Academic journal article Harvard Journal of Law & Public Policy

Technology and the Role of Intent in Constitutionally Protected Expression

Academic journal article Harvard Journal of Law & Public Policy

Technology and the Role of Intent in Constitutionally Protected Expression

Article excerpt


Intent and context matter enormously in communication. While that has always been true, social media services, smartphones, the cloud, and other recent technological innovations have fundamentally changed the landscape of expression. And they have done so in ways that have profoundly important consequences with regard to understanding the limits of First Amendment protections.

Today, the quantity of expression, measured in distinct, easily archivable communications transmitted from one person to one or more recipients, is dramatically higher than in the past. In less time than it would have taken to produce a single handwritten letter in the pre-digital era, a person can now issue dozens of texts, tweets, or other electronic communications. The potential to send large numbers of messages is not merely theoretical: A 2013 survey found that U.S. smartphone users in the eighteen to twenty-four age group were sending an average of sixty-seven text messages per day. (1) Most adults in higher age brackets also sent dozens of daily text messages, though fewer than those in the eighteen to twenty-four group. (2) To further complicate matters, people are not the only ones speaking: Many tweets, for example, are now issued by computers programmed to mimic human behavior. (3)

In addition, the number of potential pairings of speakers (4) with listeners has skyrocketed. In the United States there are well over sixty million active (5) Twitter users, (6) each of them broadcasting messages that can be read by anyone in the world with an Internet connection. (7) There are also about one hundred million active U.S. users of Instagram (8) and several hundred million active U.S. users of Facebook, (9) many of whom are regularly engaged in publishing content. In the pre-Internet era, only a small percentage of people were broadcasters. Today, most people are.

In combination, these changes mean that even if only a tiny fraction of expression raises questions of First Amendment limits, in absolute terms the number of communications in that fractional category is now immense. A further complication is that technology has made it easy to copy, forward, excerpt, comment on, archive, and remix content. Messages written with one audience in mind are commonly retransmitted to other audiences in other contexts, often in a manner outside the control of the original speaker. Both very short time spans and long time spans can strip context: In minutes, a message in cyberspace can outrun the person who created it, repackaged and repurposed by others in ways that may mask or appear to alter a speaker's original intent. Long time spans can also alter apparent meaning. A digital message can be dredged up and re-circulated months or years after its original composition and then interpreted in light of intervening events that the message's author could not have foreseen.

The potential impact of impulsive and spontaneous expression has also changed. As has always been the case, statements associated with emotions such as surprise, fear, anger, joy, and disappointment are often made in the heat of the moment without significant forethought regarding their consequences. In the pre-digital era such statements were often made verbally in person and would linger in the air for only a few seconds. Today, spontaneous expression is often conveyed electronically and therefore automatically archived, exposing it to scrutiny weeks, months, or years into the future. (10)

In short, because of today's rapidly changing communications technology landscape, the role of speaker intent is more complex than ever before. And questions regarding intent are particularly acute when expression allegedly falls outside the bounds of First Amendment protection and, relatedly, within the scope of criminal statutes addressing communications. This issue was central to Elonis v. United States, (11) which considered a conviction arising from a series of threatening Facebook posts. …

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