Freedom of Speech for Web Publishers and Citizen Journalists

Limitations on Free Speech for Web Publishers

Web publishers take note . . . Although you're entitled to free speech on your website, there are a few lines you don't want to cross.

As a web publisher, you view yourself on the cutting edge of new media - and that means you can post whatever you want online without fear of reprisal.

After all, you've got free speech and freedom of the press watching your back, right?

In reality, online publishers are not always afforded the same liberties as journalists. And even if you qualify as a bona fide journalist, you're still not free to say anything that strikes your fancy. There can be significant consequences involved with posting content that pushes free speech beyond its legal limits.

The first amendment guarantees citizens to the right to free speech. Free speech gives you the right to express your thoughts and opinions, but only to the extent that it doesn't violate someone else's rights or laws that have been established to protect vulnerable parties. There are multiple scenarios in which your right to free speech simply won't save you - and here are some that commonly impact the activities of online publishers.

  • Obscenity. According to the courts, obscenity is not protected by the first amendment. The Supreme Court has determined that to be classified as obscene, content has to subjected to what is known as the "Miller Test", a three-part test that addresses things like community standards and the work's literary, artistic, scientific, or political value.
  • Defamation. In written form, defamation is known as libel. It is the intentional misrepresentation of a person in a manner that injures that person's reputation. Injured parties can be compensated through the awarding of civil damages, but in order to qualify as defamation or libel, the accuser must prove that the act was committed with intentional malice.
  • Prior restraint. Prior restraint refers to government interventions in the form of licensing or restraining orders that prohibit speech or communication before it has occurred. For example, a government agency might obtain a temporary restraining order that restricts publishing certain content or material. Although prior restraints are common, the courts view prior restraint as a clear infringement of first amendment rights.
  • Child pornography. Any material that depicts sexual conduct by children is excluded from free speech, even if it doesn't violate obscenity requirements. In some scenarios, web publishers may be held legally responsible for child pornography (even cartoons) that has been posted by users.
  • Commercial. Commercial exclusions are also a concern for web publishers. As in traditional advertising, online publishers are not permitted to publish advertisements that make false claims or intentionally deceive consumers.

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