a gatekeeper. Gatekeepers used to be a small group of generally wealthy, respected citizens who controlled the flow of information in the community through the media they owned. Usually, the radical voices, the poor, and the members of diverse populations did not have access to a voice that would allow them to reach most people in the community unless one of the gatekeepers chose to give them a voice that the gatekeepers edited.

Social media has changed the dynamics of gatekeepers. Facebook, Twitter, and all social media have a term of service agreement that spells out what speech is permitted. Facebook, for example, does not allow nudity. Otherwise, what a person posts on Facebook or Twitter does not go through a second-party gatekeeper. The same goes for texting, posting videos, or emails. As a result, billions of social messages are sent annually that are self-censored unless a message is reported and one of the service providers removes the message.

When the mass media was radio, television, newspapers, and magazines, the gatekeepers had to keep advertisers happy because those ads paid the bills. The individual is the primary gatekeeper on social media, so the messages reflect the values and conscience of the individual users.

Time, Place and Manner. The Supreme Court has ruled that the state may restrict the time, place, and manner when speech occurs. Many cities require loud music to stop by midnight. In Madsen v. Women’s Health Center (1994), the court decided that a city could legally require demonstrators to remain at least 36 feet from a clinic providing abortion services. For a regulation to be constitutional, the state must prove and state what legitimate state interests are served by the regulation.

When Birth Control Information Was Censored. In the nineteenth century, one of the censors was the US Postal Service. The Postmaster could reject a piece of mail because it violated community standards. For a long time, information about women’s health and birth control information could not be sent through the mail. In Hannegan v. Esquire (1946), the Postmaster refused to permit a second-class mailing of Esquire Magazine because the Postmaster thought some articles were more appropriate for the men’s smoking room and were not suitable for ladies or children. The Supreme Court ruled that the Postmaster had no authority to prevent mailings unless they were obscene or fraudulent. Other rulings prohibit mailing child pornography and material that presents a clear and present danger.

First Amendment Rights Belong to the Publisher. The First Amendment rights of a mass medium belong to the person who makes the final publication decision. A writer for a newspaper has no First Amendment right to have an article published. Newspapers or magazines can refuse political advertisements, even if only one side can advertise (see Miami Herald v. Tornillo, 1974). However, radio and television stations come under different standards.

Tornillo applies to Facebook, Twitter, and all social media. Social media companies can deny service to anyone without cause because the First Amendment rights reside in the owner, not the users. They are privately owned, and the gatekeepers are the owners. Facebook and Twitter banned Donald Trump from their platforms, actions that did not violate his free speech.

Hate Speech. The Supreme Court has stated that hate speech is protected speech. In Cohen v. California (1971), the court ruled that obscene words were protected, specifically the f-word. In Chaplinsky v. New Hampshire (1942), the court did not protect ‘fighting words’. Justice Murphy explained when words became fighting words: ‘those which by their very utterance inflict injury or tend to incite an immediate breach of the peace’ (569). In R.A.V. v. St. Paul (1992), Justice Scalia struck down a law in St. Paul that prohibited the use of hate speech. The speech ban differed from fighting words because fighting words occur in a context where violence between participants is likely invoked by the speech. The hate speech ban prohibited language as a category of speech. Scalia explained the difference: ‘The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects’ (391).

Advertising. The Supreme Court brought advertising under the protection of the First Amendment in Virginia Board of Pharmacy v. Citizens Council (1976). The court stated: ‘It is clear, for example, that speech does not lose its First Amendment protection because money is spent to project it, as in a paid advertisement of one form or another’ (761). However, false, deceptive, or misleading advertising is not protected speech; therefore, advertising can be regulated to ensure it flows ‘cleanly’ (772).

Political Speech. The Supreme Court ruled that federal laws regulating or prohibiting political speech by some corporations and organisations were unconstitutional. Congress passed a law (2 U. S. C. §441b) in 2002 that limited the amount of political campaign contributions that unions, banks, and corporations could make and required that those expenditures be made public. In Citizens United v. FCC (2010), Justice Kennedy said the law was unconstitutional because it sought to regulate political speech and ‘political speech must prevail against laws that would suppress it’. The court recognised that corporations held First Amendment rights.

Opinion. In Gertz v. Welch (1974), the Supreme Court ruled that the First Amendment protected opinions. The court found that

Under the First Amendment, there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues. (pp. 340–341)

The court pointed out that false statements are inevitable in any public debate and are protected speech. However, the ‘intentional lie’ is not protected speech. Continued the reasoning: ‘Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues’ (p. 340).

The Radio Act of 1927. In the early days of AM radio, Congress passed the Radio Act. It was modified in 1934 to include television, FM radio, telegraph, and telephones. The Telecommunications Act of 1996 expanded the law to have the Internet. However, the legal concepts of the Radio Act remain the basis for regulating television, radio, cell phones, and the Internet.

The Radio Act stated that the airwaves could not be privately owned; the Federal Government owned them. Therefore, the Federal Radio Commission must license anyone using them, now the Federal Communication Commission (FCC). All cell phone providers require a license, as are all radio stations, television stations, and satellite transmissions, but not cable services. Therefore, cables do not broadcast through the airwaves.

In 2023, the FCC was asked to assign bandwidth to automobile manufacturers (Shepardson, 2023). Technology would be placed in cars to establish an emergency communication system on a set wavelength.

The Public Interest Standard for Broadcasting. The FCC requires all broadcasters to operate in the public interest, convenience, and necessity. Historically, the FCC decides what that language means, and the Supreme Court sided with the FCC authority in Red Lion Broadcasting v. FCC (1969). Essentially, broadcasters are required to provide programming that serves the public, and station programming cannot be used to push the political agenda of the licensee. In addition, hours of operation, frequency, and power are set by the FCC Congress passed a law requiring television stations to carry children’s programming.

The stations must turn their frequencies over to the Government in emergencies, such as a tornado warning or an Amber alert. The president could order all broadcasters to carry a message if there were a national emergency.

