Freedom of Speech

The late 1990s witnessed a number of key speech issues. In 1998 Mayor Rudolph Giuliani of New York City attempted to "civilize" the city by regulating certain activities including street vendors. A number of lawsuits claiming free speech violations resulted when higher fees were charged to operate newsstands and for street musicians. A case involving permit requirements for sidewalk artists went to a federal appeals court which held that selling art was a form of protected speech and could not be selectively regulated. The U.S. Supreme Court declined to hear the case. Highlighted was the tension between the city government attempting to manage its public spaces and people seeking to preach and sell their wares in public.

The courts continued to be asked what speech needed protection for the sake of democracy. Should it really include advertising, product labeling, or campaign contributions in cases with little clear connection to politics? Campaign spending and contributions were not pressing issue, through most of the twentiethth century. But with expansion of First Amendment protections to campaign contributions in 1976, the cash-driven electoral system of the 1990s evolved into what many believed to be counter to the democratic participatory ideals of the founders. Prohibiting regulation of campaign contributions appeared to place the political process under the influence of the wealthy. Fearing violation of free speech, Congress rejected a proposed constitutional amendment in 1998 that would have given Congress and the states authority to establish campaign spending limits.

In 1997 Congress passed the Communications Decency Act imposing criminal penalties for distributing "indecent" material. The Supreme Court in 1998 overturned the act based on free speech concerns. By the late 1990s it was becoming increasingly apparent that traditional means of censorship and conceptions of First Amendment rights did not readily apply to the new world of online media with technologically advanced forms of communication. Words were no longer associated with physically identifiable objects such as books and magazines, the cost of copying was greatly reduced, and even the concept of "publishing" changed. With the demise of decency laws and continued interest in regulating the range of Internet content, emphasis shifted from censorship by the sender of information and material to censorship by the receiver. New Internet access management software capabilities were created under direction of the World Wide Web Consortium to filter material being received on a content basis. The Consortium, an independent body supported by the internet industry, sought to formalize standards and protocols for the Web. Offensive or unwanted material could be blocked by the receiver. Congress also began considering legislation imposing self-rating requirements for internet information providers. Issues of free speech and personal privacy were central to deliberations.

A call came forward with the advent of technologically advanced systems to fundamentally refocus the application of the freedom of speech more to desired goals, rather than more narrowly focus on prohibitive forms of government regulation. Legislation was needed to protect free expression on its own merits, rather than allowing for such liberties to be protected only in a reactive mode. Concern grew over the increasing ability of private and corporate interests to restrict the free flow of information. The primary threat to censorship was no longer considered the government.