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Can You Violate the Freedom of Speech on the Internet?

The freedom of speech is one of the most frequently cited constitutional rights online. Too frequently, it is cited to justify a person's right to say something that others find offensive or upsetting. However, while most understand that there actually are limits to free speech, just as many are shocked to learn the freedom of speech doesn't actually apply to any of the websites they are likely using.

For starters, the First Amendment only protects people from the government restricting their speech unreasonably. For instance, it does not protect people in real life, or on the internet, who incite violence; nor does it protect people making credible threats of violence.

Since websites are privately owned, websites are free to develop their own policies regarding what is or isn't allowed. You will generally have no legal recourse if a website chooses to censor you (although if it is done discriminatorily or in violation of a contract, you may).

Exclusions to the Freedom of Speech

Despite many people's incessant persistence that the freedom of speech permits them to harass others online, the courts and congress have carved out specific types of speech that are excluded from protection. Additionally, states, like California, have criminal laws against harassment, whether in person or done through the world wide web. The general exclusions include:

  • Defamation/Invasion of Privacy
  • Obscenity
  • Copyright/Trademark Infringement
  • Inciting a riot or others to break the law
  • "Fighting Words"
  • Speech creating a "clear and present danger" to national security
  • False advertising
  • Speech that disrupts school activities

Also, the government can place reasonable restrictions on free speech, such as those that restrict the time, place, and manner of the speech. For instance, prohibiting protestors from loudly chanting before 6:00am in a residential neighborhood is a reasonable restriction.

Freedom of Speech Is Not Freedom From Liability

If you post something online that is not true, is deceptive or fraudulent, or is viewed as a credible threat of violence or a criminal act, not only is the First Amendment not going to apply as nearly all websites/webhosts/servers/etc that allow the public to post anything are privately owned, you can be censored, and you could also face civil liability.

Worse than censorship is the legal liability a person can face for posting untrue speech. Defamation can occur via an internet post, which could expose a person to monetary damages. Violations of trademark and copyright laws are also not protected and can also land a person in some legal hot water. Also, credible criminal threats, even those made anonymously online, can land you in jail.

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