Q&A: Free Expression

 By Steven P. Aggergaard
Attorney at Law

The United States Constitution is a remarkable document that protects a wealth of liberties — among them, free expression.  The First Amendment forbids government from passing any law that abridges freedom of speech or freedom of the press, including speech and press on the Internet.

But the protections are not absolute. No online communicator should assume that his or her Internet use or Internet postings are constitutionally protected. Here are some answers to online communicators’ common questions. What follows is not legal advice. As with any legal issue,
each set of facts must be analyzed under the specific law that applies.  If you have a Minnesota-related issue, e-mail me (saggergaard@yahoo.com) or call me (651-402-8505).  I am happy to listen to your concerns free of charge.

Under free speech laws, I’m free to say whatever I want, right?
Wrong! Although the federal and state constitutions as well as a variety of statutes and ordinances generally protect your right to express your views, there are many, many situations where speaking your mind online or elsewhere can result in you being sued or prosecuted as a criminal.

Wow.  I thought the First Amendment protected everybody everywhere, including on the Internet.
The First Amendment does apply to expression on the Internet. But it applies only when government takes action that restricts that expression. 

The First Amendment does not protect me if I blog about my neighbor, or my boss?
It might not, and this is where things get tricky. The First Amendment forbids government from passing and enforcing laws in ways that unreasonably restrict speech. For example, a state’s defamation law cannot be so strict that it scares people into not posting things on the Internet because they fear being sued. Specifically, the First Amendment probably would prohibit Minnesota from passing a law requiring bloggers to prove the truth of their postings.

Would the First Amendment prevent my employer from firing me for blogging at work?
No. Blogging on work time, or even during your lunch break, are actions that are unrelated to what you say on your blog.  In general, the First Amendment protects expression, not action. Using work computers for non-work reasons might be grounds for being fired.

OK, I’m blogging about work, but not at work. Will the First Amendment prevent my boss from firing me?
Probably not, although your union contract or laws unrelated to the First Amendment might protect your job.

But I work for the government.
It is true that government employees have greater free speech rights than their private-sector counterparts. For these people, blogging about work–but not at work–might be protected by the First Amendment, depending on what the blogger says and whether an employment contract or employee handbook exists.

What about the state constitution?
Minnesota and almost all other states have language in their state constitutions that protects free expression. Some states interpret their constitutions to provide protections to speakers greater than what the First Amendment provides, but Minnesota is not among them. However, because the Internet crosses state lines, state constitutions are ill-suited to protecting online speech.

Does the First Amendment protect online pornography?
Generally, yes. Much pornography is protected by the First Amendment.  But “obscene” materials and child pornography are not.

What is “obscene”?
According to the United States Supreme Court, which has the final say on the First Amendment, material is obscene if it (1) appeals to the “prurient” interest in sex according to “community standards,” (2) portrays sexual conduct in a “patently offensive way,” and (3) lacks serious literary, artistic, political, or scientific value.

Um, OK, but I’ve received obscene pictures in my e-mail inbox as unsolicited spam.  Yuck.  There ought to be a law.
By most people’s estimations the Internet is loaded with obscenity, although it is not clear what “community standards” apply to the Internet. Much obscene material is stored on servers overseas, where the First Amendment does not apply.

What about child pornography?
The First Amendment protects neither the production nor possession of
child pornography, regardless of whether the pornography is obscene. The theory is that because it is illegal to force children to have sex, photographs depicting this behavior also are illegal. However, the First Amendment protects “virtual” child porn such as drawings, as well as written prose about children involved in sex.

You’ve got to be kidding. The First Amendment’s “framers” must be rolling in their graves.
They might be. The First Amendment was enacted first and foremost to protect speech about politics, not porn.

Speaking of politics, my friend runs a blog advocating for the entire Minnesota Legislature to be removed from office. Is this protected expression?
Probably, unless your friend expressly advocates the imminent and lawless overthrow of the Minnesota Legislature in a way that makes lawless action likely to result.

I stumbled upon a web site with some really hateful comments about Minnesota immigrants. Can’t this be shut down?
Probably not. The First Amendment generally protects “hate speech,” but not hateful actions. So maintaining a hate-filled web site is constitutional, but using the web to send intimidating e-mail is not.

You mentioned that there were statutes and ordinances that protect free speech. How do those protect online communication?
Minnesota is among states with a statute that makes it extremely difficult to sue over speech that is “genuinely aimed in whole or in part at procuring favorable government action.” So Internet postings that satisfy this standard enjoy much protection under this Minnesota law. It is a law of which even few lawyers are aware.

© Steven P. Aggergaard • All rights reserved
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