Internet Speech
The digital revolution has produced the most diverse, participatory, and amplified communications medium humans have ever had: the Internet. The ACLU believes in an uncensored Internet, a vast free-speech zone deserving at least as much First Amendment protection as that afforded to traditional media such as books, newspapers, and magazines.
The ACLU has been at the forefront of protecting online freedom of expression in its myriad forms. We brought the first case in which the U.S. Supreme Court declared speech on the Internet equally worthy of the First Amendment’s historical protections. In that case, Reno v. American Civil Liberties Union, the Supreme Court held that the government can no more restrict a person’s access to words or images on the Internet than it can snatch a book out of someone’s hands or cover up a nude statue in a museum.
But that principle has not prevented constant new threats to Internet free speech. The ACLU remains vigilant against laws or policies that create new decency restrictions for online content, limit minors’ access to information, or allow the unmasking of anonymous speakers without careful court scrutiny.
Online Anonymity and Identity
The right to remain anonymous is a fundamental component of our right to free speech, and it applies every bit as much in the digital world as it does in the physical one. In the words of the U.S. Supreme Court in McIntyre v. Ohio Elections Commission, “Anonymity is a shield from the tyranny of the majority.”
Unfortunately, the right to remain anonymous has been under steady attack in the online world. Governments and corporations have attempted to unmask unpopular speakers through subpoenas directed at the websites they visit.
The ACLU has long been at the forefront of fighting overbroad or unjustified efforts to unmask political dissidents or online critics. We have fought for the right of anonymous critics to remain anonymous when the suits against them are frivolous. We have also represented an online forum for scientific discussion in its effort to safeguard the anonymous commentary that has allowed its users to generate critically important scientific feedback.
The ACLU has also closely monitored the occasional efforts to establish verified online identities. If implemented poorly, those efforts could be disastrous for the right to anonymous speech online.
Communications Decency Act Section 230
Section 230 of the Communications Decency Act immunizes websites from legal liability for the comments of their users. When Congress enacted Section 230, it wisely recognized that holding websites legally responsible for user-generated content would cripple the rapidly developing online world. Section 230 defines Internet culture as we know it: It’s the reason why websites can offer platforms for critical and controversial speech without constantly worrying about getting sued.
The vast majority of courts have honored Section 230’s robust immunity, but sometimes courts are tempted to hold “distasteful” websites responsible for the speech of their users. When that happens, the ACLU continues to defend Section 230’s protections for websites that offer platforms for user speech.
Student Speech and Privacy
In America, students do not lose their constitutional rights “at the schoolhouse gate.” The protection of students’ rights to free speech and privacy—in and out of school—is essential for ensuring that schools provide both quality education and training in our democratic system and values. Unfortunately, schools continue to demonstrate a disturbing willingness to abridge students’ rights. In recent years, educators have repeatedly disciplined students for speech critical of teachers and administrators. Likewise, we have seen a disturbing trend of schools—especially those providing important e-learning tools like laptops—monitoring students’ activities both on and off campus.
The ACLU continues to be a leader in courts and statehouses across the country in protecting both students’ free speech rights and privacy. For instance, we have aggressively fought against policies that require students to surrender their social media passwords to school administrators. Our “Don’t Filter Me!” project seeks to remove school Internet filters that block hundreds of LGBT websites. And we continue to litigate and advocate for legal privacy protections during school searches and seizures.
A school is not a constitutional dead zone. How can we expect today’s students to grow up to be tomorrow’s civic leaders if we do not respect these fundamental national values in our schools? If students are suspected of criminal activity, school administrators should be forced to make their case before searching students or seizing property. Likewise, students should be free from discipline for speaking out on issues of the day or criticizing teachers or officials. If we respect these principles in the schoolhouse, we protect them in the future.
Employee Speech and Whistleblowers
With the growth of social media and other modern communications technology, the right of government employees to free speech in and out of the workforce, and to a reasonable expectation of privacy in their communications and effects, has faced significant threat.
In particular, the government has aggressively investigated and prosecuted national security whistleblowers and sought to chill disclosures to the media that are merely embarrassing or revealing of government waste, fraud, or illegality. Similarly, private sector employees continue to face arbitrary discipline and privacy intrusions, especially when it comes to speech central to collective bargaining.
The ACLU has long sought to defend the free speech and privacy rights of public employees. We represent National Security Agency surveillance whistleblower Edward Snowden. We strongly support the Free Flow of Information Act (a bill to protect confidential sources) and oppose proposals to limit media contact with elements of the intelligence community. We also work to protect private employees’ free speech rights, especially in the case of laws limiting labor organizing.
While the First Amendment applies only to state action, the values that animate our right to free speech and free association apply to all of us, regardless of where we work. The marketplace of ideas works only if we are all free to speak vigorously and without fear about the issues of the day. This often happens in the workplace, so employee speech and privacy must be protected.
