Imminent lawless action communication is not protected under the First Amendment, & we need a standard for content

Imminent lawless action communication is not protected under the First Amendment, & we need a standard for content

The First Amendment’s free speech is about how people express information AND how people receive information. The latter part is what the radical right-wingers care little about. They want the right to disinform, lie, and distort. That is not what the First Amendment is for and it is not what it protects. 

How we receive editorial information on the Internet must begin to be regulated in the spirit of the First Amendment and public interest.

Twitter was 100% right in stripping Trump of his right to speak. Trump’s speak fails under the Bradenburg Test, but it shouldn’t have been their choice to do it, it should have been mandatory under a public interest standard. 

The United States used the people’s tax dollars to build infrastructure. Infrastructure isn’t just roads and highways, but also telephone wires, radio transmitters, and satellites. Everything we use to communicate uses the infrastructure built by US citizens’ tax dollars. 

Similarly, the government has a duty and obligation to keep our roads safe and fair by creating rules and speed limits. The government also has the same responsibility for our communication. At one time, both the roads, trains, and communication were all regulated by the Interstate Commerce Commission.

It is why no matter where you live in the US, you have access to a radio station, a TV station, and phone service.

The first step to regulating our shared communication infrastructure was the Radio Act of 1912, formally known as “An Act to Regulate Communication,” it provided licenses for radio stations and created a separate frequency for distress calls, and 24-hour radio service ships at sea. The catalyst for this was the sinking of the Titanic on April 12, 1912, the previous act Wireless Ship Act of 1910, proved to have a fatal flaw as it did not allocate radio frequencies, which meant that the Titanic had a hard time sending out its distress signal. 

One thousand five hundred people died when the Titanic sunk, including millionaire Jon Jacob Astor, Macy’s co-owners Isidor and Ida Straus, and railroad executive Charles Melville Hays.

The Radio Act of 1912 was controlled by the Interstate Commerce Commission and didn’t have any power. It couldn’t deny licenses, which began to violate the First Amendment, so the Radio Act of 1927 created the Federal Radio Commission (FRC). Under this act, the assumption was the First Amendment protected radio as a form of expression.


  1. Transmission facilities, reception, and service would be equal;
  2. Although the “Public” at large owned the radio spectrum, individuals would be licensed to use it;
  3. Licenses would be granted based on the public interest, convenience, and necessity; and
  4. Broadcasters were responsible for their operations, and the government would not interfere unless operators failed to meet the public interest standard.

The act also required stations to give equal time to political candidates and banned obscene programming.

In 1934 the FRC was abolished when Franklin D. Roosevelt created the Federal Communication Commission (FCC) by signing the Communications Act of 1934.

Communications Act contained provisions very similar to the Radio Act of 1927, and the FCC primarily took over the operations and precedents of the FRC. The law also transferred jurisdiction over communications common carriers, such as telephone and telegraph companies, from the Interstate Commerce Commission to the FCC.

In 1941 the FCC implemented the Mayflower Doctrine, which stated that stations were not allowed to editorialize or take a stand on controversial matters.

The Mayflower Doctrine stating that broadcasters could not editorialize —the peculiar US interpretation of being objective —was soon found to be an inefficient way to communicate information. 

There are times when subjects need an authoritative opinion. As a news organization with the facts, if a person states that it is raining and it is not raining, then not only is it your obligation to say it is not raining. It may also warrant editorializing the liar who said it was raining, especially if they said it to sell umbrellas. 

From 1949 to 1987, the FCC implemented a Fairness Doctrine.

The Fairness Doctrine allowed people to respond to controversial issues or matters in the public interests that were on the public airways. The doctrine did not state it must be equal time, but opposing organizations must get a chance to respond to editorialized broadcasted content.

The Fairness Doctrine stated that regarding controversial issues or matters of public interest that are editorialized, people and organizations had a right to respond. The fairness doctrine held that a right to respond existed because the public has a right to hear “all responsible viewpoints on particular issues” and broadcast licensees have “the duty of preserving for the public radio as a medium of free expression and fair presentation.

Reagan ended the Fairness Doctrine in 1987 and the following year the Rush Limbaugh Show, the grandaddy of disinformation, was born. 

It is my belief that in regards to the First Amendment that it would apply to the Internet. The Constitution is a living and breathing document. The Internet is clearly not only a modern-day public square, but also the morning news. 

The idea of the Internet and infrastructure would not exist if it were not for the government, the subsidies the government supplied, and the universities with grants from federal agencies, including the military. 

Many of us get news through social media. Many news organizations spread information through social media. 

In order for our US communication to be just we need Net Neutrality. Net Neutrality is regarding the technical/service provider (ISPs) aspect of the Internet. It is the idea that ISPs like Sprint and AT&T should treat all content equally. Meaning they shouldn’t be able to slow down preferred content to price gouge you and manipulate you into buying an upgraded packaged. The reclassification of ISPs to Title II Common Carrier. Title II provides explicit protection for consumers and online businesses against the“unjust or unreasonable” practices of ISPs via FCC authority. Title I —ISPs current classification does not. It would also embrace the modern needs of our social contract. Everyone should have equal access to the Internet like they do with phone service and mail —Andrew Yang’s proposal of increasing competition through local-loop unbundling may help with this along with removing restrictions states have on municipal broadband.