Stations must provide political advertising to all parties requesting time at the lowest advertising rate for national races—House of Representatives, Senate, and President. However, all of a station’s advertising spots could be purchased so that a speaker could be denied access.

Dirty Words. The Radio Act banned broadcasters from using language that was obscene or indecent. In FCC v. Pacifica Foundation (1978), the Supreme Court upheld the authority of the FCC to prohibit indecent language, specifically in this case, George Carlin’s comedy routine based on the seven words that could not be used on television. ¹ The court said in its decision: ‘Patently offensive, indecent material presented over the airwaves confronts the citizen not only in public but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder’ (p. 748).

Fairness Doctrine. The Fairness Doctrine existed from 1927 until 1987, when the FCC abolished it. The doctrine required all stations to provide free time to speakers who wished to respond to a speaker from an opposing side. For example, if a Republican candidate for office was interviewed for five minutes, the Democratic candidate could request equal time. Even if the Republican candidate paid for the television or radio time, the Democratic candidate would receive the time for free. Third-party candidates could be excluded unless that party received a large enough percentage of votes in a previous election. As a result of the doctrine, radio and television stations were politically neutral and were reluctant to discuss controversial issues because equal time might have to be provided for free.

When the Fairness Doctrine ended, the path was cleared for talk radio. Rush Limbaugh became a favourite syndicated radio commentator on conservative talk radio stations. On cable television, Fox News and MSNBC are political talk shows for their respective conservative and liberal perspectives.

Common Carriers/Social Media. Common carriers date back to the Interstate Commerce Commission regulation of transportation. The US Postal Service, UPS, airlines, and railroads are examples of common carriers. For example, a person ships illegal drugs to another person; both of those people are criminals. But, the postal service or railroad cannot be charged with a crime unless the carrier knew that drugs were being shipped. In effect, common carriers are not responsible for the contents of the packages they ship.

Congress decided that social media companies are, in effect, common carriers. Facebook cannot be sued for libel or held criminally responsible for what a user posts on a news feed. The social media provider is not part of the conspiracy, even though their services were used by the Oath Keepers and the Proud Boys leading up to 6 January. Congressmen have argued that social media companies should be held responsible for the consequences of posts. The counterargument is that social media companies must screen all messages, determine which ones represent a threat, and then deny service. More than a billion messages are sent around the world daily. ² Denying the common carrier status of Facebook, Twitter, and the socially mediated world would force them to close and cut the flow down to a trickle.

Knowing Disregard for the Truth. The communication creator can be sued for libel (printed or broadcast) or slander (spoken) if the communication damages a person’s reputation. The person suing has to prove damages and that the defamatory statement was false. If the person defamed is a public figure or political candidate, the person must prove malice. In Times v. Sullivan (1964), malice was defined as ‘knowledge that it was false or with reckless disregard of whether it was false or not’ (280).

Parents of some children who died at Sandy Hook Elementary could prove malice against Alex Jones, who repeatedly claimed on his syndicated radio broadcasts that the shooting was staged and did not happen. Parents sued and won a $965 million judgment against Jones (Slater, 2022). One parent described the harm caused by Jones’ broadcasts: ‘It is one thing to lose a child. It is quite another thing when people take everything about your boy who is gone, your surviving child, your husband, and everything you ever did on the Internet and harasses you’. In effect, the jury, in this case, ruled that Jones reported fake news, and he knew it was fake.

A similar claim that fake news constituted malice was made against Fox News. Dominion Voting Systems asked for $1.6 billion in damages after Fox News and its commentators claimed that the Dominion voting machines changed Trump’s votes to Biden’s in the 2020 presidential election. McGreal (2022) describes the basis of the lawsuit: ‘Fox News put a parade of Trump lawyers, advisers, and apologists front and centre over the following weeks to promote a myriad of conspiracy theories about how the election was stolen from Trump, including by rigging the voting machines’.

Privacy. Many social media companies provide free services and make profits by selling advertising targeted to the individual and by selling individual data to marketers. Advertisers can increase sales of the products advertised if the advertisers know who is looking to buy that product. But do not try to sell peppermint to a person who loves chocolate; offer the person chocolate. Internet searches, posts, and responses to posts of others provide indicators of what a person is interested in. Their private information is being collected and shared by collecting information on people.

The European Union (EU) has created rules to protect the privacy of Internet users who live within the EU. ‘Common EU rules have been established to ensure a high standard of protection for personal data everywhere in the EU’, according to the European Commission (2022). The goals are: ‘The EU GDPR [General Data Protection Regulation] ensures that personal data can only be gathered under strict conditions and for legitimate purposes. Furthermore, organisations that collect and manage your personal information must protect it from misuse and respect certain rights’.

According to information provided on the web by Thomson Reuters (2023), the United States has no federal Internet privacy laws. Instead, a ‘patchwork’ of state and federal laws provides limited protection. They describe the threat:

Digital footprints are everywhere. You are releasing every time you visit a website, enter your credit or debit card information, sign up for an account, give out your email, fill out online forms, post on social media, or store images or documents in cloud storage personal information into cyberspace. Who, other than the intended recipient, will receive or have access to the information you provided? Will it be shared with other parties? Your P.I. may be shared in ways you don’t expect or are unaware of. Your information may be at some risk because even the best information security programs are not 100% guaranteed.

Rich (2021) points out that the US Congress has considered a privacy law for over 20 years. Much debate has occurred, and many bills have been proposed without anything passing. Because no legislation has passed, consumers are responsible for protecting their privacy.

Obscenity. Content deemed to be obscene is not protected by the First Amendment, the Supreme Court ruled in Miller v. California (1973). To be obscene, the material must appeal to prurient interests, meaning the context is sexual. It must be patently offensive. It must be ‘utterly without redeeming social value’ (18). Actual sex acts, masturbation, bestiality, and excretory functions are considered obscene. Material is to be judged by applying local community standards.