Leak Investigations
The U.S. Department of Justice under President Barack Obama has initiated more prosecutions of national security “leakers” than all other administrations did combined. It has also secured much more jail time for convicted leakers than all other presidents have, including a 35-year sentence for Chelsea Manning. These investigations have not been limited to the leakers themselves. In one investigation, the FBI sought a search warrant against a reporter as a co-conspirator for simply asking a source to provide information.
Freedom of the press is one of the most important safeguards of our liberty. The modern national security state has unprecedented authority to keep secrets, which it often uses to hide waste, fraud, abuse, and even illegality from the American public. Were it not for aggressive national security and political reporting, we would never have found out about the use of torture post-9/11, the existence of “black site” prisons, the drone strike targeted-killing program, or, of course, the Watergate scandal.
The ACLU continues to play a central role in the courts and Congress in protecting reporters from aggressive leak investigations and defending the ability of whistleblowers to reveal information about government wrongdoing. For instance, we are legal counsel to National Security Agency whistleblower Edward Snowden. We were also integral in securing new guidelines at the Department of Justice that, while not perfect, will still limit the department’s ability to investigate journalists for just doing their job.
Intellectual Property
Laws protecting intellectual property—patents, copyrights, and trademarks—can both advance free speech and pose significant threats to civil liberties. The ability to keep books you write or pictures you take from being copied and sold without your permission, for instance, creates a financial incentive to write those books or take those pictures, fostering creativity and encouraging speech. By the same token, overly aggressive enforcement of copyright laws—the right to copy material—literally blocks people from speaking freely.
The ACLU has been at the forefront of trying to find the appropriate balance between protecting the incentive to create and invent and preserving free speech. We brought the successful Association for Molecular Pathology v. Myriad Genetics U.S. Supreme Court case, which invalidated patents on human genes. We continue to defend free speech in the face of copyright laws restricting technology with lawful, non-infringing uses, and we also work to preserve and expand the “fair use” doctrine, which provides a key safety valve that permits the use of copyrighted material in journalism, teaching, satire, and other important areas.
With the growth of the Internet and the advance of modern technology, this balance is especially important. Lawmakers have repeatedly proposed measures that tip the balance in the wrong direction, including the Stop Online Piracy Act (SOPA) and the PROTECT IP Act (PIPA), both of which we opposed. We must be vigilant to ensure that intellectual property laws continue to serve the First Amendment and do not become the means to gum up the marketplace of ideas.
Rights of Protesters
The right to join with fellow citizens in protest or peaceful assembly is critical to a functioning democracy and at the core of the First Amendment. Unfortunately, law enforcement officials sometimes violate this right through means intended to thwart free public expression.
In recent history, challenges to the right to protest have come in many forms. In some cases, police crack down on demonstrations through mass arrests, illegal use of force, or curfews. Elsewhere, law enforcement limits expression by corralling protesters into so-called “free-speech zones.” And increasingly, new surveillance technologies are turned on innocent people, collecting information on their activities by virtue of their association with or proximity to a given protest.
Even without active obstruction of the right to protest, limitations on that right or fear of police intimidation can chill expressive activity and result in self-censorship. The ACLU, along with affiliates across the country, monitors the government’s respect for this foundational right. We intervene—through police departments, the courts, and the dissemination of Know Your Rights materials—so that the right to public expression is respected for everyone.
Repression of Peaceful Protest
Protected by the First Amendment and upheld over time as a bulwark of our free society, the rights to assemble, protest, and petition continue to come under fire today.
Unfortunately, as people connect in new ways using the Internet and mobile technologies, the government has developed new tactics to disrupt and restrict lawful assembly and protest. Those who wish to join together in peaceful protest or assembly risk police violence, mass arrests, infiltration, surveillance, and the criminalization of protest itself.
Since our founding in 1920, preserving and strengthening the right to protest has been a core priority for the ACLU and its state affiliates. No matter the content or popularity of the protesters’ speech—and surely protected speech often includes
Flag Desecration
Our democracy is strong because we tolerate all peaceful forms of expression, no matter how uncomfortable they make us feel or how much we disagree. The U.S. Supreme Court has affirmed and reaffirmed that the right to desecrate the flag is included in the Constitution’s protection of speech.
Flag burning and desecration is offensive precisely because it is political. Experience shows that the way to fight political expression with which one disagrees is not to outlaw it, as Congress has repeatedly sought to do, but to express disapproval.
The ACLU has led organizing efforts against legislative attempts to ban flag desecration, including fighting back recently proposed constitutional amendments in 2004, 2006, and 2011. We worked with veteran groups, religious leaders, and other Americans to highlight opposition to the amendment and lobby senators to vote down the proposals. We will continue to react quickly and forcefully to any future attempts to restrict the protections of the First Amendment.