We had Net Neutrality for a moment under Obama, then Trump got in office and overturned it which reclassified ISPs to Title I

But what about the First Amendment regarding the editorial aspect of content and the creators of content? The First Amendment is not just sharing content, but also receiving it. As I stated, it is a part of the First Amendment that is rarely discussed.

First Amendment right to receive information is a corollary to the right to speak. Justice William Brennan elaborated on this point in Lamont v. Postmaster General, 381 US 301 (1965):

Lamont v. Postmaster General, 381 US 301 (1965), was a landmark First Amendment Supreme Court case, in which the ruling of the Supreme Court struck down § 305(a) of the Postal Service and Federal Employees Salary Act of 1962, a federal statute requiring the Postmaster General to detain and deliver only upon the addressee’s request unsealed foreign mailings of “communist political propaganda.”

“The protection of the Bill of Rights goes beyond the specific guarantees to protect from Congressional abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful. I think the right to receive publications is such a fundamental right. The dissemination of ideas can accomplish nothing if otherwise willing addressees are not free to receive and consider them. It would be a barren marketplace of ideas that had only sellers and no buyers.”

—US Supreme Court Justice William Brennan

Lamont v. Postmaster General, 381 U.S. 301 (1965)

Essentially you should not have to request to be informed. Information that engages and challenges and is fact checked should be easily accessible. It should be provided freely so citizens can fully participate in their First Amendment rights.

And those companies using the infrastructure that the people’s tax dollars had a share in creating, in the interest of the public, have a duty to ensure our right to receive available accurate information.

How can we make sure that everyone’s right to receive accurate information is honored and that the Internet is operating in the public interest? 

Some things would have to change. For instance, an internet provider would not be able to produce content. Those who provide content for the Internet must be untangled from those who offer content. Comcast owns NBC. If it wanted it could block access to competitors like ABC or triple the speed of videos from NBC to get a bigger audience. Someone like Trump could be an Internet provider AND news channel AND a social media platform, then proceed to block any other information. This can be eliminated with Net Neutrality, but this activity is already illegal under Antitrust Laws.

The Internet must firmly be put under the control of the FCC with reclassification to Title II and the FCC must be able to regulate it in regards to access to not only service but ALSO content. You do NOT have absolute freedom to lie, threaten and engage in stochastic terrorism in our virtual public squares, and currently, no one is enforcing that aspect of the First Amendment. The First Amendment has NEVER protected this kind of communication. There is a possibility that we may need another commission exclusively for media as it relates to the Internet and emerging new technologies and members of that new commission must be well versed in both the First Amendment and emerging communication technologies.

We also need to bring back a form of the Fairness Doctrine.  At the bare minimum, we must create mandatory adherence from companies that want to categorize themselves as editorial media and People’s platform aka social network “free speech zones.”  

The First Amendment freedom of speech only works if people have access to accurate information. The public continues to have the right to hear “all responsible viewpoints on particular issues.” Content providers who want to be citable sources and enjoy the fruits of the First Amendment have a duty of preserving our communication media for free expression AND fair presentation.

If NewsMax and Fox want to continue to fall under freedom of the press, they must behave like the ethical professional press and adhere to a public interest standard. This standard needs to apply regardless if they are on their platform or a third-party social media platforms like Twitter, Facebook, MeWe, or the now defunct Parler.

Supposing social media corporations, People’s platforms, such as Twitter, Facebook, MeWe, and Gab, want to continue to enjoy the goodies they receive as vehicles of freedom of speech. Then they must abide by CDA 230 and cease immediately acting like publishers.

They should not be allowed to use artificial intelligence for self-gain or commercial motivations with content. Curating polarizing topics to the top of the public’s feed simply because it is polarizing and increases engagement is editing the information a person is receiving and violating the audience’s First Amendment rights on receiving information.

Freedom of speech always begins with the freedom to receive information. The moment social media begins to curate content solely to increase engagement as a publisher would to gain audience— they should be stripped of their CDA 230 protection and forced into moderation. An anti-vaxxer shouldn’t continue to get more and more disinformation from like-minded ignorant people, because of AI by a platform for the sole purpose of getting that individual to increase their engagement. AI should only be used for the public interest with the public interest standard being set by the FCC. If a corporation, LLC, views itself as a “People’s Forum,” it needs to abide by standards in the public interest, not stockholders.

And if influencers or those who are public figures want to continue to be amplified with algorithms, they must also have a public interest standard, and part of the public interest is not threatening violence or encouraging harm.

Finally, the (re)passage of Net Neutrality.

We shouldn’t have to wait until wealthy white people are harmed before we fix this. The Internet does not have lifeboats to get away from the radicalized iceberg of white supremacy that will be coming. We need to put up safeguards, before our country sinks.

Teka Lo, Public Intellectuals

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