Without much effort, a person can find pages and pages on the Internet of content that seems to fit the definitions spelt out in Miller. Research conducted by Graveris (2022) found that the three largest porn sites had 5.81 billion visits per month. Few prosecutors want to file charges as long as someone visits porn sites at home. No one seems to be harmed by viewing porn, and the costs of prosecution would take funding away from criminal investigations of felonies with victims. Plus, the porn industry has attorneys who specialise in the law and are not inclined to let a county prosecutor hurt their business. The only thing the porn site has to prove is that the images have artistic, political, or content-redeeming social value.

Hunter (2023) provided details on a new kind of porn. Artificial intelligence is being used to create porn. The new dimension is that a creator can use the image of a person found on social media and make that person the star of a porn film. Hunter explained the risks:

Now, thanks in part to new, easy-to-use artificial intelligence (AI) tools, anyone with access to images of a victim’s face can create realistic-looking explicit content with an AI-generated body. As a result, incidents of harassment and extortion are likely to rise, abuse experts say, as bad actors use AI models to humiliate targets ranging from celebrities to ex-girlfriends—even children.

Child Pornography. The Supreme Court ruled in New York v. Ferber (1982) that child pornography had no constitutional protection because the harm occurred to the child involved in the sex acts without regard to the actual speech. The person who creates child porn, the person who distributes it, and the person viewing it are all guilty of harming the child.

The Movie Ratings. The Motion Picture Association sets the age restrictions for movies voluntarily submitted for review. Theatres owned by the movie studios belonging to the association generally enforce the restrictions. The ratings are G for General Audience, PG for Parental Guidance Suggested, PG-13 for movies inappropriate for small children, R for movies that require a person to be 17 years old to view the movie or accompanied by a parent, and NC-17 requires the viewer to be 18.

These 20 legal concepts are the basis for censorship and speech regulation in the United States. One website reports that 165 countries have free speech in 2023. ³ The Committee to Protect Journalists (2019) listed the 10 countries with the most restrictions on journalists. Eritrea was listed as the most restrictive country in the world. Most of these legal concepts are based on Supreme Court rulings, which mean that neither the President nor Congress can change these concepts without the potential that the changes would be ruled unconstitutional. Or, the changes have to remain within the court’s legal reasoning. Or, the court will have to decide that communication processes have changed and the historical understanding of the First Amendment is no longer applicable.

The Harms and Threats

Hate Speech. The Southern Poverty Law Center (2021) tracks 733 hate groups in the United States. The centre identified more than 20 hate groups in California; every state had at least one group. Five California groups were chosen randomly for this discussion. The Realist Report (https://therealistreport.com/) calls itself an ‘independent media outlet’. Several articles on the website were about anti-Semitic topics. Proud Boys showed up in at least three locations in California. They are associated with 6 January violence, had a website dropped, and Facebook responded to a search with a warning. Californians for Population Stabilization has a Facebook page and a website (https://capsweb.org/). This group seeks to preserve the environment by limiting population growth, and the organisation blames immigration for population growth in the state.

Matamoros-Fernández and Farkas (2021) point out that social media and racism have become hot-research topics. They write: ‘Scholars have grown increasingly concerned with racism and hate speech online, not least due to the rise of far-right leaders in countries like the United States, Brazil, India, and the UK and the weaponisation of digital platforms by white supremacists’ (p. 206). They identify Reddit, YouTube, Snapchat, Instagram, Facebook, WeChat, WhatsApp, Twitter, Whisper, YikYak, and TikTok are among the platforms used for racist speech. They argue that ‘racism on social media is ordinary, everyday, and often mediated through the visual’ (p. 218).

Castaño-Pulgarín et al. (2021) define hate speech ‘as any communication that disparages a person or a group based on characteristics such as race, colour, ethnicity, gender, sexual orientation, nationality, religion, or political affiliation’ (101608). Some hate speech calls for violence, and others seek to create intolerance and prejudice. Their research found that Islam was the most targeted religion for hate speech. Black and indigenous people were attacked by people claiming whiteness as the superior race. Political disagreements led to hate speech in many places around the world. Sexual orientation and women were often the basis for hate speech. They argue that one of the challenges of hate speech on social media is drawing the line between free speech and recognising that people have a right to hate. However, the problem is significant because

cyberhate, in general, seems to be amplified by the use of the Internet and social networks, resulting in the proliferation of stereotypes and worse damage. The relevance of this lies in its real effects: hate crimes, offline aggressions, discrimination, racist attitudes, democratic consequences, exacerbation of gendered violence, among others, which affect coexistence and mental health of victims, bystanders or perpetrators.

Guiora and Park (2017) point to another type of hate speech. Palestinians used social media to encourage violence against Israelis. One Facebook post showed Israelis run over in the street as part of a terrorist attack with a message encouraging Palestinians to run more Israelis over. They also discussed a case where a university student celebrated the death of a police officer who the social media user believed deserved to die. They argue that both speech occasions are protected by the First Amendment based on rulings by the Supreme Court.

Any law or regulation on hate speech would have to overcome the rulings in Brandenburg, Chaplinsky, R.A.V., and Cohen. The first obstacle would be to define speech that is legally hate speech and to define speech that is not hate speech. Vagueness in the definition would be unconstitutional. False statements are protected unless the malice standard was adopted. It is difficult to prove that the person intentionally lied. Glader (2022) reports that 90% of libel suits are unsuccessful, which indicates that meeting the legal standard for hate speech may be difficult. The court has said that opinion is protected speech, so any standard of hate could be proceeded by ‘In my opinion…’.

Hate speech is not constitutionally protected when the speech creates clear and present danger. The Oath Keepers were convicted of seditious conspiracy when their social media communications led to guns being brought to Washington, DC, on 6 January and an organised, violent attack on the Capitol Building. A Justice Department (2023) statement explains the convictions. ‘Beginning in late December 2020, via encrypted and private communications applications, the defendants and various co-conspirators coordinated and planned to travel to Washington, DC, on or about 6 January 2021, the date of the certification of the electoral college vote’, according to the statement.

