is brought to you by: Swiss International Airlines.

Flying to over 70 worldwide locations.

Truly Swiss-made.

Swiss International Airlines.

And by the BMW European Delivery Program.

A way to experience the roads that BMW was made to drive.

BMW European Delivery Program.

And by the Cygnet Foundation.

Raising funds for those in need through art-related initiatives, contributions to UNICEF, and animal welfare organizations.

The Cygnet Foundation (music) "Travels & Traditions" with Burt Wolf is a classic travel journal, a record of Burt's search for information about our world and how we fit into it.

Burt travels to the source of each story trying to find the connections between our history and what is happening today.

What he discovers can improve our lives and our understanding of the world around us.

(bright patriotic music) - On September 17th, 1787, 39 delegates to the constitutional convention gathered at Independence Hall in Philadelphia and signed the Constitution of the United States of America.

About a year later, the first Amendment to the Constitution was adopted.

The First Amendment says that the government will make no laws restricting freedom of speech.

I wanted to see how that was working out so I began talking to a group of experts on the subject.

Lee Bollinger was the president of Columbia University for two decades.

- The First Amendment was, of course, part of the original Bill of Rights in the 18th century, but it wasn't interpreted, it wasn't given the full definition that it has today until this past century.

Over the past 50 years, the court came up with a variety of doctrines that are quite complex, very interesting and very important.

It is a major question whether those doctrines, those principles, those ideas, should continue to govern how we think about free speech and free press in the environment we have today with the internet and social media.

- [Burt] Lawrence Lessig is a law professor at Harvard University and an authority on the suppression of free speech.

- We know that what they really were worried about was the government, particularly the executive, trying to suppress speech before it was published to the public.

And so the real protection that was intended by our framers was this protection against censorship in advance or a suppression of the speech in advance.

And the main speech they were concerned about, obviously, was speech related to politics or to regulating the government.

So the objective was to make sure you couldn't silence critics of the government in advance, give 'em a chance to publish.

That doesn't mean that what they publish wouldn't have consequence.

You know, if they lied or they defame somebody, then they could be punished for that after they've published, but it would stop the suppression of speech in advance.

- The First Amendment's restriction on the government's ability to pass laws on freedom of speech only applies to the government.

Individuals, private companies, including the media, are not required to honor the right to freedom of speech.

That means they can ban any speaker they wanna ban.

And if their plan for staying in good stead with the government requires them to limit your freedom of speech, they can limit it.

- Columbia University is a private university for purposes of the First Amendment and we choose to live by the the First Amendment, but if we chose not to, there's nothing in the First Amendment, as it's applied, as it has been applied, that would allow a lawsuit against Columbia to change its policies and abide by the First Amendment.

The same thing is true of Facebook, of Google, Twitter.

These are private organizations and under the state action doctrine of the Constitution, the First Amendment does not apply.

- [Burt] In 1969, the Supreme Court said that the First Amendment protects the right to receive information and ideas regardless of their social worth.

A few years later, the Supreme Court stated that the government has no right to restrict freedom of speech because of the message in that speech.

- It has not been, cannot be an absolute.

Every now and then you'll hear somebody, even somebody as famous as Justice Black or Justice Douglas, saying that free speech is absolute.

But we all know that freedom of speech does not prevent the government from prosecuting somebody for perjury or for engaging in insider trading of information.

- One of my favorite cases about freedom of speech involves the citizens of Virginia suing the government of Virginia.

The government of Virginia had passed a law that prevented pharmacists from advertising prescription drug prices.

Prices varied throughout the state.

A group of consumers challenged the law.

Justice Blackman reasoned that the case concerned not only commercial regulation, but the free flow of information.

He pointed out that the First Amendment is intended to protect the hearers as well as the speakers.

The case was as much about the public's right to receive information as it was about the druggists' right to send it.

Freedom of speech involves the sender and the receiver.

