Anders Gyllenhaal: The future of the First Amendment

This is Sunshine Week in the United States, when news organizations put a spotlight on the public’s right to know and size up the state of government openness and access to public records.

This year, we should add a more sweeping question to the list: How will the First Amendment survive the dramatic changes in information technology?

Complicated disputes are popping up everywhere.

Cases moving through the courts range from whether Facebook “likes” and Twitter posts are protected speech (both for the moment are) to what speech rights businesses should have (they’re expanding).

The mere definition of free speech is getting clouded: Are video games a kind of speech? And what about computer-driven content like searches and automated stories? Put another way, can iPhone’s Siri claim First Amendment rights if she somehow libels you?

First Amendment laws shaped over decades are colliding with modern privacy concerns. On some campuses, protesters are objecting to free speech. There’s growing support for “right to be forgotten” laws that allow people to erase pieces of their past they don’t want found.

Here are five questions likely to shape the future of the First Amendment:

▪  How will the Internet alter free speech practices? There’s a lot of unsettled law about how speech and expression play out in a Facebook world.

Scholars say rules taking shape will generally extend existing standards to the Internet. The challenge will be figuring out when speech is altered by the Internet’s speed and reach.

▪  Who’s advocating for the public’s interest? We should watch which players step up as a changing of the media guard takes place.

The newspaper and broadcast companies that championed speech rulings of the 20th century don’t have the power and financial strength they once did. The five dominant companies – Google, Apple, Amazon, Facebook and Microsoft – have yet to show much interest in the First Amendment.

▪  Who controls how information moves? Just as important as who creates content will be who distributes it, which is why net neutrality rules approved by the Federal Communications Commission last year are under withering attack.

The current rules say service levels and rates should be the same for all. Internet providers say that curbs business options.

▪  What will expanding business rights mean? Corporations have turned to the First Amendment to free themselves from advertising limits, ingredient listings and political contributions. And Apple is refusing to crack open the encrypted iPhone of one of the San Bernardino mass shooters, saying code is protected speech.

Some say that the expansion of any speech rights serves all comers. Others say this shift goes against the intent to protect the rights of citizens against powerful government and corporate interests.

▪  Finally, where do you stand? Here the news is encouraging: The simple 45 words covering religion, speech, press, petition and assembly are woven deep into our civil fabric.

But the First Amendment did not find its place at the core of our rights without many struggles over two centuries. Sunshine Week is a good time to remember there are fresh battles ahead.

This story was originally published March 12, 2016 at 6:01 PM with the headline "Anders Gyllenhaal: The future of the First Amendment."