Democracy, Populism, and Truth by Unknown

Author:Unknown
Language: eng
Format: epub
ISBN: 9783030434243
Publisher: Springer International Publishing

6 Limits to Legal Regulation: The United States

The approach of the current U.S. Supreme Court is that speech may not be fettered so long as it remains speech and is not obscenity or contain threats of immediate violence (e.g. Brown 2011). For purposes of this discussion, we leave aside whether these lines can be drawn in any clear way. On this approach, social media firms have no responsibilities for monitoring sources or content, unless posts cross outer boundaries of decency or pugilism. Firms do have their own responsibilities not to engage in unfair or deceptive trade practices under §5 of the Federal Trade Commission Act, but these are relatively minimal: firms must be honest about their policies and not create situations that might seriously harm consumers in ways consumers cannot protect against. Moreover, state efforts to police these boundaries legally must pass the strictness of scrutiny, being narrowly tailored to compelling state interests. Such utter lack of regulatory scrutiny except at the border also leaves consumers vulnerable to epistemic injustice.

Under the U.S. Constitution, viewpoint-based regulations on speech—such as a regulation prohibiting an expression of support for fascism—are prohibited outright. Regulations restricting the content of speech must pass strict scrutiny. To take one recent example, in 2017 the Supreme Court invalidated the prohibition on registering trademarks that disparage members of a racial or ethnic group. An Asian-American band had sought to register their name, “The Slants,” chosen to reclaim the derogatory term. In finding the trademark prohibition facially invalid, the Court stated boldly: “We now hold that this provision violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend” (Matal 2017, p. 1751).

Historically, the U.S. was more forgiving of speech restrictions that are not content-based, requiring these regulations only to pass so-called “intermediate” scrutiny. For example, the Court upheld volume restrictions imposed on concerts in New York’s Central Park as narrowly tailored to serve a substantial state interest, even though alternative, less restrictive methods might have been available (Ward 1989).

But the Court’s recent jurisprudence is increasingly protective of speech even when regulations are not content based. The Court’s maiden decision involving social media illustrates such reluctance about regulation: “This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.” (Packingham 2017, p. 1732) North Carolina prohibited registered sex offenders from accessing social media sites that they knew could be accessed by minors. The Court, while continuing to acknowledge the permissibility of time, place, and manner restrictions on speech, judged that this regulation swept more broadly than necessary to protect potential victims from abuse.

In June 2018, the Court also struck down as overbroad Minnesota’s regulation of apparel with political messages within polling places. Agreeing

Download

Copyright Disclaimer:
This site does not store any files on its server. We only index and link to content provided by other sites. Please contact the content providers to delete copyright contents if any and email us, we'll remove relevant links or contents immediately.