Brennan Center Joins Coalition Urging Congress: Look to the Supreme Court, Not Silicon Valley CEOs, For Guidance Before Regulating Online Speech

The Brennan Center and four other public interest organizations published a set of legal guideposts to inform discussions surrounding any potential regulation of online speech.

April 8, 2019

As policymakers around the U.S. contemplate regulations to protect and/or restrict online speech, a group of public interest organizations dedicated to free expression are publishing a set of legal guideposts that must inform any legislative or regulatory discussion. The document, entitled “Online Speech and the First Amendment: Ten Principles from the Supreme Court,” explains a series of fundamental safeguards for free speech that our nation’s highest court has articulated and should be followed in any potential regulation of online speech.

The five organizations are the American Civil Liberties Union, the Brennan Center for Justice at NYU School of Law, the Center for Democracy & Technology, the Electronic Frontier Foundation, and New America’s Open Technology Institute.

U.S. Supreme Court rulings have established principles sharply limiting the situations in which speech may be regulated or silenced. The First Amendment protects a vast array of expression, including posts that society may consider indecent or hateful (Principle #3), anonymous speech (Principle #5), and speech targeted for its content (Principle #7).

The court has held that any attempt to censor protected speech must meet exacting constitutional standards. Recognizing the critical role the Internet plays in democracy, the court has also stressed that our rights are just as strong when we speak online.

ACLU

“Online discourse is key for our democracy, and the Internet is not a haven for the government to bypass the Constitution,” said ACLU Senior Legislative Counsel Kate Ruane. “The Supreme Court has consistently made clear that not only is the Internet one of the most important speech mediums of our time, speech that occurs on it receives the First Amendment’s fullest protection.”

Brennan Center

“Our free speech tradition holds that unpopular and even offensive ideas must have breathing room for our democracy to progress,” said Faiza Patel, Co-Director of the Liberty and National Security Program at the Brennan Center for Justice, “Any attempts at regulating online speech must follow the clear guidance from the Supreme Court.”

Center for Democracy & Technology

“People have become accustomed to the wide-ranging moderation that social media platforms can do, but government officials cannot act so broadly,” said Emma Llansó, Director of Free Expression at the Center for Democracy & Technology. “Laws that pressure intermediaries to regulate protected speech raise First Amendment problems as well.”

Electronic Frontier Foundation

“Any new rules affecting online speech must pass constitutional muster,” said Corynne McSherry, Legal Director for the Electronic Frontier Foundation. “This collection lays out the strict parameters such rules would have to meet.”

New America's Open Technology Institute

“The First Amendment provides clear safeguards to prevent our government from limiting free expression online, and Congress must tread carefully in any efforts to regulate how tech companies moderate the content they host,” said Sharon Bradford Franklin, Director of Surveillance & Cybersecurity Policy at New America’s Open Technology Institute. “Now that the public square has moved online for so many communities, Congress should focus its efforts on ensuring that our strong free speech traditions continue in the digital world.”