First Amendment doesn’t have a passport #law #blogging #media #defamation #censorship

By MARK PEARSON

It might only be 45 words long, but if you are an American journalist, blogger or  social media user you can’t pack the First Amendment in your luggage when you travel abroad.

The famous 14 word portion protecting free expression in the United States – ‘Congress shall make no law … abridging the freedom of speech, or of the press’ – does not travel well when your Web 2.0 material is viewed in foreign lands.

That shouldn’t worry you if you have published within US law and are happy to sit at home in North Dakota or Hawaii tapping away on the device of your choice.

But you should think twice before stepping on an aircraft and touching down in a jurisdiction where there are tougher gags on free expression.

Of course, you don’t have carte blanche at home, either. Even the US draws the line at criminal publications involving prohibited materials like child pornography or engaging in criminal activity such as fraud or terrorism.

But there are many things you can publish on social media or on blogs in America that can trigger lawsuits, harsh fines or jail terms in some countries.

Here are some situations where your First Amendment won’t help out:

  • Hate speech: A US District Court decision in 2011 reinforced the strong protections for angry and inflammatory words under the First Amendment. Judge Lynn Adelman had to consider the free expression rights of neo-Nazi Bill White who was charged over using a website to advocate violence against the ‘enemies’ of white supremacy, including a juror in the trial of a fellow extremist. Judge Adelman allowed his appeal on the grounds that he had not made a direct call to violence against the juror and that White’s speech had First Amendment protection. Judge Adelman explained that the US Constitution ‘…protects vehement, scathing, and offensive criticism of others, including individuals involved in the criminal justice system, such as Juror Hoffman’. He ruled that even speech advocating law-breaking was protected unless it was directed at inciting immediate lawless action and likely to prompt it. The decision sits with earlier Supreme Court hate speech judgments which have found that all but communications integral to criminal conduct – fighting words, threats and solicitations – have free expression protection in America. This is not the case in most other countries, where such comments can see you fined or jailed under laws of blasphemy, vilification or race hate. Australian historical revisionist Fredrick Toben was jailed in Germany for publishing Holocaust denial material on the Internet. In Nigeria, Algeria, Egypt, Tunisia, Sudan and some Middle Eastern countries offenders can be jailed or even executed for blasphemous statements or actions.
  • Immunity for comments of others: In the US, s. 230 of the US Communications Decency Act (1996) gives immunity to anyone hosting the comments of third parties. It states clearly: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Internet service providers (ISPs) and bloggers are protected from actions over material published without their knowledge on sites they host. This is not the case in many other countries. Earlier this year an Australian Federal Court found a health company was responsible for Facebook and Twitter comments by fans on its accounts in defiance of a court order that the company not make misleading claims about its allergy treatments. The court ruled that the company should have taken steps to remove the comments as soon as it had become aware of them, as Addisons Lawyers explained. The company and its director were fined $7500 each. In the Middle East, anonymous political comments by a blogger on the website of Bashar Al-Sayegh landed the Kuwaiti journalist in jail for three days in 2007.  He was charged with insulting the emir of Kuwait and called upon to explain how he allowed the comments to remain on his site for several hours.
  •  Defamation: Under special US protections, you can get away with false publications about celebrities and other public figures as long as you are not being malicious in your attacks. Again, you need to be wary of less forgiving laws in other places, particularly if the celebrity has a reputation they wish to defend elsewhere – people like British actor Hugh Grant or New Zealand film-maker Peter Jackson. The strong US defence stems from New York Times v. Sullivan (1964), where the Supreme Court invoked the First Amendment to rule that public officials had to meet tough new tests before they could succeed in a defamation action, even if the allegations were false. In the US, plaintiffs need to prove the falsity of the material, while in the UK and its former colonies the burden is on the publisher to prove the truth of libellous material. ‘Public figures’ in the US also have to prove the publication was malicious before they can win their cases. All this means you face much less chance of libel action in the US over your writing on important public matters, but you need to be careful if you are posting scandalous material about private citizens, particularly if you know the allegations are untrue. Rock icon Courtney Love learned this $430,000 lesson earlier this year. In Canada, the UK and Australia the ‘responsible communication’ or ‘qualified privilege’ defence requires the publisher to demonstrate that they made proper inquiries in the lead-up to their defamatory expose of an issue of public concern, even though they were ultimately unable to prove its truth.
  • Exotic foreign laws: The countries of the world with the highest level of censorship maintain tight control over expression and take firm action against online writers who use the Internet to question their authority. This is when the blogger becomes a ‘dissident’ and any use of new media for political expression – or even the use of certain media at all – can land the offender in jail. Reporters Without Borders has released a list of enemies of free Internet speech (pdf file): Burma, China, Cuba, Iran, North Korea, Saudi Arabia, Syria, Turkmenistan, Uzbekistan and Vietnam. They are countries where bloggers, journalists and other ‘dissidents’ have been imprisoned or tortured for daring to write what they think or for encouraging others to do so. Even Thailand, a nation with a relatively free and vibrant media, issues lengthy jail terms under its ‘lese majeste’ laws for any material critical of its royal family. Colorado resident Joe Gordon was detained for 84 days in Thailand this year and faces a charge of translating an unauthorised biography critical of the king.

So, what does it all mean for the average American journalist, blogger or microblogger? Quite simply: think before you publish, and think before you travel.

You won’t be extradited and tried by aliens if you keep within the law of your own country. But you should revise your travel itinerary to avoid countries whose governments or citizens may have been offended by your blogs or postings.

If you have been particularly provocative in your writing and you really must travel then consider your other 54 US state and territory jurisdictions or perhaps pack your bags for a Scandinavian vacation. While they don’t have a First Amendment, those countries usually come in well ahead of the US on the Freedom House and RSF free expression rankings.

© Mark Pearson 2011

Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer! My only advice is that you consult a lawyer before taking any legal risks.

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