As Apple tries to fend off government demands for access to iPhone content, the company is leaning on free speech arguments as a key part of its defense in a California courtroom.
On the other side of the country, 10 separate lawsuits have piled up this year against net neutrality rules, with both sides claiming First Amendment rights in a long-running dispute over Internet service.
This is Sunshine Week, when news organizations spotlight 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: How will the First Amendment survive dramatic changes in information technology?
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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).
Are video games a kind of speech? And what about computer-driven content like searches and automated stories?
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.
There’s growing support for “right to be forgotten’’ laws that allow people to erase pieces of their past they don’t want found.
The First Amendment has survived plenty of change in 225 years as it has adapted to telegraph, print, radio and television. But the Information Age is a whole new era.
Here are five questions likely to shape the future of the First Amendment:
▪ How will the Internet alter free speech?
Scholars say rules 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.
“The Internet amplifies everything,” said Thomas Healy, a Seton Hall law professor. “It amplifies expression. It makes it more powerful, more dangerous, more offensive.”
▪ Who’s advocating for the public’s interest?
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 Internet companies — Google, Apple, Amazon, Facebook and Microsoft — have yet to show much interest in the First Amendment.
“I worry,”’ said John E. Finn, the Wesleyan government professor who taught the Great Courses series on the First Amendment, “about the lack of well-funded institutions advocating for openness.”
▪ Who controls how information moves?
Net neutrality rules approved by the Federal Communications Commission last year are under withering attack.
The current rules say Internet service levels and rates should be the same for all.
Internet providers say that curbs their business options, while content creators say reversing this would give the Internet’s utilities too much power over the marketplace that would lead, for instance, to download speeds based on your willingness to pay.
▪ 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 computer code is protected speech.
▪ Where do you stand?
Polls consistently find overwhelming support for the First Amendment from a vast majority. Unlike other topics in public life, those sentiments cut across political, ethnic, age and economic lines.
“We have the gold standard,” said Alberto Ibarguen, director of the Knight Foundation, which funds media innovation around the world. “It’s our responsibility to make sure we maintain that.”
The First Amendment did not find its place at the core of our rights without facing many struggles over two centuries. Sunshine Week is a good time to remember there are fresh battles ahead.
Anders Gyllenhaal is vice president for news at The McClatchy Company, the Star-Telegram’s parent. Agyllenhaal-