The defendants made plans to bring weapons to the area to support the operation. The co-conspirators then travelled across the country to the Washington, DC, metropolitan area in early January 2021, with paramilitary gear and supplies, including firearms, tactical vests with plates, helmets, and radio equipment.

Three options are available. All messaging services and social media companies are privately owned and are under no obligation to provide free speech to everyone. They could hire the staff required to eliminate speech that represents a threat in the opinion of the corporations. Some staffing is currently in place, but other service providers permit speech that one provider blocks. Congress has discussed removing the common carrier status for Internet companies, which allows individuals harmed by speech to sue the companies for damages. The corporations might respond by charging subscription fees and no longer providing free services.

Broadcasters did not have free speech rights and must operate in the public interest. If the entire Internet and Wi-Fi world were legally classified as broadcasters, then the FCC could impose the public interest standard and remove the licenses of violators. Plus, the FCC could prohibit indecent speech and obscenity. The Communications Decency Act of 1996 required all Internet communication to be suitable for children. The Supreme Court ruled sections of the law unconstitutional in Reno v. ACLU (1997) because the language prohibited adults from seeing material that was constitutionally protected. As a result of the case, websites providing adult content are only available to those 18 or older. One problem with this approach is that the Internet structure is privately owned, unlike the public airwaves. The Federal Government could buy the Internet at around $50,000 per mile.

The European Parliament took a third option to control hate speech. The Digital Services Act and Digital Markets Act were passed in 2022. ‘Together, the measures would force the world’s largest tech companies to tackle harmful content more aggressively, disclose more data to external researchers and make their services interoperable with competitors’ products’, reports Lima (2022). ‘They would also prohibit large companies from giving their products preferential treatment and block app stores from requiring developers to use their payment systems’. Elon Musk, who owns Twitter, was warned that his company might not do enough to control online content (Reuters, 2023). Since social media companies do not want to create one form for Europe and another for everyone else, Facebook, Twitter, et al., may have to regulate speech because the European Parliament requires it, even if such regulations would be a First Amendment issue if the US Congress passed similar laws.

After Elon Musk reinstated 10 Twitter accounts that had been suspended, the number of people using Twitter increased. As a result, ad revenue for Twitter may have increased by about $19 million annually, according to Lorenz (2023).

Fake News. Aldwairi and Alwahedi (2018) define fake news as articles intentionally written to deceive people. Sometimes the motivation is to draw the curious to the website. Such curiosity helps pay the bills for social media sites like Facebook. Gelfert (2018) argues that the Brexit vote in England and the campaign of Donald Trump used fake news to disrupt the political discussion and deceive the voters. Fake news aims to make false claims that will lead people to vote a certain way by confirming their beliefs. ‘Purveyors of fake news have begun to employ strategies of bringing about belief and ensuring continued propagation of their stories (e.g., via “sharing” on social media) by manipulating their consumers’ preexisting cognitive biases and heuristics’, explains Gelfert (p. 111). Vosoughi et al. (2018) point out that much of the fake news is spread by robots. Further, they argue:

As politicians have implemented a political strategy of labelling news sources that do not support their positions as unreliable or fake news, whereas sources that support their positions are labelled reliable or not fake, the term has lost all connection to the actual veracity of the information presented, rendering it meaningless for use in academic classification.

Allcott and Gentzkow (2017) found several websites with names meant to mimic accurate news sources, such as the fake WashingtonPost.com.co compared to the real www.washingtonpost.com. Another source of fake news was foreign locations that generated fake news to attract people to pages with advertising. They argue that fake news works because people looking for news on social media may not be interested in news programming. They explain: ‘People who get news from Facebook (or other social media) are less likely to receive evidence about the true state of the world that would counter an ideologically aligned but false story’ (p. 221). In the 2016 election, they found fake news pushed the campaigns of both Hillary Clinton and Donald Trump. Their survey responses indicate that 28.6% used websites and social media as their main source of election information.

The Center for Information Technology and Society (CITS) ⁴ at UC Santa Barbara is worried that fake news further divides the American public into us versus them political argument. The website also points to specific cases like Pizzagate, where a person attacked a pizza place because fake news said it was where a paedophile ring operated. Russians created political advertisements to harm Hillary Clinton’s campaign in 2016. Cambridge Analytica compiled data from Facebook on 87 million users so the Trump campaign could better target people with their messages. Fake news became the basis for attacks on the Rohingya ethnic group in India. CITS concludes: ‘Fake news consistently undermines citizens’ ability to participate in the governance of their country and make important decisions regarding the fate of their nation’.

The Supreme Court stated that the First Amendment does not protect the intentional lie. But attempts to regulate or censor fake news would face many of the same hurdles of hate speech. Fake news would have to pose a clear and present danger to be censored by the Government. Some social media groups attempt to censor articles, while others may even encourage fake news that furthers the agenda of the social media site.

The most repeated fake story is that Trump won the 2020 election campaign, and his victory was stolen. The court clarifies that campaign and political speech have the highest level of First Amendment protection. No legal remedy exists to prevent people from perpetuating the story. However, libel might be an option, particularly for private individuals pulled into the story by Truman. The Truman campaign released a video that showed Georgia poll worker Ruby Freeman with suitcases that the campaign claimed were phoney ballots (So & Szep, 2021). They were threatened by-election deniers and had to hide for safety. They could easily prove damages, and careless disregard for the truth should not be difficult to prove in court since the video shows the suitcase but no ballots. The Alex Jones cases demonstrate the potential of using libel to punish people pushing lies.

