Freedom of Speech, The War on Terror, and What's YouTube Got to Do with it: American Censorship During Times of Military Conflict.

• Author: Morgans, Melissa J.

TABLE OF CONTENTS I. INTRODUCTION 147 II. BACKGROUND 149 A. There is a Growing Issue of Terrorist Speech on the Internet Due to the Viral Nature Internet-Based Speech 149 B. The United States Government Has Historically Censored Speech During Times of War 151 C. Despite This Historical Precedent, the First Amendment Permits Censorship of Speech Only in Limited 155 Circumstances III. TERRORIST SPEECH ON THE INTERNET SHOULD BE CENSORABLE BY THE GOVERNMENT 159 A. Censoring Terrorist Speech Today is Consistent with the Tradition of Restrictions on Anti-Government Wartime Speech 159 B. Targeting Internet-Based Speech is Consistent with the Tradition of Restrictions on Uniquely Invasive Media 161 IV. THE "STOP TERRORIST ORGANIZATIONS FROM PROMOTING INTERNET TRANSMISSIONS ACT" COULD PERMISSIBLY REGULATE TERRORIS SPEECH ONLINE 164 A. STOP IT: The Stop Terrorist Organizations from Promoting Internet Transmissions Act Would Give the FCC the Power to Regulate Terrorist Speech Online 164 B. STOP IT Would Provide a Medium Through Which Censorship of Terrorist Speech Could be Narrowly Tailored to Meet Constitutional Muster 166 C. If STOP IT Were to Fail Constitutional Muster, an Alternative to this Act Would be the Creation of a Uniform "Code of Ethics" for Major Social Media Sites 170 V. CONCLUSION 170 Our liberty depends on the freedom of the press and that cannot be limited without being lost. (1) --Thomas Jefferson. I. INTRODUCTION

On August 19, 2014, the extremist group, Islamic State of Iraq and Syria (ISIS), uploaded the beheading of American journalist James Foley on YouTube captioned as, "A Message to America." (2) The "Message" spread to other social media sites, including Twitter and Instagram, within minutes. (3) New York Times writer Hanna Kozlowska called the video a "modern guillotine execution spectacle." (4) Following the upload, a user-based movement, #ISISMediaBlackout, swelled in an attempt to stop the circulation of the video. (5) Instead of uploading the video or screenshots from the video onto social media platforms, users were encouraged to post the #ISISMediaBlackout hashtag along with photographs of Foley. (6) Foley's sister, Kelly Foley, tweeted in response to the video: "Please honor James Foley and respect my family's privacy. Don't watch the video. Don't share it. That's not how life should be." (7) On August 20, 2014, YouTube and Twitter removed the gruesome video citing their corporate take-down policies. (8)

The posting and subsequent removal of Foley's video implicates the age-old First Amendment debate on the scope of freedom of speech. To Thomas Jefferson, and those like him, freedom of speech was a uncompromising and universal democratic right. (9) It remains one of the greatest hallmarks of the Bill of Rights. (10) However, during times of war, military conflict, or prolonged hostilities, civil liberties, such as freedom of speech, rival the need for order and authority. (11) Fear of military defeat scales the balance towards order, resulting in the restriction of an individual's right to freedom of speech. (12) Today, this historical tension is further complicated by modern forms of media, and begs the question whether videos like the one posted about Foley should be considered censorable by the government or constitutionally protected free speech. (13)

This Note addresses the current wartime speech issue: terrorist speech on the Internet. First, Part II evaluates the historical practice of wartime censorship, tracing wartime censorship to two root causes: active anti-government speech and uniquely intrusive visual mediums. Second, Part II then analyzes the United States Supreme Court's reaction to restrictions on free speech, looking at its strict scrutiny test and the separate doctrine of incitement. Part III analyzes how this historical practice of censorship during times of war justifies a government-based censorship initiative of terrorist speech on the Internet.

Part IV proposes and analyzes a potential Act, Stop Terrorist Organizations from Promoting Internet Transmissions (STOP IT,) that would regulate terrorist speech on the Internet. The proposal in Part IV will address whether the Federal Communications Commission (FCC) could serve as an appropriate regulator of terrorist speech, assuming congressional support. It concludes by suggesting that the historical pattern of wartime censorship is unlikely to change, and that legislation empowering the FCC power to regulate certain forms of terrorist speech on the Internet would be a step in the right direction of matching the historical practice of censorship with the legal doctrine of free speech. If "STOP IT" were to fail constitutional scrutiny, an alternative tactic could involve developing a uniform "Code of Ethics" for all major social media sites that could be implemented on a voluntary basis to curb the influence of terrorist speech.