The court said that if the First Amendment means anything, it means that a state has no business telling someone sitting alone in their own house what books they may read or what films they may watch.

Our whole constitutional heritage rebels at the thought of giving government the power to control the minds of its citizens.

However, our right to freedom of speech is not absolute.

The courts have recognized a number of limitations.

- The First Amendment actually had very little effect on government's regulation for most of the history until the early part of the 20th century.

That's, in part, because the framers of our constitution really expected, not that courts would protect freedom of speech, but that legislatures were and would.

And so when legislatures passed laws, so long as they were purporting to advance the public good, courts would not really question those laws.

The only thing courts were concerned about was suppression of speech outside of the context of laws.

But during the early part of the Antebellum Period before the Civil War, Congress expressly suppressed the distribution through the postal services of anti-slavery tracts, and there was a suppression of speech during the Civil War of speech supporting the South.

And in the First World War, there was suppression of speech that would create the Alien Sedition Act that would create, as the government conceived of it, sedition or resistance to the war effort.

(jubilant music) - During the First World War, the U.S. government passed the Espionage Act of 1917, which limited freedom of speech.

It imposed a maximum sentence of 20 years in prison for anyone who caused or attempted to cause insubordination, disloyalty, mutiny, or refusal of duty in the military or naval forces of the United States.

(subdued music) The Merriam-Webster dictionary defines the word obscene as "Depicting or referring to sexual matters in a way that is unacceptable in polite society."

Which raises the question, what is a polite society?

In my experience, it changes from day to day, place to place, and culture to culture, as does the meaning of obscenity.

While we were researching the history of laws dealing with obscenity and pornography, we came across this rather interesting comment by Supreme Court Justice Potter Stewart who said, "While I cannot precisely define pornography.

I know it when I see it."

The First Amendment protection of free speech does not apply to obscene speech.

And so for many years, both the federal and the state governments have tried to suppress any speech which they consider obscene.

When I was a kid, books that were banned included "Lady Chatterley's Lover," "Catcher in the Rye" and "Ulysses" and copies of "Playboy" magazine faced in on the magazine stand so you wouldn't be confronted with the cover.

(subdued music) Another restriction on the freedom of speech relates to the rights of convicted criminals.

Some states have what are called Son of Sam laws, they prevent convicted criminals from publishing memoirs for profit.

These laws were a response to offers by the book publisher Simon & Schuster, to the serial killer David Berkowitz for his memoirs.

The ruling in that case did not prevent the publication of a book by a convicted criminal, but what it did say is that all profits from that book had to go to an organization that distributed those funds to victims of crime.

(serious music) One of the major limitations on freedom of speech relates to defamation.

Defamation is a written or spoken statement that falsely damages someone's reputation.

- Defamation is what's called a tort, and tort is an area of law where if you hurt someone else, you injure them, you cause physical damage or personal damage, injury to them, and you have behaved unreasonably, that person can sue you in court for compensation.

That's the basic concept of a tort.

Among the various torts is that of libel or defamation, and strictly defined, it is if you make a false statement of fact that injures a person's reputation.

Under certain conditions of state of mind and proof, you can be forced to pay damages including punitive damages, not only compensatory damages, to the person whose reputation you have injured.

(gentle music) - In 1974, the U.S. government passed the Privacy Act, which prohibited the collection of information about an individual which is to be used by another.

Over the years, several other bills were passed designed to protect the privacy of our data.

So how come every company I deal with has an enormous amount of information about me and everyone I know?

Well, there appear to be two primary reasons.

One, private citizens ceaselessly sharing information about themselves on social media.

- We're talking about- - Or on network television.

- [Reporter] And how safe people's passwords are.

What is one of your online passwords currently?

- It is my dog's name and the year I graduated from high school.

- [Reporter] Oh, what kind of dog do you have?

- I have a Chihuahua Papillon.

- And what's its name?

- Jameson.

- Jameson.