Twitter received a yellow card from the EU for not doing enough to stop disinformation (Chee, 2023, p. 1). Twitter did not do give enough authority to its fact-checkers. The EU also warned TikTok that it needed stronger disinformation standards (Chee, 2023, p. 2). However, the Chinese Government is stepping up its efforts to spread disinformation. The Government created the Wolf News company to spread news created with AI. As Antoniuk (2023) reported, AI can create fake news faster and on a greater scale than humans could do it.

Realistically, fake news is going nowhere except to more and more corners of the Internet.

Spam. Cveticanin (2023) reports on the size of the email spam problem. More than 122 billion spam emails are received daily. About one-thirds are advertisements for legitimate products. About the same percentage is for adult content. More than 25% offer financial services, some legitimate and some fakes. Only about 1 in 12 million spams are replied to, but the costs of sending them out are insignificant. About 2.5% are harmful. The most significant number of spam emails came from the United States, about 8.4 billion monthly, compared to 8.2 spam emails from China. Almost all harmful effects only occur with the help of the receivers. Cybercriminals are overriding the protections of ChatGPT, an AI software, to churn out spam (Check Point, 2023). The Bipartisan Policy Center (2023) issued a report warning that the United States faces new threats. Stated the report: ‘The United States is facing increasing cybersecurity risks, posing significant threats to businesses and individuals alike’. Many of these threats come from other nations: ‘Perceived anonymity, slow and imprecise attribution and the remote nature of the attacks make cyberattacks attractive to nation-states’ (p. 5).

Sending spam emails is legal if the national standards set down in a 2003 law are followed, according to the Federal Trade Commission. ⁵ The law covers the following: ‘any electronic mail message the primary purpose of which is the commercial advertisement or promotion of a commercial product or service’. False, misleading, or deceptive emails are subject to fines. In addition, the emails must include a mailing address and a means to opt-out and no longer receive more emails.

Scams. Fletcher (2023), reporting for the Federal Trade Commission, said nearly 70,000 people were cheated out of $1.3 billion by scammers using dating apps, text messages, and social media. Scammers generally begin by offering friendship. Friendship becomes romance, the online romancer is ill, hurt, or a family member is in trouble. The lover needs money. A favourite is to become friends and then offer a great investment opportunity. Sextortion is another scam. Fletcher explained that send your lover an intimate photo, and then the lover threatens to send it to everyone in your address book.

In one crypto investment scam, investors lost around $500 million when locked out of their accounts. In another case, the perpetrator accessed another person’s cell phone number and used it to take over social media accounts. Cox (2023) explains the risks:

In one case, a victim declined to provide [the perpetrator] with $1,000 to get her account back. [The perpetrator] then said he would return the account if the victim started a video call and stripped for him instead, according to the complaint. In that instance, the victim compiled while [the perpetrator] masturbated, the complaint adds.

Hacking. Attempts to gain access to a computer without permission could violate four federal laws, according to Rendelman (2022), who specialises in computer law. However, hacking a computer without causing harm is not illegal. In addition, testing weaknesses in a computer system is not unlawful. ‘[B]ut if you’re hacking to access someone else’s private information, then yes, you’re almost certainly breaking the law’, writes Rendelman. Using information obtained through hacking also is illegal. Tunggal (2022) indicates that hacking cost $4.35 million in the United States in 2022. Servers are the most frequent targets. About 44% of companies report that they were hacked one to five times in the previous year, according to Petrosyan (2022). Leeson and Coyne (2005) said any major institution is a target of hackers. They write: ‘This means that all of your most sensitive information—from credit card numbers and checking accounts to medical records and phone bills—is accessible for viewing, stealing, or manipulating to anyone with a PC, an Internet connection, and some computer know-how’. DraftKings, FanDuel, and BetMGM, were hacked in 2023, and personal data was stolen, including identity photos, names, addresses, email addresses, phone numbers, and the last four digits of credit card numbers. Several California hospitals were hacked, and the personal data of 3 million patients were taken (Hardcastle, 2023).

The Russians, Iranians, and Chinese are among the countries trying to hack into US government computers and those of major corporations, claims Zetter (2022). The US government also engages in hacking for national security reasons. Zetter explains:

The National Security Agency and Central Intelligence Agency both have sophisticated hacking divisions with individual teams focused on specific countries or regions to collect intelligence. In addition, US Cyber Command, launched in 2010 as part of the Defense Department, hacks networks for battle-related offensive operations, not intelligence collection.

Selling Private Information. Computer data mining allows companies to identify people with similar habits, values, and buying preferences. Advertisers can then target products and messages to that specific group of people. Mass marketing to millions of people at one time—like a network television advertisement—requires many advertising buys and then few sales. Data mining improves the chances of making a sale and reduces advertising costs. Much of the data being mined comes from Google, Facebook, and Amazon data.

TikTok was fined $5.7 million for violations of the Children’s Online Privacy Protection Act (Matsakis, 2019). Specifically, TikTok allowed children under 13 years old to open accounts. TikTok now requires age verification, or children are directed to age-appropriate videos, and they cannot load videos. McCashin and Murphy (2023) found in their research that TikTok videos by professionals may aid children with mental health issues. However, they warn there are no restrictions on who can post. ‘This presents a dilemma to the wider TikTok audience—to what extent can a pre-teen user base distinguish between reputable mental and public health professional information versus non-professional equivalents?’ (p. 302).

Rust et al. (2017) summed up the privacy issue:

The World Wide Web has significantly reduced the costs of obtaining information about individuals, resulting in a widespread perception by consumers that their privacy is being eroded. The conventional wisdom among the technological cognoscenti seems that privacy will continue to erode until it essentially disappears.

Reporter Bob Sullivan of NBC News (2000) explained some privacy risks. His article pointed to an agreement among pharmaceutical companies to share information on how customers used their websites. Others try to hack information to access bank accounts and other financial information. Most people have a significant history online available to anyone who searches for them. People may have personal data stored with a reputable company, but that company is hacked and the information stolen. Sullivan described the dilemma; ‘Websites want to know all they can about you; consumers generally want to share as little as possible’.

