Allen MenaMr. CourtU.S Government10/27/17The Protection of Speech in Today’s Society”Freedom of expression is the matrix, the indispensable condition, of nearly every other form of freedom,” (said by Benjamin N. Cardozo, U.S Supreme Court Justice). This quote basically means that unless the freedom of speech is dispensed and made available to the people, no other freedom can be used or expressed. This quote is also saying that freedom of speech is, at least in part, the baseline for both every other amendment and for every human right given. While freedom of speech and all other amendments is important, the 21st century world today has changed the interpretations of what is said in the Constitution.In today´s society, many amendments have become less useful over time. One big example of this is, once again, the first amendment, regarding freedom of speech, and over time many have tried to undermine, curtail, or reject the validity of the amendment. This curtailing of free speech is inherently inappropriate and dishonors the value of the amendments, as well as creates arbitrary interpretation of the amendments based on mob rule. So far in modern society, a few issues have occurred as a result of today’s more progressive and more connected world today. The first of these to be considered is hate speech and the relatively recent creation of the term. Hate speech is considered unlawful in certain states, even though it is considered protected speech (White). The argument that many offer up for this clear disregard for the first amendment is that there are words that people are penalized for using. The name for these words is the term, “fighting words.” The second violation of the first amendment in today’s society is the restriction, curtailing, and overall social censoring of free speech on the internet. Free speech online is constantly attacked, and many cannot express their opinions without losing their jobs, and even reputations (Fisher). Throughout all of history, the restriction of expression through social cues and shaming has been negative and, “on the wrong side of history,” to say the least. The third first amendment distortion that has recently come about in the 21st century is the, “fake news,” which is a phenomenon where otherwise legitimate news sources report incorrect or misleading facts in order to portray candidates, parties, and even countries in a negative light. Fake news has also become a recent problem, and in this case the protection of free speech is a negative thing because the speech being used is false. Flipping the coin, some politicians are currently using the rise of fake news to discredit all news, especially those that might attack those politicians.Hate SpeechIn order to understand how hate speech affects both the law and the common man’s life, it must first be defined. Hate speech can be defined as spoken or written words that directly attack another person or group based on race, creed, denomination, gender, or age. On the surface, these laws preventing others from feeling offended and protecting victims from harmful and hateful groups like modern Nazis, seems to be very promising and a way to be progressive and successful as a society. However, there is an issue with these laws and regulations on hate speech. This can best be argued by disputing the following quote that many modern people nowadays support: “Not all speech is protected. There are limits to free speech.” This slogan is true in certain extents and for certain purposes, but not for purposes regarding so-called verbal harm to others, because this is usually not helpful nor is it realistic and practical in the real world. The Supreme Court has called the few exceptions to the 1st Amendment “well-defined and narrowly limited.” They include obscenity, defamation, fraud, incitement, true threats and other forms of toxic speech (White). The problem with narrowly limiting free speech as the Supreme Court has said is that doing that avoids a lot of the actual hateful words that people use. But legal bans on hate at all cannot stand, and should not be the be all end all to the free speech discussion (White). First and foremost, they cannot be the answer because they contravene the U.S. Constitution, and directly go against what was intended when the Constitution was created (White). For example, the proposed federal ban on advocacy of anti-Israel boycotts will not pass constitutional muster and other proposed prohibitions are also almost certain to be struck down if enacted (White). These laws to be proposed are way too strict and also go against the right to protest against what one does not believe in and make a petition of grievances against what one does not believe in. Advocates of these measures have advanced no legal theory that would reconcile a more aggressive approach to regulating hate speech with the First Amendment (Nossel). Another quote that many anti-hate speech advocates use is: “We must balance free speech and other interests,” (White). Usually, the term “other interests” indicates the idea of censorship, one that should be dreaded by the American people. Censorship advocates often tell us we need to balance the freedom to express ourselves with the harm that speech does. This is arguable philosophically, but it is wrong legally (White). American courts don’t decide whether to protect speech by balancing its harm against its benefit; they ask only if it falls into a specific 1st Amendment exception (White). “Maybe this speech is protected now, but the law is always changing,” (White). This is yet another example of a loophole that many anti-hate speech advocates argue. This