With Liberty and Justice For A Privileged Few
- SeattleU CMME
- Mar 10, 2022
- 5 min read
OP-ED by: Keegan Tomonaga
In 2016 János Kárpáti, a former EU correspondent, asked the Hungarian Prime Minister his position on the death penalty. Unfortunately, the Prime Minister didn’t appreciate this question. As a result, Kárpáti was banned from covering all future press conferences and fired shortly thereafter. When reflecting on his experience as a journalist in Hungary’s highly centralized media landscape, Kárpáti said “If you don’t have self-censorship in the back of your mind, you will be confronted with hard censorship at some point,” (Haury, 2016). Many Americans would be outraged if this type of censorship took place in the U.S. and point to the freedom of speech and press as outlined in the constitution. However, self-censorship is prevalent just as much among women and minorities in the U.S. as it is for the journalists in Hungary. Although free speech is fundamental to America’s identity, it was never intended for all
people when it was created. In this essay I will explain how the First Amendment, through its protection of hate speech, fails to give all Americans an equal right to free expression.
In order to understand the ways in which the First Amendment doesn’t apply equally to all, we must first have knowledge of what categories of speech it protects and the role social media plays in this discussion. Not all forms of speech are protected under the First Amendment, “obscenity, defamation, fraud, incitement, fighting words, true threats, speech integral to criminal conduct, and child pornography,” are all examples of unprotected speech (Congressional Research Service, 2019). However, the U.S. is one of the few developed countries to not have laws surrounding hate speech. Without legislation or legal definitions of hate speech, derogatory slurs and symbols of oppression are protected by the constitution. Many of which can be found circulating online. Due to Section 230, private companies and content platforms such as Twitter, Facebook, and Instagram are not liable for civil rights violations that take place on their sites and aren’t allowed to block online harassment. Both of these current standings play a significant role in the degradation of free speech in the age of the internet.
When harmful forms of expression go without restriction it has the potential to silence other forms of speech, this is known as the chilling effect. Examples of harmful expression include, “harassment, threats, genocidal rhetoric, hate speech, and revenge porn,” (Franks, 116). Those who are primarily silenced due to this type of speech are “women, nonwhite men, and sexual minorities,” (Franks, 116). Revenge porn, or nonconsensual pornography, is the disclosure of sexually explicit images or video without consent. Nonconsensual porn is often devastating and traumatic to the victims life, many of which are women. However, it wasn’t criminalized until 2003 despite it existing in some form for decades prior. Nonconsensual pornography has become an epidemic that threatens women’s right to self expression and directly contributes to the chilling effect with reportedly “one in eight adult social media users in the U.S.” having been affected (Franks, 132). This is just one example of how the First Amendment doesn’t apply equally to all U.S. citizens.
Other forms of online harassment pose a threat to equal access to the liberties granted by the First Amendment. More specifically, online troll attacks are one of the most vicious occurrences of online hate speech. Most of which is targeted to women and people of color. In Franks chapter on troll armies, reportedly “50 percent of Americans have experienced online abuse from offensive names, threats of sexual harassment and physical violence,” (Franks, 142) Of the victims of these attacks, nearly 80 percent of women who’ve received these threatening messages, have self-censored or removed themselves from the social media platforms they were using. Currently, the U.S. doesn’t have any laws that criminalize trolling meant to deliberately cause distress and anxiety unlike other countries around the world. Despite the hate being centered online, there are real-life implications for the victims. Self-censorship isn’t just limiting an individual's freedom of expression, it can strip people of their human dignity and directly contributes to the breakdown of the culture of free speech.
Those who believe in prioritizing freedom of speech over human dignity, typically subscribe to three schools of thought: the democracy theory, the autonomy theory, and the marketplace of ideas theory. The democracy theory argues that freedom of speech is vital to the exercise of self-governance. The autonomy theory states that being able to speak freely is essential to the development and flourishing of the individual human personality. The marketplace of ideas theory, arguably the most significant of the three, states that the open debate of ideas will ultimately produce the truth and that “free” markets will produce optimal results. What the marketplace of ideas fails to account for is the unequal power relationships between white supremacists and their targets. First Amendment absolutists “ignore the persistent inequality in the power of oppressed groups to communicate their ideas in the marketplace, just like Bill Gates can keep other companies from selling computer operating systems,” (National Center for Human Rights Education, 2011). Just as the marketplace of ideas doesn’t account for inequalities in power, the U.S. justice system fails to recognize how hate speech continues to enforce white domination. Instead, they watch idly as social inequality runs rampant online and
the victims become silent.
The First Amendment and Section 230 in its current state only protects free speech for a privileged few, not all Americans. Potential solutions to foster free expression for all include Section 230 reform, education on critical race theory, and analyzing the role race/gender play in self-censorship. There are various proposed reforms to Section 230 that would hold private companies accountable for monitoring and regulating their sites to protect against online abuse. Adopting a change to Section 230 is vital to keeping the power of social media conglomerates in check, as well as safeguarding against hate speech and troll attacks. Perhaps, the best method to promote equality is through education. Education on critical race theory, online harassment, and how to avoid engaging in the behavior will aid in raising awareness and preventing these same behaviors for the future generation. Lastly, a critical look into self-censorship may help our society gain a deeper understanding into who is policing their speech and why. Although the Founding Fathers did not intend the First Amendment for everyone, free expression is a human right that belongs to all.
FIRE. Who Really Has Free Speech? the Past and Future of the First Amendment. 23 Aug. 2021,
Franks, Mary Anne. The Cult of the Constitution. Stanford University Press, 2019, p. 272,
http://www.sup.org/books/title/?id=29075, Accessed 30 Jan. 2022.
Killion, Victoria L. “The First Amendment: Categories of Speech.” InFocus, Congressional
Research Service, 16 Jan. 2019, https://sgp.fas.org/crs/misc/IF11072.pdf.
National Center for Human Rights Education. Racism and First Amendment. 2011,
https://academic.udayton.edu/race/06hrights/waronterrorism/racial02.htm.
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