Spying on Protesters
For more than a decade now, Americans have repeatedly encountered illegal and unnecessary spying by local, state, and federal law enforcement on lawful and peaceful protesters. Targets of such surveillance have been on both the left and right and include anti-war, anti-death penalty, anti-abortion, and animal rights activists, along with members of the Occupy movement.
We continue to aggressively combat suspicionless surveillance by authorities at all levels of government. The First Amendment guarantees Americans the essential right to assemble peacefully to advocate for any cause. Too often, law enforcement has sought to break up or jail protesters not for any disruption, but because of advocacy for unpopular causes or peaceful dissent from controversial government policies.
These rights have become even more essential in light of recent concern over law enforcement’s use of deadly force against unarmed members of minority communities and the recent revelations of mass surveillance of innocent Americans by federal intelligence agencies. We will continue to fight to prevent such spying and to hold government agents accountable when it occurs.
Freedom of the Press
“The press was to serve the governed, not the governors.”
—U.S. Supreme Court Justice Hugo Black in New York Times Co. v. United States (1971)
The freedom of the press, protected by the First Amendment, is critical to a democracy in which the government is accountable to the people. A free media functions as a watchdog that can investigate and report on government wrongdoing. It is also a vibrant marketplace of ideas, a vehicle for ordinary citizens to express themselves and gain exposure to a wide range of information and opinions.
The rise of the national security state and the proliferation of new surveillance technologies have created new challenges to media freedom. The government has launched an unprecedented crackdown on whistleblowers, targeting journalists in order to find their sources. Whistleblowers face prosecution under the World War One-era Espionage Act for leaks to the press in the public interest. And in the face of a growing surveillance apparatus, journalists must go to new lengths to protect sources and, by extension, the public’s right to know.
The ACLU has played a central role in defending the freedom of the press, from our role in the landmark Pentagon Papers case to our defense of whistleblower Edward Snowden and our advocacy for a new media shield law. When press freedom is harmed, it is much harder to hold our government accountable when it missteps or overreaches.
Media Protection Laws
Although virtually every state has a law protecting reporters from having to disclose to law enforcement sensitive information about their reporting, including the identity of confidential sources, Congress and the federal courts have refused to recognize such a privilege. As a result, reporters have been subpoenaed by prosecutors to disclose confidential sources, and they face jail time if they refuse.
In 2014, for instance, a federal court ruled that James Risen, a Pulitzer Prize-winning investigative reporter, had to testify in the trial of Jeffrey Sterling, a CIA whistleblower accused of revealing a botched CIA operation to hinder Iran’s nuclear weapons research. Risen, like many reporters before him, flatly refused to divulge his source and said he would go to jail for contempt before testifying.
The media, especially in these national security cases, serves as an essential check against government malfeasance and can function only when it can guarantee the safety and anonymity of sources. Federal legislation is desperately needed to finally include these protections in law.
The ACLU has been a staunch supporter of these federal “media shield” laws, including the Free Flow of Information Act, which passed the Senate Judiciary Committee with bipartisan support in 2014. We will continue to work in the courts and Congress to ensure reporters can do their job and hold the government accountable without fear that either they or their sources will be arrested and prosecuted merely for reporting the truth.
Photographers' Rights
Taking photographs and video of things that are plainly visible in public spaces is a constitutional right—and that includes transportation facilities, the outside of federal buildings, and police and other government officials carrying out their duties.
Unfortunately, law enforcement officers have been known to ask people to stop taking photographs of public places. Those who fail to comply have sometimes been harassed, detained, and arrested. Other people have ended up in FBI databases for taking innocuous photographs of public places.
The right of citizens to record the police is a critical check and balance. It creates an independent record of what took place in a particular incident, one that is free from accusations of bias, lying, or faulty memory. It is no accident that some of the most high-profile cases of police misconduct have involved video and audio records.
Relatedly, artistic expression should never be chilled out of fear of unwarranted police scrutiny. No one should ever find an FBI agent on their doorstep just because they photographed public art.
Through litigation, public education, and other forms of advocacy, the ACLU has defended the rights of photographers and all camera-wielding individuals to document freely.
Filming and Photographing the Police
Taking photographs and video of things that are plainly visible in public spaces is a constitutional right—and that includes police and other government officials carrying out their duties.
However, there is a widespread, continuing pattern of law enforcement officers ordering people to stop taking photographs or video in public places and harassing, detaining, and arresting those who fail to comply.
The right of citizens to record the police is a critical check and balance. It creates an independent record of what took place in a particular incident, free from accusations of bias, lying, or faulty memory. It is no accident that some of the most high-profile cases of police misconduct have involved video and audio records.
