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Constitutional Rights in the Digital Age

Just as cell phones are different from ordinary physical objects, the Internet is dramatically different from earlier speech mediums. And the Court should acknowledge those differences in determining the scope of First Amendment protection for speech.
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The U.S. Supreme Court's recent decision in Riley v. California held that the police must obtain a warrant before searching the cell phone of someone who has been arrested. This decision applied the Fourth Amendment of the U.S. Constitution -- which prohibits "unreasonable searches and seizures" -- to take account of vast advances in technology since the time the Constitution was written.

What should Riley tell us about how the development of technology affects other constitutional protections? In particular, how does the rise of the Internet affect the First Amendment to the U.S. Constitution, which guarantees the right to free speech?

The Court's decision in Riley rested on a simple premise: Cell phones are different from ordinary physical objects. The latter may be searched following a lawful arrest. The former, after Riley, may not. That is because, to use the Court's own words, "Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse."

So if searches of cell phones are different from searches of ordinary physical objects, then should online speech be analyzed differently from offline speech? The logical answer is yes. Just as cell phones are different from ordinary physical objects, the Internet is dramatically different from earlier speech mediums. And the Court should acknowledge those differences in determining the scope of First Amendment protection for speech.

The differences between offline and online communication closely parallel Riley's distinction between ordinary physical objects and cell phones. One such distinction is quantitative. As the Court wrote in Riley: "One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy." This quantitative distinction extends to online speech. A large distribution of fliers might reach a few thousand people; in contrast, a public posting anywhere on the Internet can be read by billions. For instance, -- where anyone can post content -- reports between 15 and 20 million unique visitors per month.

Riley also noted qualitative differences between ordinary physical objects and cell phones. The Court stated: "The term 'cell phone' is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers." That is, cell phones "collect[] in one place many distinct types of information -- an address, a note, a prescription, a bank statement, a video."

The Internet likewise enables qualitatively different speech. Internet speech incorporates linking, which -- not unlike the cell phone in Riley -- aggregates a great quantity of information in a single place and creates a close connection between original and linked material. A much greater quantity of Internet speech is anonymous, and research indicates that anonymity breeds incivility as well as harassment and threats, which research has found disproportionately affect women. As many people have learned the hard way, the combination of the Internet and other electronic forms of communication enable the viral spread of information in a manner vastly different from people passing copies of a news article from hand to hand or calling up their neighbors to spread a juicy bit of gossip. And Internet speech is often both permanent and easily retrieved in a matter of seconds using a search engine, in stark contrast to the effort required to locate a yellowed news clipping stored in a box in the attic.

The First Amendment should take account of these differences between online and offline speech, as the following examples illustrate.

Consider, first, the doctrine of obscenity. The Supreme Court held in Miller v. California that speech is obscene only if "the average person, applying contemporary community standards," would believe that the allegedly obscene item appeals to the "prurient interest," or an excessive and unhealthy interest in sexual matters. The Court specified that contemporary community standards should be evaluated locally: that is, what counts as prurient in Topeka might not in San Francisco. Yet while perhaps locally-calibrated evaluation made sense in 1973, when Miller was decided, the standard requires updating now that an image posted on the Internet is theoretically viewable by anyone in the world.

Second, the Supreme Court will soon take up the question of whether and how the First Amendment protects arguably threatening speech posted on the Internet. The Court recently granted review in Elonis v. United States, a case involving a man who was convicted under a federal law that criminalizes "true threats" after he posted disturbing rap lyrics about his ex-wife on Facebook. The lyrics included such statements as:

There's one way to love you but a thousand ways to kill you. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave. I used to be a nice guy but then you became a slut.

The defendant's lyrics also involved a number of other violent statements, including a reference to "making a name for himself" with a kindergarten shooting and a fantasy about killing an F.B.I. agent. An issue in the case is whether the statements were "true threats" -- in particular, whether the defendant's claim that he did not intend his statements as serious threats should matter. Here again, the distinct qualities of the Internet make a difference. Because the Internet filters out voice and demeanor cues, online statements provide less information about the seriousness of the statement, and are thus more likely to be reasonably interpreted as threats. Likewise, because the Internet is not tied to a particular physical location, disturbing statements are more alarming to a reasonable person: one doesn't know whether the person making the threats is in a different state or in the next room. The Court should take these realities into account next term in fashioning a "true threats" doctrine for the digital age.

Third, the Internet medium poses novel considerations when it comes to First Amendment doctrine governing hate speech. The Court's past decisions on that issue have been mixed: in RAV v. City of St. Paul, the Court unanimously struck down a hate-crime ordinance that had been interpreted to criminalize cross-burning, while in Virginia v. Black, it upheld a statute that criminalized cross-burning so long as "intent to intimidate" was proven. Yet there are good reasons for the Court to analyze Internet hate speech differently. First, the Internet facilitates the gathering of like-minded individuals united by their hatred of particular groups. Second, the anonymity of the Internet facilitates easy expression of hateful ideas. And finally, Internet hate speech sometimes leads to serious real-world consequences: consider, for example, the ease with which al-Qaeda's hateful anti-American sentiments facilitate recruitment of new members.

Fourth, the phenomenon of "revenge porn" -- the distribution of intimate pictures of another person without that person's consent -- is another instance in which First Amendment analysis should take account of the unique characteristics of Internet speech. Some have argued that new state laws criminalizing revenge porn are, in at least some instances, constitutionally sound and good policy; others are more ambivalent. But broadcasting intimate images to the public via the Internet is quantitatively and qualitatively different from, say, distribution of such images by mail. I do not mean to imply that offline non-consensual distribution could not also be prohibited consistent with the U.S. Constitution. But First Amendment analysis of statutes criminalizing Internet revenge porn should not ignore the real-world differences associated with online distribution. The Internet allows easy dissemination of large quantities of revenge porn, facilitates the viral spread of such material, and potentially preserves the material online indefinitely, with devastating consequences for victims.

The Supreme Court's decision in Riley is a timely acknowledgment of the need for Fourth Amendment doctrine to take account of developments in technology. It's time for the Court to do the same with other areas of constitutional law, starting with the First Amendment.