The most famous example was the 2017 breach at Equifax, in which criminals stole the social security numbers and credit card information of 147 million people (Federal Trade Commission, 2022). The Commission explained the information collected:

Equifax is one of three national credit bureaus. These companies collect information about your credit history, such as how many credit cards you have, how much money you owe, and how you pay your bills. Each company creates a credit report about you and then sells this report to businesses that are deciding whether to give you credit. You cannot opt out of this data collection. However, you can review your credit report for free and freeze your credit.

Child Protection. As already explained, the Supreme Court recognises that children should be limited in what content they have access to. However, some in Government and Congress would restrict social media accounts to those 13 or older. Surgeon General Vivek Murthy said that social media creates a ‘distorted environment’ that could harm children (Lima, 2023). A bill was introduced in 2023, setting the minimum age for social media use at 16. Age confirmation, however, is almost left to trusting the user to tell the truth. NetChoice ⁶ has opposed a California law that the organisation said overstepped the authority of the Government. NetChoice opposed the law because it violated the First Amendment rights of children and parents, because parents should be deciding for their children, and because the law required service providers to collect information on children and store it. The website states: ‘Parents and guardians are best suited to decide how their families will have an online presence. AB 2273 [the California law] takes away that freedom and puts it into the hands of the state’.

Algorithms. Petrescu and Krishen (2020) contend that ethical solutions to social media problems require understanding algorithms. They write: ‘As social media offerings continue to develop, effective collaboration among all stakeholders can enable a broader ecosystems view of social media platforms; these discussions can identify a middle ground on privacy, ethical platform design, monetised services, and consumer awareness’ (p. 187).

Oremus et al. (2021) reported how Facebook uses algorithms. Each person with a Facebook account is tracked to learn the person’s patterns and tendencies. Because of the algorithm, ‘each user’s feed is highly personalised to their behaviours’. The algorithm’s goal is to make using Facebook rewarding for the individual. Accordingly, Facebook puts on the user’s newsfeed information from friends and family, viral memes, and divisive content Facebook has identified as a subject you would be interested in. The article explained the risks: ‘For a subset of extremely partisan users, today’s algorithm can turn their feeds into echo chambers of divisive content and news, of varying reputability, that supports their outlook’. Facebook employees make two important decisions: they select the data sources and decide the goals.

Tufekci (2015) explains the risks to Facebook users: ‘News and updates on Facebook influence the tenor of the viewing Facebook-users’ subsequent posts-and that Facebook itself was able to tweak and control this influence by tweaking the algorithm’ (p. 204). In effect, the algorithm employed by Facebook to a user serves as the gatekeeper in determining what the person is most likely to view on Facebook and what is hidden from view. Tufekci explains the harms: ‘Complex, opaque and proprietary algorithms are increasingly being deployed in many areas of life, often to make decisions that are subjective in nature, and hence with no anchors or correct answers to check with’ (p. 217).

A former Facebook employee, Frances Haugen, told a US Senate subcommittee that Facebook seeks to maximise profits through its algorithms, even if it harms children, creates social divisions, or harms democracy (Allyn, 2021). Haugen told Senators: ‘The result has been more division, more harm, more lies, more threats, and more combat. In some cases, this dangerous online talk has led to violence that harms and even kills people’, Haugen testified.

Most social media companies employ some version of an algorithm. In 2021 and 2022, legislation was introduced in Congress to regulate algorithms. The 2021 legislation would have allowed people to control the algorithm. The Algorithmic Accountability Act of 2022 gave more control to users, called for more transparency in how algorithms are used and gave a more significant role to the Federal Trade Commission to oversee practices.

Would such legislation solve the problems? One consideration is that social media users would rather see content they are interested in than scroll through dozens of meaningless posts. Second, only about 1 per cent of users even read terms and conditions (Sandle, 2020), and it seems unlikely most people would study the technical language of algorithms. The legislation would have to clearly state the legitimate state interest the Federal Trade Commission serves. In short, people want to make using social media easy, and the service providers want to keep people on the site for the longest time possible. No law can change those dynamics.

Planning Violence. Patton et al. (2014) found a link between homicide and suicide among young people and online use. Research indicates that 90% of teens use social media, and 70% have an account. They cite a study of 4,441 people between the ages of 10 and 38, in which 20% experienced online bullying. Research indicates a connection between face-to-face bullying and cyberbullying.

Patton et al. also found that gangs are using social media. ‘Gangs engage in several online activities including but not limited to posting videos, watching videos, announcing activities, inciting dares, making fun of a recent homicide or victimisation, displaying weapons, and discussing and displaying illegal and other substances’ (p. 4).

Social media exposes teens to violence, alcohol, cigarettes, drugs, and sex. For example, another study ‘confirmed that a significant number of adolescent girls were engaging in sexual risk behaviours when online and continued this behaviour offline, which put them at a heightened risk of sexual violence’ (p. 3). Suicide is another topic discussed among teens on social media.

Mengü and Mengü (2015) point out other ways violence appears on social media: ‘sites for women and child porn, visual material including excessive violence, campaigns of abuse towards certain people and institutions as well as black propaganda, attributing negative aspects, misdirecting people by assuming fake identities, different ways of theft in social media’ (p. 211).

Extremist groups use social media to recruit and organise. Alvari et al. (2019) and Awan (2017) detailed how ISIS used social media to recruit people in England to join the group. Amit et al. (2021) explained how extremists in Bangladesh used social media to plan a series of bombings. Bertram (2016) researched how extremists used social media to bring radicals together, create discussion groups, provide training, share material, and coordinate activities. ‘The benefit of the Internet as a communication apparatus is clear, as simplified communication with little oversight is exceedingly beneficial to clandestine activities’, Bertram writes (p. 228).

