First Amendment Speech Protections: Not Who, But How

Does the First Amendment protect speech depending on who is speaking or what is being said? Should it make a difference if the speaker is a human being or the Huffington Post?

The First Amendment protects speech depending on what is being said and in what context.

Although restrictions can certainly be applied for public relations and advertising pieces identified as “commercial speech,” for the sake of this argument, let’s focus on the base question of whether or not your protections should be limited due to the amount of public exposure and influence you carry as an individual or media outlet.

The value of the speech being conveyed should always take superiority over one’s economic or political standing and allow all speakers the same freedoms and protections in favor of allowing content and ideas to “enter the marketplace of ideas” as exemplified in Near v. Minnesota.

The Court’s decision to protect Near’s right to free speech shows that even though content may be deemed unfavorable by the government, prior restraints are unconstitutional since they limit one’s ability to make citizens aware of important public issues. This protection can be applied in both the case of the individual as well as in the case of media outlets like The Huffington Post.

One timely parallel would be the Obama administration and its inability to censor Fox News simply because they believe the network is bias in its coverage of certain events or public figures.

In this same instance, it could be argued that The Huffington Post could violate this freedom of speech by publishing information about the locations of law enforcement roadblocks in Boston during the recent city-wide lock down. In this case, the online news site could be charged with presenting a “clear and present danger” to the law enforcement officials in the city by providing sensitive information to the Boston Marathon bombing suspect, Dzhokhar Tsarnaev. In this hypothetical situation, The Huffington Post could also be liable for the “imminent, lawless activity” that would occur as defined by Brandenburg v. Ohio.

One should note that during the actual news coverage of the manhunt, reporters opened almost all of their live reporting segments with a disclaimer stating that they could not share specific information in consideration to police safety.

first amendment social mediaNowadays, I question whether or not there is a difference between the “influence” of an individual and that of a reporter from a media outlet.

In today’s digital society, anyone can disseminate information to the public simply by posting a video on YouTube or having a tweet go viral—something I’m sure the Founding Fathers didn’t take into account.

If public relations and marketing professionals have given bloggers and social media  a new level of influence in the professional industry, shouldn’t the hierarchy of influence for speech protection be reevaluated to reflect these changes? Now that the individual can just as easily share mass communication messages using online mediums, should they be held to the same standard as “members of the media?”

How do you think First Amendment speech protections will evolve to encompass the digital arena?

Yasheaka Oakley Owens

Yasheaka Oakley Owens is the owner of YOakleyPR, a woman-owned small business that provides public relations, social media, and online marketing support services to small businesses and 501(c)(3) nonprofit organizations in Southeastern Pennsylvania, Southern New Jersey and Delaware.

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