Social Clashes

• Author: David L. Hudson Jr.
• Pages: 40-47

T he now-retired U.S. Supreme Court Justice

Anthony Kennedy, in an opinion on a 2017

First Amendment case , called the cyber age

a revolution of historic proportions, noting

that “we cannot appreciat e yet its full dimen-

sions and vast potential t o alter how we think, express

ourselves, and defi ne who we want to be.”

Kennedy said cyberspa ce, and social media in par-

ticular, was among the “most impor tant places ... for

the exchange of views.” He compared the interne t to a

public forum, akin to a public stre et or park. Although

Justice Samuel A. Alito c oncurred in the opinion, he

also chastis ed Kennedy for his “undisciplined dicta”

and “unnecessar y rhetoric.”

But Kennedy’s lofty languag e in Packingham v.

North Carolina accurat ely observed that the greatest

battleground for free ex pression both nationally and

globally occurs onl ine with social media. “That la n-

guage refl ects Justice K ennedy’s long-sta nding view

that the public forum doctri ne should not remai n

frozen in time, lim ited to protecting public squares

and public parks, while new forums for public debate

go unprotected,” explain s free-speech expert Kev in

O’Neill, a professor at Clevela nd-Marshall School

of Law. “It will be interesting to see whether tod ay’s

judges respond to his cal l.”

This hot battleground rai ses serious concerns about

the future of free sp eech, including attempts at cen-

sorship by government actors cr itical of comments on

social media, t he shifting standards of privat e plat-

forms to censor online ex pression and the rise of hate

and extremist spe ech in the digital world.

The ABA, recog nizing the urgency and timeliness of

these issues, has chosen “Fre e Speech, Free Press, Free

Society” for thi s year’s Law Day theme. ABA President

Bob Carlson notes that these t hemes have dominated

public discourse and debate recently.

GOVERNMENT BLOCKING

One issue involves government o cia ls blocking or

removing critica l comments online. In a sense, this

PHOTO ILLUSTRATION BY BRENAN SHARP/SHUTTERSTOCK; CHIP SOMODEVILLA/GETTY IMAGES

40 || ABA JOURNAL APRIL 2019

Retired Justice

Anthony Kennedy