According to the Supreme Court, branches of Government cannot surveillance these examples of violent speech on social media without a court order based on probable cause that a crime might be committed. The speech is not illegal until it becomes a clear and imminent danger, which means a target has been identified, resources collected to carry out the violence, and a plan is in place to act violently. If 6 January is an example, enforcement knew that violence was possible. Still, they could do nothing until the windows on the Capitol were smashed, and the police officers on duty were overwhelmed.

Cybersecurity. Starks (2023) reported on Cold River. The Russian group tried to hack three nuclear labs in 2022. Israel and the United States have been hacking Iranian nuclear facilities to slow down the development of that country’s nuclear weapons. North Koreans got into an Indian nuclear facility. Hacking has been part of the war between Russia and Ukraine. Someone got into a German facility. The Nuclear Regulatory Commission has regulations requiring nuclear facilities to have high-level computer security.

A North Korean hacking group stole 100 GB of data from private research facilities. Financial institutions in Great Britain have been penetrated. REvil made a random attack in 2021 on 200 institutions in the United States and worldwide. One of the group’s victims paid $11 million. When Russian law enforcement raided the group, they recovered $6 million. Waldman (2023) identified the 10 biggest hacking operations of 2022. They included the San Francisco 49ers, a county school district in California, Opus Interactive, Cisco, Entrust Corporation, Macmillan publishers, a Los Angeles school district, a Chicago-based hospital chain, an Internet provider to countries in Arkansas, and Rackspace Technology. Leeson and Coyne (2005) found that hacking has cost companies a trillion dollars.

Webroot ⁷ identifies some of the threats to individuals who are hacked. They include stealing usernames and passwords, access to credit cards and bank accounts, making purchases in the victim’s name, selling your information to others, and using a person’s Social Security information. The site points out that people may not know they have been hacked until unexplained charges show up.

Congress passed a law in 2018 that permits the Department of Homeland Security to help local governments create election security. The Computer Fraud and Abuse Act of 1986 has led to thousands of convictions. However, US law enforcement has little authority to arrest hackers in foreign countries unless other countries cooperate. An INTERPOL operation in 2021 led to the arrest of more than a thousand people in 20 countries.

Foreign Actors. Other countries interfering in a country’s elections are common. The United States interfered in elections in Nicaragua (Robinson, 2019). Several foreign groups meddled in the 2004 election in Ukraine (Shulman and Bloom, 2012) and Lebanon (Corstange & Marinov, 2012). Baines and Jones (2018) point out that France interfered in a 1796 election in the United States. The US Senate wrote a four-volume report on Russian interference in the 2016 election. ⁸

Some of the Russian attempts to influence voters were through social media. Jamieson (2018) analysed the Russian effort. Russians used Facebook, YouTube, Twitter, and Instagram. There were 1.4 million election tweets on Twitter, reaching 288 million accounts. On Facebook/Instagram, the Internet Research Agency, a Russian troll farm, placed 3000 ads; 11.4 million people saw the ads. Russians loaded 1000 videos on YouTube. Russian bots forwarded Trump’s tweets 470,000 times. ‘In 2016, the social media outlets not only were not programmed to privilege accurate, vetted information but also were and remain especially hospitable to fear-driven, anger-based, extreme content, particularly if it is visually evocative and congenial to the user’s biases’, writes Jamieson (p. 13). The Russians used misdirection and impersonation to make it appear Americans made the social media posts. Most of the material was micro-targeted to reach specific individuals or groups. In the posts, the enemies were Muslims, illegal aliens, Black Lives Matter, demanding women and gun rights, and Hillary Clinton. The good guys were white males, Donald Trump, Christians, veterans, and workers threatened by trade deals. Jamieson explained how the ads worked: ‘Because both framing and priming work by making concepts salient, a natural advantage goes to the camp better able to weight the message environment inhabited by susceptible voters with messages discrediting the opponent’ (p. 45). The Russian interference may have decided the election. ‘Unsurprisingly, as I noted earlier, in 2016, the citizenry included higher-than-average numbers of independents, conflicted voters, and late deciders—groups susceptible to agenda setting, framing, priming, the weighting of the discourse in their environment, and contagion’ (p. 57).

Contributions to campaigns from foreign nationals are illegal. To quote the Federal Election Commission: ‘Federal law prohibits contributions, donations, expenditures (including independent expenditures) and disbursements solicited, directed, received or made directly or indirectly by or from foreign nationals in connection with any federal, state or local election’. ⁹ However, this law applies to campaigns and candidates. If the Russians paid a citizen to post something on Facebook or Twitter, no laws would have been broken. Plus, it would be difficult for the FBI or the FEC to investigate millions of social media posts to identify which ones were political, who posted them, and whether that person did so for pay. Plus, anyone sharing a post would be outside of the law. Homeland Security can help protect election software, but stopping social media and political persuasion would be impossible if a concerted effort was made.

Censorship of Political Speech. Donald Trump filed class action lawsuits against Facebook, Google, and Twitter, claiming they censored him after they banned him from posting after 6 January. At a news conference, Trump explained his objection: ‘We are demanding an end to the shadow-banning, a stop to the silencing, and a stop to the blacklisting, banishing, and cancelling that you know so well’ (Upadhyay, 2021). A California judge dismissed the allegation that the companies were acting as state actors when they banned him, and, therefore, they violated his First Amendment rights (Zakrewski, 2022). Trump is one of many extremists arguing that social media companies should be prohibited from labelling or banning their posts. However, as the judge said, social media corporations are private enterprises not covered by the First Amendment.

Corporate Speech. Jamieson (2018) explains why political messages work.

In short, campaign communication can produce agenda-setting and framing effects. Our findings also confirm that messaging can change the standards of voters’ understanding of the contenders, their stands on issues, and their character and temperament. In short, the amount and relative weight of messaging matter. (p. 52)

Spending on media messaging will not change the votes of people who have already decided. According to a Gallup poll (Jones, 2023), Independents were 41% of those polled, while Republicans and Democrats were each 28%. So, by the Gallup data, only a handful of voters are of a mind to be convinced who to vote for. Accordingly, what political messaging achieves is convincing people to turn out to vote. In 2020, 66.8% of eligible people voted in the presidential election, according to the US Census Bureau. ¹⁰ In 2012, 58.0% voted, and in 2008 and 2016 were between those two percentages. In light of the divided party split, getting the vote out can determine who wins.