argument is summed up to the idea that the Constitution is not meant to be entirely timeless, therefore it must be changed whenever society sees fit. In a way this is true, like how the Supreme Court’s approach to constitutional rights can change very quickly. For instance, it took less than a generation for the court to reverse course on whether the government could punish gay sex (White). But for decades the court has been moving towards more vigorous protection of free speech, not less, and for good reason (White). Free Speech OnlineFree speech is very well preserved when it comes to verbal expressions of what one believes in (exempting hate speech in this situation) and written publications on paper. This is not the same case on the Internet, however. Free speech online is basically common sense law when it comes to the protection of important individuals, but this can go awry very quickly when the power to police what is said online is put into the hands of the biased. One example of speech online being hindered for the right reason is the process by which Homeland Security will track down a person who has created clear and present danger online with a legitimate threat towards the president or another prominent figure in the United States political system. The issue with current online free speech laws (or lack thereof), is the clarity that it is lacking. If a law gives no clear notice of the kind of speech it prohibits, it’s “void for vagueness,” (Fisher). This means that the amendments are intentionally vague to be interpreted, and also to protect the people (Fisher). This is intended to be a positive thing, but much of the interpretation regarding online expression is negative and has cost people their jobs and livelihoods over one or two comments they may have made, which is unjust. This lack of clarity is now a Supreme Court issue, and is on the road to being changed for the better.One recent example of the Supreme Court deliberating over whether or not free speech has limits on the internet is in the Supreme Court case of Packingham vs. North Carolina. Under North Carolina law, he is forever prohibited from accessing commercial social media. But in 2010, Packingham signed up for Facebook, using an alias (his first and middle name). He was caught after commenting on a traffic ticket dismissal, and charged with a felony. Packingham challenged the law as violating his First Amendment right to freedom of speech. To be clear, freedom of speech here does not refer to actual speaking—his offense was signing up for a Facebook account, not anything he said. Still, First Amendment protections extend to accessing information (for instance, the speech of government representatives who use Twitter). The state may be able to infringe on a constitutionally protected right, but it must show that it has a compelling interest in doing so, and that it’s doing so in the least restrictive way. North Carolina’s statute appears to fail the second part of this two-pronged legal test (Livni). This case is about a man who was banned by the state of North Carolina from ever using social media because he had used it to have sex with a 13 year old girl. He then violated this by creating a facebook account seven years after his conviction, and was charged with violating parole. The issue at hand is whether or not it is violating the first amendment by restricting his online usage to such an extent where he cannot access social media. This also brings to mind the discussion over what is and what is not considered social media. In this case, one Supreme Court judge even mentions that social media does not have many identifying elements, which still poses an issue with certain platforms like Snapchat, which don’t necessarily have a profile and the same services that other more traditional social media platforms (like the one used by the defendant in this case) have and carry that makes them social media.Another less significant yet still just as important example of free speech being halted online is in the case of people seeking federal legislation to halt pornography from advertising because of the supposed effects it could have on children (Fisher). This is one of the few positive effects of limiting what can be shown and expressed on the internet, however it does not excuse nor does it exclude all the other examples of people being punished for expressing a view online. There is a counter argument for this however. The counter argument is the hindrance on a business (the highly lucrative porn business in this case) for the sole purpose of protecting how people feel and helping a small minority. This can lead to further problems, like the government creating further legislations to provide benefit to personal interest peoples, but hiding it under the guise of “the common good. Online speech also has a connection to news media, something significant that cannot be overlooked in this age of communication.Fake News and its Effect on Free SpeechFake news has subsequently had an effect not only on the social media outlets it infringes itself upon, but also on all news and what is considered true and false. The old adage of “the best fake story is 80% true” more than holds up and directly applies to this recent phenomenon of fake news and alternative facts. To understand how fake news affects free speech online, it must first be understood how fake news is created and sold realistically to the more intelligent than years past American public. The primary way that fake news is created is by taking a real story and slightly diluting it for political purposes (this can be seen in NBC, CNN, Fox etc,). The