“Perhaps the most important issue in First Amendment Law right now is how we understand Free expression in a digital age,” Neil Richards, professor of law at Washington University in St. Louis, MO, told top First Amendment scholars at a gathering back in April.
Bloggers are often thrust into the vanguard of the debate over the freedom of expression whether they want to be or not. This is because bloggers, unlike traditional journalists, often express personal opinions and beliefs without the benefit of an established and recognized platform such as a newspaper of TV program. Like their traditional journalist counterparts, American bloggers place considerable faith in the First Amendment to protect them from a variety of legal challenges. Unfortunately, that doesn’t always work.
There is a fine line between an opinion and hate speech. Just ask Paula Deen, celebrity cookbook author and TV show host who came under fire and lost her job for allegedly using the N-word in her private life. Or Salman Rushie, author of the Satanic Verses and arguably the most famous example of the risks involved in publishing even a work of fiction that offends a particular group. Rushdie’s late 1980’s error was recently repeated when a newspaper in Denmark published a cartoon depicting the prophet Mohammed and a video posted on YouTube sparked violence and protests around the globe.
Part of the challenge is that the internet has virtually made all things accessible to all people everywhere. Yes, that’s an oversimplification but the fact remains that information that is perfectly legal to publish in one nation may not be legal to publish in other countries. Even if it is legal, your content may offend others in far off lands or next door.
In the U.S. and American cyberspace bloggers are allowed to hate. Many have built their reputations on hate. To some degree they have chosen to define themselves by who they are not. And as long as they do not directly call for others to commit violent acts against those they hate, their words are protected by the First Amendment. This is not the case everywhere. And in many places around the globe hate is illegal.
It isn’t just hate that poses potential problems for bloggers. Rushdie didn’t write a hateful book, he wrote a blasphemous one. Insulting, denigrating, satirizing or even fictionalizing a religion, religious figure, religious practice or even God can land you in legal trouble in many places around the world.
The takeaway of all this is not that bloggers shouldn’t have strong opinions on any subject. It’s that bloggers need to pause and reflect about what they post, preferably before they make their opinions public. As the cliche says, once something is made available online, it is almost impossible to take back or erase. Be sure you understand the consequences and are willing to live with them for the rest of your life before you click publish.
“The rise of social media, blogs, and other forms of digital expression have coincided with a decline in traditional media, particularly in the economic viability of newspapers. At the same time, our reading habits and other intellectual activities are being tracked, monitored and analyzed by advertisers and government agencies,” said Richards. “The challenge for First Amendment law will be to ensure that our cherished rights of free expression survive the transition to digital form without sacrificing the important ability of citizens to speak, write and communicate freely and sometimes anonymously without fear of government or social reprisals.”