First Amendment and Free Speech Rights

The First Amendment says that "Congress shall make no law ... abridging the freedom of speech." However, the courts and scholars have debated its application and limitations for many years. The courts have held that the Constitution provides protection from broad rules that chill speech within the First Amendment's sphere. In general, the First Amendment prohibits the state and federal governments from directing what we can see, read, speak, or hear.

First, it has its limitations such as defamation, incitement, obscenity, and child pornography. For example, in Universal City Studios v. Corley, the court evaluated the scope of protection for speech and stated that it depends on whether the restriction is imposed because of the speech's content. As such, content-based restrictions are permissible only if they serve compelling state interests by the least restrictive means. Also, a content-neutral restriction is permissible if it serves a substantial governmental interest, the interest is unrelated to the suppression of free expression, and the regulation is narrowly tailored.

Second, it has been applied to contractual nondisclosure agreements where the courts have held that their enforcement does not offend the First Amendment. In DVD Copy Control Association v. Bunner, the court stated that a "voluntary agreement not to disclose a trade secret waives any First Amendment protection for an ensuing disclosure." Stated otherwise, the states are allowed to enact laws to protect trade secrets but they must submit to the protections offered by the First Amendment. In Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., the court stated that the First Amendment does not allow defendants the right to infringe upon legally recognizable rights under the copyright law. Also, in Yankee Publishing, Inc. v. News America Publishing, Inc., the court confirmed that the exclusive rights granted by trademark laws are superior to the general free speech rights of others.

Third, it has been applied to ideas that can be expressed by various methods such as speech, books, movies, arts, and music. In fact, the courts have held that computer codes are protected by the First Amendment. So, in essence, all modes of expression are covered but the constitutionality of the rule or regulation should be determined by referring to its basic principles.

Fourth, it has been applied to the regulation of the Internet. In American Civil Liberties Union v. Reno, the court evaluated the application of the First Amendment to the regulation of the Internet and stated that the chaos within the Internet is its strength and the government should not interrupt it simply for that reason. The court mentioned that the Internet can be regarded as a never-ending worldwide conversation that should not be interrupted without justifiable reasons. It also acknowledged that individuals now have the capability of creating a website and reach a large and diverse audience.

Fifth, it has been applied to internet service provider's rights and responsibilities by evaluating the applicable state and federal laws. For example, in Zeran v. America Online, Inc., the court stated that the purpose of the Communications Decency Act is to protect the internet and communication service providers from liability.

Sixth, it has been applied to privacy and security rules and regulations. For example, in Bernstein v. United States Department of Justice, the court discussed the government's efforts to regulate a cryptographer's rights and responsibilities when it comes to encryption technology. It acknowledged that our reliance on electronic communications has decreased our ability to communicate privately more than ever. The court realized that privacy and security are important especially because confidential information (e.g., credit card number, social security number) is being sent and received on a regular basis.