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Technology is transforming what we mean by free expression
Inside the First Amendment

By Gene Policinski
First Amendment Center vice president/executive director
12.28.08

Welcome to 2009 — and to the era of First Amendment 3.0. First Amendment 1.0 was the time of origination, when the Founders debated, discussed and eventually created in 1791 a statement — the first 45 words in the Bill of Rights — that both declared and protected freedom of religion, speech and press, and the rights of assembly and petition.

First Amendment 2.0 was the time of definition, where the nation — through the means of the independent judiciary — defined those basic freedoms and in the process came to apply those protections to state statutes as well as federal laws.

Which brings us to 3.0 — a time of transformation.

At a pace and range not seen before, we are attempting to apply the principles of the First Amendment to an increasingly diverse society even as technology is redefining — at breakneck speed — what we mean by free expression and association.

The religious-liberty pronouncements of a society once largely defined as Protestant, Catholic and Jewish are being tested by world religions, by Wiccans and by those who profess no religious beliefs.

The means and meaning of free speech and free press are expanding as rapidly through the World Wide Web via social-networking sites, individual blogs, YouTube and a host of other high-tech means.

And even the concepts of assembly and petition are being altered to include instant Internet communities, unprecedented campaign fundraising and online support, and presidential debates that seamlessly cross lines from in-person comments to on-television appearances to online questions and answers.

The era of First Amendment 3.0 requires us to consider old issues in new ways. Public records deemed essential to tracking what government is doing to whom and when, long have been considered “open” — from driver’s license records to land transfers to court documents detailing divorce, business relationships and the like. Individual data could be assembled in the past, but it was a time-consuming, tedious task. However, in an era of instant communications, a person’s life history can be “aggregated” — in a near heartbeat — causing a collision between privacy and the public’s need to know.

Childish scrawlings on a wall date back as long as there have been walls. But the online, worldwide bulletin board that is the Web can take a once-obscure message — or slur or slander or lie — and give it global, near unerasable reach. How does the law punish perpetual harm or compensate for perpetual defamation?

When did we turn the technological corner to a 3.0 era for First Amendment issues? A few examples:

  • Earlier this month, the Committee to Protect Journalists announced there were, for the first time in its annual accounting, more online journalists jailed around the world than from any other medium: 56 of a total 125.

  • Powered by Internet overseas sales and publication, dozens of international libel lawsuits prompted attempts by U.S. lawmakers to preclude foreign defamation laws from being enforced unless the nations involved match free-speech guarantees provided in the U.S.

  • In May, Missouri lawmakers recognized that harassment could move from the playground to the computer screen, enacting a bill to make cyber-bullying illegal. The bill was spurred in part by the suicide of a young girl who was the victim of a horrible online prank.

  • In June, then-Democratic presidential hopeful Barack Obama — already attracting 1.8 million donors, many of them via the Internet — became the first candidate from a major party to bypass public campaign funds. By the election’s end, many said his success spelled the end of public financing, and with it the creaky machinery of campaign-contribution reforms.

At December’s second annual conference of the Family Online Safety Institute, the group proposed the post of a National Safety Officer within an office of Chief Technology Officer (CTO) for the United States. In less than two decades, the Internet has grown from a curiosity to a mammoth industry prompting such calls for a cyber-czar.

Perhaps the most profound change in the 3.0 First Amendment environment is found in the news media, where traditional mediums — newspapers, magazines, radio and television — face potentially fatal economic challenges, and at best seem destined to survive as smaller, more focused or more localized versions of their once-greater selves.

According to the 2008 State of the First Amendment survey, the Web is now the principal source of news for 17% of Americans, up dramatically from just 2% in 1997. And fully one-half of Americans said their access to news and information would be unchanged, or might even be better, if the Internet and electronic news sources replaced newspapers.

All of this is really putting the “new” in the New Year — and the 3.0 — in the First Amendment’s third century.

Gene Policinski is vice president and executive director of the First Amendment Center, 555 Pennsylvania Ave., N.W., Washington, D.C. 20001. Web: www.firstamendmentcenter.org. E-mail: gpolicinski@fac.org.


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