According to the Federal Election Commission, the 2020 presidential election costs nearly $4 billion. ¹¹ If all elections are included, total expenditures will reach $14.4 billion. ¹² Eighteen groups contributed at least $5 million to Joe Biden ¹³ ; Trump had 10 contributors who donated at least $5 billion. ¹⁴ According to Tindera (2021), the most significant contributor to all campaigns in 2020 was Michael Bloomberg, a Democratic candidate for president in the primaries. He spent $1.2 billion. All 20 of the biggest donors donated at least $14 million.

To repeat a point already made, the Supreme Court ruled that Congress cannot restrict the political spending of individuals or corporations. In Citizens United v. FCC (2010), Justice Kennedy said the law was unconstitutional because it sought to regulate political speech and ‘political speech must prevail against laws that would suppress it’.

Levitt (2010) believes that Citizens United has only had a ‘mild’ effect on political advocacy (p. 217). He argues that the decision had a ‘comparatively incremental increase in political speech the decision actually permits’ (p. 218). Levitt sums up his argument:

There is no question that direct corporate political spending will raise the scale of the arms race that candidates perceive themselves to be in, and will raise candidates’ anxiety about the need to close any fundraising gap. In the short term, particularly if public funding does not meet a perceived gap, it is likely that incumbents, feeling pressure from corporate spending, will increase the time they spend fundraising and decrease the time they spend legislating.

Epstein (2011) points out that the court did not like the time restrictions in the Campaign Reform Act. The law prohibited ‘electioneering communication’ by a union or corporation within 30 days of the primary or 60 days of an election (p. 642). To Epstein, the logic of the law was flawed because it specifically targeted political communication, which is the point made in the court’s decision. Epstein argues critics of the decision miss the point: ‘In the end, it is the citizens that will drown out the corporations as if they wanted to speak, which they do not’ (p. 661).

The reality remains. Campaigns cost thousands to billions of dollars. Corporations and the wealthy who contribute big money can impact election results. Their spending can convince some people to go to the polls and persuade others to stay home because they have no stake in the outcome. In an ideal democracy, people see it as their civic duty to vote and become informed about the issues and the candidates. But, as the Declaration of Independence states, ‘Governments are instituted among Men, deriving their just powers from the consent of the governed’.

Discussion

In 1927, Congress recognised that radio broadcasting was a new kind of speech that required regulation, unlike those placed on speech activities, newspapers, or magazines. In 1934, Congress expanded the legal framework on radio broadcasters to cover television regulation, an emerging new form of communication. The Telecommunications Act of 1996 was more concerned about monopoly than seeking to write regulations covering communication through the Internet, but its language borrowed heavily from the Radio Act. The Supreme Court has acknowledged that radio and television are different media from individual speech and printed materials and require a different application of the First Amendment. The time has come for Congress and the Supreme Court to determine appropriate regulation for the Internet and related social media communications.

Several factors make Internet communications (IC) different from speech and newspapers. In this section, Internet communications include social media. (a) The gatekeeper for most IC is a private person. Social media companies occasionally censor or regulate content posted by an individual, but it is a small percentage of all IC. (b) IC reaches an audience of billions and provides a marketplace for billions of people to communicate. (c) The size of the Internet is staggering, with one estimate putting the daily total of people using IC at over five billion. (d) Neither law enforcement nor governments have the resources to monitor the entire Internet for problems. (e) IC provides a means to anonymously threaten individuals, celebrities, and even governments. (f) Obscene, indecent, and harmful content can be delivered to anyone. (g) The Internet is a system of interconnected computers and systems, making it possible to hack into most systems from a safe distance. (h) The recipient of IC is presented with false and misleading information regularly. (i) Advertising, some subscription services, and selling personal information is the funding sources for most IC corporations. Investigations of bad actors usually do not occur until the harm has occurred. (j) National security, perhaps even world peace, could be placed at risk by IC.

On the positive side, IC has created an unbelievable marketplace of ideas. (a) Most people in the world can participate in the marketplace of ideas without much cost. (b) People have access to more information and knowledge than at any time in history, and most of it is free. (c) State censorship is difficult to achieve. (d) A physically isolated person can have daily friendships, news, and entertainment.

A Discussion of Solutions

Congress and the courts need to recognise that historical and legal definitions of First Amendment rights are not adequate to protect people from the worst harms of IC in the Radio Act of 1927, the federal Government assumed control by declaring that the airwaves belong to the Federal Government. Similarly, Congress needs to write legislation that declares that all Internet service providers, social media corporations, and cell phone service providers are public service providers. This would be similar to what occurred to regulate railroads in the 1800s. Private corporations owned the railroad companies, but the Interstate Commerce Commission regulated charges and services.

Either the Federal Communication Commission could be the oversight agency, or a new one could be created. The oversight would require Internet service providers, social media corporations, and cell phone service providers to operate in the public interest. An oversight could receive and investigate complaints and impose penalties on the providers that failed to follow government regulations and laws. IC providers could be sued by individuals or institutions damaged by irresponsible IC communications. Federal oversight would be responsible for guaranteeing that all users received equal access to services. Should a provider fail to serve the public interest, then the provider could lose the IC license to operate. The Government would oversee auctioning the license to a new provider. Providers could appeal the actions of oversight in federal court.

These changes would not solve all problems, but they would place first responsibility on users and provide them a legal means to sue for damages, secondly, responsibility would be on providers, and lastly on oversight, who would have the resources of the Federal Government available if required. The current legal framework of the First Amendment provides a way to adequate that framework to fit the communication processes of a new medium.