Freedom of Speech, the War on Terror, and What's YouTube Got to Do with It: American Censorship during Times of Military Conflict

By Morgans, Melissa J. | Federal Communications Law Journal, August 2017 | Go to article overview

Freedom of Speech, the War on Terror, and What's YouTube Got to Do with It: American Censorship during Times of Military Conflict


Morgans, Melissa J., Federal Communications Law Journal


                          TABLE OF CONTENTS  I. INTRODUCTION                                                  147 II. BACKGROUND                                                   149    A. There is a Growing Issue of Terrorist       Speech on the Internet Due       to the Viral Nature Internet-Based Speech                  149    B. The United States Government Has       Historically Censored Speech       During Times of War                                        151    C. Despite This Historical Precedent,       the First Amendment Permits       Censorship of Speech Only in Limited                       155       Circumstances III. TERRORIST SPEECH ON THE INTERNET SHOULD BE CENSORABLE BY THE GOVERNMENT                                                159    A. Censoring Terrorist Speech       Today is Consistent with the       Tradition of Restrictions on       Anti-Government Wartime       Speech                                                     159    B. Targeting Internet-Based Speech is       Consistent with the Tradition of       Restrictions on Uniquely Invasive Media                    161 IV. THE "STOP TERRORIST ORGANIZATIONS FROM PROMOTING INTERNET TRANSMISSIONS ACT" COULD PERMISSIBLY REGULATE TERRORIS SPEECH ONLINE                                           164    A. STOP IT: The Stop Terrorist       Organizations from Promoting       Internet Transmissions Act Would       Give the FCC the Power to       Regulate Terrorist Speech Online                           164    B. STOP IT Would Provide a Medium       Through Which Censorship of       Terrorist Speech Could be       Narrowly Tailored to Meet       Constitutional Muster                                      166    C. If STOP IT Were to Fail Constitutional       Muster, an Alternative to       this Act Would be the Creation of a       Uniform "Code of Ethics" for       Major Social Media Sites                                   170 V. CONCLUSION                                                    170  Our liberty depends on the freedom of the press and that cannot be limited without being lost. (1)  --Thomas Jefferson. 

I. INTRODUCTION

On August 19, 2014, the extremist group, Islamic State of Iraq and Syria (ISIS), uploaded the beheading of American journalist James Foley on YouTube captioned as, "A Message to America." (2) The "Message" spread to other social media sites, including Twitter and Instagram, within minutes. (3) New York Times writer Hanna Kozlowska called the video a "modern guillotine execution spectacle." (4) Following the upload, a user-based movement, #ISISMediaBlackout, swelled in an attempt to stop the circulation of the video. (5) Instead of uploading the video or screenshots from the video onto social media platforms, users were encouraged to post the #ISISMediaBlackout hashtag along with photographs of Foley. (6) Foley's sister, Kelly Foley, tweeted in response to the video: "Please honor James Foley and respect my family's privacy. Don't watch the video. Don't share it. That's not how life should be." (7) On August 20, 2014, YouTube and Twitter removed the gruesome video citing their corporate take-down policies. (8)

The posting and subsequent removal of Foley's video implicates the age-old First Amendment debate on the scope of freedom of speech. To Thomas Jefferson, and those like him, freedom of speech was a uncompromising and universal democratic right. (9) It remains one of the greatest hallmarks of the Bill of Rights. (10) However, during times of war, military conflict, or prolonged hostilities, civil liberties, such as freedom of speech, rival the need for order and authority. (11) Fear of military defeat scales the balance towards order, resulting in the restriction of an individual's right to freedom of speech. (12) Today, this historical tension is further complicated by modern forms of media, and begs the question whether videos like the one posted about Foley should be considered censorable by the government or constitutionally protected free speech. …

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