2. BACKGROUND

   The Internet is the new frontier for First Amendment expression. (14) News can "go viral," and be viewed by millions of people within hours. (15) This fast-paced, ubiquitous medium is now being used by terrorist groups to solicit members and inflict fear by sharing extremely violent videos. (16) In response to this trend, theorists have responded by testing ideas that either over or under regulate Internet speech. (17)

   1. There is a Growing Issue of Terrorist Speech on the Internet Due to the Viral Nature Internet-Based Speech.

      Terrorist groups use the Internet to spread their messages quickly to large audiences by posting content that "goes viral," (18) which results in videos, comments, and all types of expression appearing on peoples' computer screens within minutes. (19) When a video goes viral, as a consequence of social network structures and "word of mouth pressure," (20) Internet users view the material involuntarily through a whirlwind of headlines, video clips, and articles circulating on Facebook, on Twitter, through e-mail, on web browsers, and more. (21) This phenomenon of fast-paced viral media has led to terrorist organizations actively recruiting and spreading videos of violence, like Foley's video, through mass media Internet sources. (22) In 2012, Al-Qaeda used Internet forums, such as the forum Shumukh al-Islam, to recruit people willing and able to perform terrorist attacks. (23) In 2014, ISIS managed to recruit over 6000 new members over the Internet in just one month. (24) ISIS, in particular, as acknowledged by former FBI Director James Comey, is "very effective in using Twitter and other social media to communicate with potential recruits and spread its message online." (25) In response to ISIS's campaign, the United Kingdom (UK) has responded with an Internet-based anti-terrorism initiative to report online terrorist communications. (26)

      The UK's Counter Terrorism Internet Referral Unit uses URL blocking to block website content that is deemed censorable by the current terrorist-based regulation: content that incites or glorifies terrorist actions. (27) Examples of content that satisfy this standard are: "articles, images, speeches or videos that promote terrorism; content encouraging people to commit acts of terrorism; websites made by terrorist organizations; and videos of terrorist attacks." (28) These types of expression are deemed censorable because of their "extraordinary" effect on the public. (29) First, videos of terrorist attacks are easily and quickly sent around the Internet to glorify acts of violence. (30) Studies demonstrate that exposure to violence through mass media significantly increases aggressive behavior of adults and children. (31) Second, websites made by terrorist organizations and videos that promote terrorism have the real effect of glorifying acts of terror as well as recruiting members to their cause. (32)

      Both the issues of violent videos and terrorist recruitment have been addressed by social media websites themselves. (33) Individual websites employ their own take-down policies to regulate forms of expression on their websites. (34) YouTube's "Don't Cross the Line Policy," Facebook's "Reporting Abuse Policy," and Twitter's "Abusive Behavior Policy" are examples of corporate policies that are regularly enforced to take down user content. (35) Facebook receives thousands of government requests to take down material. (36) Facebook publishes the number of government requests worldwide it receives on a semi-annual basis, (37) with government data requests "to restrict or pull content" climbing by eleven percent in their 2015 report. (38) Twitter recently announced that since the middle of 2015 over 125,000 accounts have been suspended due to promoting terrorism or extremist activities. (39) The company posted: "As the nature of the terrorist threat has changed, so has our ongoing work in this area." (40) In other words, the threat of terrorist speech to the Internet is real.

   2. The United States Government Has Historically Censored Speech During Times of War.

      The United States is a nation founded upon freedom of speech and press, yet it is also a nation that has consistently restricted these rights. (41) During times of war, freedom of speech has been restricted through acts of federal authority, by the media, from citizens to other citizens, and even by self-censorship. (42) These forms of censorship have created a traceable historical practice of restricting certain types of speech during war: the furthering of perceived anti-government or anti-American ideas, and the visual indications of the woes of war--gruesome photographs of American war dead.

      Media censorship has existed from the birth of the United States. (43) During the Revolutionary War, Patriots stole "Loyalist" and British newspapers such as the New Hampshire Gazette and New York Packet, while continuing the delivery of Patriot newspapers. (44) Fifteen years after the end of the Revolutionary War, the Sedition Act of 1798 was enacted to criminalize...