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University Gazette

The University of North Carolina at Chapel Hill

Fitting the First Amendment into the Web’s sprawling marketplace of ideas

In the days when televisions had rabbit ears, everyone turned to the same network anchors night after night to hear them describe what the world was like.

This didn’t make for the most robust marketplace of ideas, something that troubled those who studied journalism and the First Amendment.

“Now we have the Internet,” said Cathy Packer, W. Horace Carter Distinguished Professor at the School of Journalism and Mass Communication and co-director of the UNC Center for Media Law and Policy. “So, we got what we wanted, but it can be pretty scary and chaotic.”

People who thought the days of Walter Cronkite were better long for those days. But those who questioned an anchor’s bias or the single stream of ideas welcome the new diversity.

Packer said a wider marketplace of ideas is not bad news. Far from it. It just presents challenges: to candidates trying to get out a message, to voters separating fact from fiction, to judges trying to apply old laws to new technologies.

Public as publisher

“We used to say all citizens enjoyed First Amendment and free press protection. If you decided you wanted to move off your sofa and publish a newspaper, you could,” said Packer.

But to be a publisher in today’s market, you don’t even need to move off the sofa. The only thing you need to do is move your fingers. The Internet is wide open and welcoming to all speech, and often at no cost.

The free-speech laws that worked well when the press was a defined entity now have to apply to everything in the Web’s sprawling path.

“New laws don’t just pop up because there’s Twitter,” Packer said. “Courts have to take the old case precedents and apply them. In many cases, they don’t fit very well.”

For example, the U.S. Court of Appeals for the 4th Circuit will consider whether a “like” is protected speech after a group of Virginia sheriff’s department employees were fired for using Facebook to back a boss’s rival. In Mississippi, two firefighters were handed 30-day suspensions after they “liked” a fellow firefighter’s Facebook status where he had been critical of a mother whose child had been hit by a car.

The courts must decide for the first time if clicking on a graphic thumbs-up to show approval of a Facebook status or page counts as protected speech.

“A ‘like’ expresses an awful lot in today’s world,” Packer said. “Have you communicated something when you ‘like’ an idea? There’s no doubt about that, in my mind. But we’ll have to wait and see whether the court agrees.”

As a media law professor, Packer said most of the questions she received in the past pertained to libel and access to government records. Today most of the questions are about copyright: With everyone publishing, people want to know what they can use, how can they use it or who can use their work.

“If you’re publishing on the Internet, you’re often copying or commenting on what someone else already has created,” she said. “Are you using someone’s intellectual property in a way that’s permitted by law or not? The law is woefully unclear.”

Packer said it’s also increasingly important to teach students how to manage their own copyrights. Many journalism school students are publishing their student work online and will work independently after graduation. Protecting their copyrights will be critical to their financial success.

Packer cannot remember ever hearing about the Internet when she was in graduate school in the 1980s. Now she teaches an Internet law class each spring.

“Students live in an online world, and they’re fascinated to learn about the legal and policy debates being conducted in the highest levels of government that are determining what that online world looks like,” she said. “They learn about net neutrality and the difficulty of applying one nation’s laws to an international communication system. They discuss whether Google is a blessing or a dangerous invasion of their privacy. When these students go out into the workplace, they are going to be the opinion leaders on these important issues.”

First Amendment Day

Issues of social media and free speech concerned students this year as Packer worked with them to plan UNC’s fourth annual First Amendment Day.

“Social media are central to students’ lives, and that’s what they wanted to talk about this year,” she said. “They’ve had this sense that they could put anything on the Internet, and that it was the same as talking to their friends. They’re discovering that’s often not the case. It’s sometimes more like publishing their thoughts in the News and Observer.”

For instance, it’s not unusual for employers and graduate school admissions officers to view an applicant’s social media sites and use them to form an opinion about the applicant.

One of the panels at this year’s First Amendment Day will feature a local business person who does this. She’ll be asked to explain her company’s policies and to comment on several student Facebook pages. Anne Klinefelter, a privacy law expert in the UNC School of Law, will be on the panel to discuss the privacy implications of these hiring practices.

The Center for Media Law and Policy, a joint endeavor of the journalism and law schools, first held First Amendment Day in 2009. The daylong campus-wide event features speakers, readings of banned books and singing of controversial songs in the Pit, as well as panels that discuss the importance of First Amendment rights and a First Amendment trivia contest.

One of the event’s goals is to teach citizens to be tolerant when others exercise their right to free speech. Hot-button issues can bring out passion in people of all ages, but being tolerant is a part of being a good citizen, Packer said.

“Students need to leave here knowing what rights the First Amendment protects and why when someone says something they don’t like, that has value in our society,” she said. “They need to use counter-speech as a remedy, not a punch.”

Observing First Amendment Day is one way the University community can nurture the rights the amendment protects, Packer said.

“There are plenty of people who would be willing to vote away our First Amendment rights,” Packer said. “So people who really care about the First Amendment and people who make their living with it need to take really good care of it. It’s not like someone else is going to do it for us.”

Noise of democracy

This year’s First Amendment Day T-shirts quote James Buchanan, the 15th president of the United States: “I like the noise of democracy.”

Packer said the noise of this election year has been especially loud, and the amount and volume of speech puts pressure on voters and students to be smarter when evaluating political messages and their sources.

“Almost all political speech is protected, even if it’s not true,” she said. “That’s a good thing because we never want the government limiting our political debate. However, it can be very difficult for voters to make informed choices when false speech is protected and politicians appear to feel no obligation to tell the truth.”

“You have to think critically every time you see anything on television or read anything in the newspaper or on the Internet,” Packer said. “Ask yourself, who is this person, and what is his bias?”

And though the noise of this year’s election brings greater challenges, a true supporter of the First Amendment still believes the more speech, the better.

“More ads, more campaigning of every kind, more Facebook pages, more tweets – all are good things,” Packer said. “Sometimes you want to put your fingers in your ears, but don’t do that! Trust the First Amendment. The best ideas will win out.”