Freedom of Expression

Often heard is the cry of First Amendment rights: the freedom of speech. The way some talk about it, it creates and covers an unlimited area for who, what, where, and when. Well, that's not exactly true. As with most everything in a civilized--let's call it "reasonable" instead--society, there are boundaries.

The First Amendment is granted by the U.S. Constitution, and all 50 U.S. states have freedom-of-speech provisions.

Government regulation of speech in public forums is usually the subject of tight scrutiny by the courts. The U.S. Supreme Court has held that streets, sidewalks, parks, and other similar public places are so historically associated with speakers exercising their right of free speech that the government cannot properly deny access to them.

On the other hand, the Supreme Court has held that the following are generally not public forums:

• shopping malls
• military bases
• the sidewalk leading from the parking area of a post office to the post office's front door
• meetings of government officials to discuss policy questions related to their professional employees
• an airport terminal operated by a public authority
• a person's personal mailbox
• car card advertising space on a city transit system
• universities

Note: Universities may create public forums by dedicating certain areas generally open for use by student groups.

No case has yet defined the nature of the Internet as a public or private forum, but certain things can be inferred from the public forums mentioned here. For example:

• individual mail messages and e-mail boxes would probably be considered the same as a personal Post Office mailbox and not a public forum
• automated mailing lists (e.g., listservs) are usually considered person-to-person e-mail and not public forum
• Internet telephones and videoconferencing used in the same manner as private telephone and conference calls are not likely to be called public forums
• moderated newsgroups have a human moderator and would more closely resemble "letters to the editor" of a privately owned newspaper (where the letters become the property of that newspaper upon receipt) rather than a public forum
• unmoderated newsgroups most closely resemble the public parks, streets, sidewalks, etc.
• chat sites that have no screening person and allow public, uncensored discussion would very likely be considered public forums

A Web site may or may not constitute a public forum. This would be a case-by-case matter for the courts. They would need to consider, for example, whether message boards are on the site and whether there is a human moderator involved. If there is such human intervention or if there is no message board setting, then the site would very likely not be called a public forum. Merely placing a Web site or page on the Internet should not be considered a public forum for free speech anymore than putting up a mailbox outside your home creates one.

As mentioned under tort laws, no First Amendment right exists to send unsolicited e-mail (private company to private company situation; no government action involved).

Obscenity and child pornography are not entitled to the protections of the First Amendment, and the government may legitimately restrict access to such materials. Transmitting obscenity and child pornography, whether by the Internet or other means, is illegal under federal law for both adults and juveniles, and under the laws of most states.

All states have laws governing obscenity generally (the Texas statute is Title 9, Chapter 43, Subchapter B, Penal Code), so it is best to take caution and assume that state laws prohibiting obscenity apply to the Internet to the same extent that they apply elsewhere. You will come out better all around if you do.

Not all forms are speech are constitutionally protected. For example:

• words that provoke immediate violence or create panic
• speech that creates a clear and present danger (cannot be remote or probable) of imminent lawlessness
• transmission in interstate or foreign commerce threats to kidnap or injure another person

Defamation also falls outside the protection of the First Amendment.

You might also guess that harassment is another no in the area of free speech. Most states (including Texas) have laws against harassment and stalking. Connecticut has passed more specific laws to make it unlawful to harass, annoy, or alarm another person through on-line messages. Other states are expected to follow this lead very shortly.

Under current law, you can publish any legally protected speech on-line. Initial attempts at regulation of content have proved unconstitutional. However, publishing any of the following on-line may subject you to prosecution or harassment by those who do not believe such content belongs on the Internet:

• child pornography,


• obscenity,


• threats, and


• anonymous speech