Freedom of Speech and Cyber Threats

• Publication year: 2000
• Pages: 79
• Citation: Vol. 29 No. 7 Pg. 79

29 Colo.Law. 79 Colorado Lawyer 2000.

2000, August, Pg. 79. Freedom of Speech and Cyber Threats

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79

Vol. 29, No. 7, Pg. 79

The Colorado Lawyer
August 2000
Vol. 29, No. 8 [Page 79]

Specialty Law Columns
Technology Law and Policy Review
Freedom of Speech and Cyber Threats
by Letty Friesen

Freedom of speech is a principle so fundamental to our government construct that few can imagine life without it.1 Nevertheless, this freedom is not absolute. "The First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired."2 Different and new situations abound in which the right to free speech must be reconciled with other equally important and competing rights For example, courts throughout this country recently have struggled to balance a patient’s right to privacy against abortion protesters’ right to speak.3

The Internet also has created a new challenge to protecting the right to freedom of speech. As the number of websites on the Internet increases,4 so does the need to balance the freedom of speech issue associated with some sites with other important rights and ideals. In fact, Colorado has seen just such a need played out in the events surrounding the Columbine High School tragedy. On April 20, 1999, Eric Harris and Dylan Klebold attacked fellow high school students with bombs, knives, and guns.5 These young terrorists had access to, if not reverence for, websites that described and encouraged violent behavior.6

In the wake of the Columbine tragedy, other youngsters launched cyber threats at Colorado residents. In November 1999, a 19-year-old sent an Internet threat to a former girlfriend of Eric Harris’s.7 One month later, an 18-year-old Florida resident, identifying himself as "Soup81" on the Internet, threatened to finish what Harris and Klebold had started.8 In addition, in January 2000, a 15-year-old Pueblo resident allegedly left a threatening message in a chat room that found its way to a Colorado State University student.9

Violent speech is by no means an issue limited to the state of Colorado.10 In New Jersey, an 11-year-old girl sent e-mails in which she threatened to shoot her classmates.11 In Redmond, Washington, a high school student created a website aimed at attracting other Eastlake High School students to post their thoughts on a bulletin board and discuss topics of interest in the chat room. However, in the fall of 1999, the website created to accommodate their interests carried a death threat.12

How can this society protect freedom of speech—including speech about violence —without foregoing the very real need to protect itself against acts of violence? Perhaps the answer lies in the case law that attempts to construct just such a balance between "true threats" and protected speech rather than in the attempt to create medium-specific regulations for the Internet. This article discusses the application of old law to this relatively new medium and this attempt to balance the right of freedom of speech with the need to protect society against violent acts

The Right to Free Speech On the Internet

The Colorado Constitution provides, in pertinent part

No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty; and in all suits and prosecutions for libel the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact.13

While enforcing the right to free speech, the Colorado Supreme Court re-affirmed the "high rank which free speech holds in the constellation of freedoms guaranteed by both the United States Constitution and our state constitution."14 The Court further stated:

The United States Supreme Court and this court have been extraordinarily diligent in protecting the right to speak and to publish freely. Whether this is because free speech has been conceived as a means to the preservation of a free government or as an end in itself, the results have been the same.15

In fact, the Colorado Supreme Court declared that the right to freedom of speech is greater in scope under the Colorado Constitution than that guaranteed by the First Amendment to the U.S. Constitution.16 The Court has explained...