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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.

Published: 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.


“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.”