The Congressional Research Service is recommending how the United States could crack down on online content promoting violence and terrorism without infringing the First Amendment’s free-speech standards.
It’s an issue because the current exceptions to free speech are few: One cannot make a true threat or yell “fire” in a crowded theater.
CRS acknowledges that “regulating online content in accordance with the First Amendment – even online content promoting terrorism or violence – presents challenges.”
“The challenges are due in large part to the complexities of free speech jurisprudence and the lack of controlling authority about how doctrines developed nearly 50 years ago – many in the context of statements made by identifiable speakers at political or ideological rallies – apply to speech on the internet where the lines between advocacy, incitement, threats, and conduct can be even more blurred.”
CRS said the cases and scholarship to date “suggest some general guideposts for evaluation the free speech implications of scholarly or legislative proposals to restrict online content promoting terrorism or violence.”
First, it is possible to have a law that regulates conduct online as opposed to speech. And it might not even trigger heightened First Amendment scrutiny, which means the law must further an important government interest by means that are substantially related to that interest.
The government must demonstrate a compelling need for the law, and it must accomplish its objectives in the least impactful way.
“A general regulatory scheme that incidentally regulates online content is unlikely to trigger heightened scrutiny, CRS said. “However, if a law expressly regulates certain types of online communications based on the words used or their effect on other internet users, it may be assumed to regulate speech rather than conduct.”
Further, the report said: “A law that is narrowly drafted to prohibit online speech that falls within one of the so-called unprotected categories of speech may not trigger heightened First Amendment scrutiny. In this regard, speech on the internet advocating violence as an abstract proposition would likely be considered protected, while speech that incites imminent violence, constitutes a true threat, or is integral to criminal conduct may be deemed unprotected.”
CRS said a law that is too broad would be challenged.
Fourth, the government would have to avoid the pitfalls of regulating content based on viewpoint, which “would likely present a clearer case of content discrimination and would be presumptively invalid regardless of whether the underlying speech is protected.”
Finally, “the government may have more leeway to regulate online content when asserting its interests in national security and foreign affairs; however, such laws, to the extent they restrict or burden protected speech, would likely have to withstand heightened (if not strict) First Amendment scrutiny.”
CRS is a nonpartisan public policy research arm of the U.S. Congress that works directly with members and their staffs.
The report, called “Terrorism, Violent Extremism, and the Internet: Free Speech Considerations,” was prompted by a renewed focus on the possible links between internet content and offline violence following recent acts of terror and hate crimes.
Some want social-media companies to moderate material on their sites, and others want Congress to limit online content on certain subjects.
Also unresolved is the reach of the protections of the First Amendment when the speech comes from foreign nationals posting online content from abroad, the report said.
Precedent suggests speech protections may not apply in those cases but would for any rules concerning what internet users in the U.S. can post or how existing U.S. laws are enforced.
The government, the report said, can regulate conduct without violating the First Amendment, but expression often is protected.
Generally, courts must distinguish between laws that regulate actions and speech.
The report focuses on “imposing civil or criminal liability on individual internet users (i.e., the originators of the content) rather than the social-media companies or internet service providers themselves.”