Protected Speech

Mark Kende

Mark Kende, James Madison Chair in Constitutional Law, professor of law, and director of the Drake Constitutional Law Center

Internet advances First Amendment rights

Mark Kende is the James Madison Chair in Constitutional Law, professor of law, and director of the Drake Constitutional Law Center. Elizabeth Ford Kozor, Drake Blue editorial staff member, sat down with Kende to discuss the internet’s effect on free speech.

How has the internet changed free speech in this country?

“The internet has made speech more available to people by reducing barriers. Before the internet you may have had to get the newspaper to publish your letter to the editor. Now you can just start a blog and say whatever you want.”

How does the Supreme Court view speech on the internet?

“The United States is known as having the strongest speech protection in the world—or at least close to it. The United States is unique because we protect all kinds of terribly offensive speech. The Supreme Court has a history of being very protective of the print medium. The internet has been treated as deserving the highest protection, akin to how the Supreme Court has protected print, and that is a significant development.”

What are the issues currently surrounding free speech and the internet?

“Congress has tried on several occasions to pass restrictions on sexually explicit speech that children can view online. The Court has struck down most of their attempts to do that. There is also a debate about net neutrality. The premise of net neutrality is you don’t want the people who control access to content on the internet to use their biases to influence or censor speech. But to be fair, there are biases built in. For example, if you are a Google user and you live in Des Moines, Google is going to be more likely to give you information about what is happening in Des Moines. That’s not really censorship, but it’s not neutral speech. Everyone is getting something that is slightly tailored.”

Are there major issues looming on the horizon?

“I think a lot of the future internet cases are going to be in this murky area of ‘Is this terrorism or encouraging criminal activity, or is this speech?’ For example, we have a law that says you can’t support terrorist organizations, so if there is a website that says some positive things about al-Qaida, is that a violation of the law? Or is the law in violation of free speech? There is a similar issue with bullying. What’s the line between being able to say you don’t like so-and-so or you don’t like your teacher and harassment? There have been several cases where students have posted nasty things about their teachers on websites while at home, and they get disciplined at school. Does that infringe on their free speech rights? The lower courts are working their way through that.”

—Elizabeth Ford Kozor, JO07, AS07

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