The ACLU has fought—and will keep fighting—to ensure that the right to film and photograph the police is respected by law enforcement officials.
Artistic Expression
The U.S. Supreme Court has interpreted the First Amendment’s protection of speech to extend well beyond speeches and books to virtually anything that the human creative impulse can produce. The First Amendment embodies the belief that in a free and democratic society, individual adults must be free to decide for themselves what to read, write, paint, draw, compose, see, and hear.
Provocative and controversial art and in-your-face entertainment frequently test our commitment to this belief. Why oppose censorship when scenes of murder dominate video entertainment, when works of art can directly insult peoples’ religious beliefs, and when pornography abounds on the Internet? Why not let the majority’s morality and taste dictate what others can look at or listen to?
The answer is simple and timeless: A free society is based on an individual’s right to decide what art they want—or do not want—to see. Once you allow the government to censor one person, it has the power to censor you or something you like. The ACLU advocates for the principle that free expression for ourselves requires free expression for others.
Obscenity Laws
Obscenity laws are meant to regulate and censor “obscene” speech and material. But as U.S. Supreme Court Justice John Marshall Harlan once noted in expressing the immense challenge of defining obscenity in a way that is not ambiguous or subjective, “one man’s vulgarity is another’s lyric.”
A free and democratic society should guarantee every individual the right to decide what art or entertainment they read, watch, or listen to. That also means that every individual has the right to decide what not to read or watch: to turn off the TV, leave a website, or decline to visit a particular art exhibit.
In the landmark 1997 Supreme Court ruling in Reno v. American Civil Liberties Union, all nine justices of the court struck down provisions of the Communications Decency Act (CDA) aimed at protecting minors by criminalizing so-called “indecency” on the Internet. This decision, hailed as the “Magna Carta of the Internet age,” ensured that online speech would enjoy the broad protection afforded to books and magazines rather than the more limited protection afforded to broadcast television and radio.
The ACLU continues to be a guardian of First Amendment rights through advocacy campaigns, litigation, and lobbying.
Banned Books
Since its founding in 1920, the ACLU has opposed censorship in all its forms. From books and radio to film, television, and the Internet, we have consistently fought to make sure Americans have the right to say, think, read, and write whatever they want without fear of government reprisal.
In 1926, we defended H. L. Mencken when he was charged with distributing copies of his banned magazine, American Mercury. In 1952, we won Joseph Burstyn, Inc. v. Wilson (aka the “Miracle Decision”), in which the U.S. Supreme Court finally struck down film censorship laws. In 1978, we filed a Supreme Court friend-of-the-court brief challenging the government’s power to suppress radio broadcasts of George Carlin’s “Seven Words You Can’t Say On Television.” And in 1997, we won Reno v. American Civil Liberties Union, which held that Internet speech is entitled to full First Amendment protection.
Those are just a few examples. The ACLU has also been instrumental in challenging bans on dozens of books, including “Ulysses,” “Howl,” “The Joy of Sex,” the “Harry Potter” series, “Sophie’s Choice,” and more.
Every year, the ACLU marks Banned Books Week, an annual event that celebrates the freedom to read and calls attention to the wealth of creative expression that is stifled when books can be forbidden from library shelves. The ACLU has always vigilantly defended the First Amendment and the right to free speech. We believe in an educated citizenry and a society where ideas are openly disseminated, discussed, and debated. And throughout our history, we have worked to protect the right to access information and the right to make up your own mind.
Campaign Finance Reform
The ACLU believes that the system of electing candidates to federal office is badly in need of repair. We will continue to advocate for reform of the current system, including in support of our longstanding commitment to public financing of campaigns. In doing so, we will stress fidelity to the principles protected by the First Amendment with the goal of expanding, not limiting, political speech.
In a 2010 case called Citizens United v. Federal Election Commission, the U.S. Supreme Court ruled that independent political expenditures by unions and corporations (including non-profit corporations such as Planned Parenthood, the National Rifle Association, and the ACLU) are protected under the First Amendment and are not subject to restriction by the government. That decision has sparked a great deal of controversy. Unfortunately, legitimate concern over the influence of “big money” in politics has led some to propose a constitutional amendment that would reverse the decision—by limiting the free speech clause of the First Amendment.
The ACLU firmly opposes this approach. In our view, the answer to concerns over the escalating cost of political campaigns is to expand, not limit, the resources available for political advocacy. Thus, the ACLU supports a comprehensive and meaningful system of public financing that would help create a level playing field for every qualified candidate. We support carefully drawn disclosure rules. We support reasonable limits on campaign contributions, and we support stricter enforcement of existing bans on coordination between candidates and super PACs.
Our system of free expression is built on the premise that the people get to decide what speech they want to hear; it is not the role of the government to make that decision for them.