other side of this that might even be worse is how other prominent and public figures strike back against these somewhat fabricated claims. This effect of the once truthful press devolving into pointless and argumentative discourse is Donald Trump and CNN (now called “FNN,” meaning fake news network, by Mr. Trump). In these scenarios both sides are wrong. The process of these arguments go as follows: CNN or another news outlet will report a Donald Trump-related story but shift details in a way that portrays Trump in an especially bad light. The president will then retort by calling CNN a fake news network and retorting with even more outlandish and ridiculous stories. Luckily for the American people, there are new organizations coming about that have arisen to try and combat the new rise of fake news and promote good journalism once again.According to PEN America, a nonprofit focused on free speech and human rights, fake news is “demonstrably false information that is being presented as a factual news report with the intention to deceive the public,” (Borchers). This definition by PEN is spot on. As said before, these intentions to deceive usually work towards either a political ideology interest or for the benefit of a specific person. Even though the rampant spread of the disease known as fake news is extremely evident to the American public, there is very little that can be done because of the red tape surrounding the problem.One issue in fighting fake news is that spreading libel in part and not entirely is still protected free speech. But the fact that fake news is free speech does not nullify the danger it poses for open discourse, freedom of opinion, or democratic governance (Borchers). The rise of fraudulent news and the related erosion of public trust in mainstream journalism pose a looming crisis for free expression (Borchers). The looming crisis it poses is in the form of media and news that is actually legitimate and scholarly either being discredited or becoming harder to find altogether. Along with fake news being a problem, its effects are not isolated nor are they hindered by any means in today’s age of communication. They are in fact bolstered by this and the problems multiply when the idea of social and political ideologies come further into play.The problem of fraudulent news right now is compounded by social and political divisions that undercut the traditional ways in which truth ordinarily prevails (Borchers). Investigations, exposes, and studies fall short in a situation where a significant portion of the population distrusts a wide array of sources they perceive as politically or ideologically hostile — including sources that traditionally commanded broad if not universal respect (Borchers). Personal convictions strengthen the legitimacy of fake news and their sources in the eyes of the eager reader. This occurs because of confirmation bias, which is when a person agrees and accepts whatever source confirms what they already previously believed, and disregard other sources and news, even if those stories have better sources and are more reputable and known for providing facts. In conclusion, the protection of free speech in today’s ever-changing world must be preserved for a few reasons. One reason is the excessive limitations on free speech being given to try and stop hate speech. Another reason is the lack of protection of online free speech and the heavy prices people are having to pay for expressing themselves on social media platforms. A third reason is the rise of fake news and the delegitimization of proper and scholarly-done journalism in favor of echo chamber websites that serve nothing more than to confirm the biases of already politically leaning people. Even though these problems are rampant there are solutions that can be put in place to amend these issues. The first issue to be dealt with is hate speech. Hate speech should not be so heavily restricted. Hate speech legislation should be reverted back to the idea of serious cases of clear and present danger being caused before one can get litigated or prosecuted for hate speech. This solution would help end the unneeded emphasis placed on not offending others in this progressive and “softer” society. The solution that has to do with free speech online is an extension of free and present danger. It should be that one has to present clear and present danger with full intent to be held accountable for what they say online. This would keep many people who have certain politically incorrect viewpoints from losing everything they have worked for just because they think differently from the social norm. This also connects to the third solution but the opposite must be done in order to stop fake news from being spread. The third solution that would have a positive effect regarding fake news is that legislation and a law be put into action. It would be enforced through the FCC and the main basis of the law is that news outlets that are considered “in the public eye,” (meaning popular and widely used), must provide factual articles and must be fact checked by the FCC and cross examined before any works or journalistic articles can be published. This would curb the fake news avalanche that has engulfed the United States of America. These solutions would make the idea of free speech something to be honored in American society and not so problematic as it has recently become. Along with that, free speech being protected both online and in the real world would not only be immeasurably beneficial to society, but provide a good ground for public discourse in a way unseen by man in any other point in history.