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The state of free speech in 2013: an excerpt

Posted By Michael A. Bamberger, Friday, January 18, 2013

In this excerpt from his front-page article from the most recent Freedom to Read Foundation News, attorney Michael A. Bamberger gives his thoughts on the state of free speech in 2013. FTRF members can read the entire article online at  FTRF News is issued quarterly to all members of the Freedom to Read Foundation and to newsletter subscribers.

The beginning of a new calendar year following both presidential and local elections is a good time for all of us engaged in the regular day-to-day protection of First Amendment rights in individual situations to step back and consider, more broadly, where we are and where attacks on free speech rights are likely to occur in 2013.

National issues

Looking back at the 2012 party platforms, it is interesting that, while the 2008 Democratic platform spoke of enabling parents to block content objectionable to them on TV and online, and of increasing enforcement resources to counter child predators on the Internet, the 2012 Democratic platform mentioned neither of these matters. The 2012 Republican platform called for vigorous enforcement of all forms of pornography and obscenity statutes, but it is notable that First Amendment issues were not central to the campaign of either candidate. Perhaps this reflects the fact that recently there has been less pressure at the federal level to pass censorial legislation. Thus, it is likely that, at the federal level, during 2013, there will not be extensions of laws directly criminalizing speech.

However the continuing unnecessary classification, as "secret,” of federal governmental speech and extensions of the scope of privacy laws also constitute restrictions on free speech. In each case there is a countervailing interest, but both classification and privacy laws can be used to limit communication and discussion of matters of public interest and concern. Those of us concerned with free speech must be alert to the dangers of such extensions.

With respect to Internet freedom, all this is complicated by the global nature of the medium. The First Amendment does not apply to those outside our borders. Governmental restrictions elsewhere in the world, particularly restrictions not obviously censorious (such as privacy restrictions, which are broader in other parts of the world including the UK and the EU), can have significant chilling effects on US-based speakers on the Internet, especially speakers who have a presence in the relevant foreign jurisdiction.


Michael Bamberger is General Counsel of the Media Coalition. Among his many cases, he served as counsel in Hudnut v. American Booksellers Association, a challenge to an overly restrictive Indianapolis anti-pornography ordinance. In 1985, the Supreme Court affirmed the lower courts’ decisions to strike down the ordinance as unconstitutional.

Bamberger was the recipient of FTRF’s Roll of Honor Award in 2012.

Tags:  2013  free speech  FTRF News  Media Coalition  Michael Bamberger 

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