- [Reporter] And where'd you go to school?

- I went to school back in Greensburg, Pennsylvania.

- [Reporter] What school?

- Hempfield Area Senior High School.

- Oh.

When did you graduate?

- In 2009.

(audience laughs) - [Reporter] Oh, great.

- Two, check the release form you signed probably without reading it, when you signed up to use an online platform.

And now we are facing the technological capacity of artificial intelligence, which could expand the risks of intrusion into our private lives.

We get tracked online by social media, travel sites, healthcare institutions, schools, banks, and even grocery stores are tracking what we eat.

And all of this information is contributing to a digital profile, trying to predict and manipulate our behavior so that companies that gather the information can make a buck from what they find out about us.

(bright music) The debate about freedom of speech in connection with who said what, when, where, and about whom has been going on for hundreds of years.

During the 1600s, the English writer John Milton, commented on freedom of speech.

He felt that freedom of speech included the right to search for information and ideas, the right to receive information and ideas, and the right to impart information and ideas.

In 1789, the leaders of the French Revolution adopted a Declaration of the Rights of Man, which confirmed that freedom of speech was an inalienable right of every citizen.

Until, of course, you said something they didn't like, at which point they cut off your head, thereby drastically reducing your freedom of speech.

(modem screeches and beeps) The extraordinary access to the internet has raised a number of new issues about freedom of speech and the right to hear.

- But we're only at the beginning of understanding what will be the relationship of the First Amendment and this new technology of communication, the internet and its platforms.

When you say that your freedom of speech is impacted by social media platforms, I think you're saying two things probably.

One is that the platforms have magnified your ability to speak to the world in ways unimaginable before.

Everything you now say on a social media platform, or in other forms on the internet, is not only instantly available to everybody else on the internet in the United States, but all over the world.

It is a global communication system of instantaneous exchange of ideas.

- [Burt] Os Guinness is an expert on the history of religious liberty as it relates to the First Amendment.

- Anyone today can be heard anywhere in the world because of the internet and so on, but obviously in a democracy some will prevail in social arguments and some will not, but everyone should have that right to enter and engage.

Now, to do that, you need what are called the three Rs of religious freedom: rights, responsibilities, and respect.

- [Burt] There are also conditions in which freedom of the press may constrain freedom of speech.

For example, what happens if the people who control the various publications decide to suppress information?

In that case, freedom of the press is guaranteed only to those who own one.

No money, no voice.

- Well, of course, historically, unless you owned a press, you didn't really have a lot of freedom to make sure everybody heard your thoughts.

You could stand on the park square and say what you want, and people walking by would have to hear it, but it was very hard to get your work published unless it was in the interests of the publisher to distribute your work.

That, of course, has changed dramatically because of the rise of the internet.

You know, anybody can post a webpage and depending on which web hosting site it, you know, probably will not even be monitored based on what's on that webpage.

- For democracy to work, people need to know what's going on.

We need a free flow of information.

You can't have a democracy if those in power can manipulate the electorate by withholding information and stifling criticism and prioritizing news based on their own ideas.

From time to time, you'll hear someone claim that they are manipulating information for the public good.

However, choosing manipulation destroys the idea of democracy by communicating an individual form's relationships and associations with others; family, friends, coworkers, and religious congregations.

By entering into discussions with others, an individual participates in the development of knowledge.

You discover common values and understand people's perspective.

(subdued music) There are some things you just can't say because they would harm other people, like yelling "fire" in the theater where there is no fire.

There are also limitations based on time, place, and manner that apply to all speech.

Regardless of the views expressed, they're intended to balance other rights or a legitimate government interest.

For example, a time, place, and manner restriction might prohibit a noisy political demonstration at a politician's home during the middle of the night because that impinges upon the rights of the politician's neighbors to quiet enjoyment of their own homes.

And an otherwise identical activity might be permitted if it happened at a different time, during the day, at a different place, a government building or another public forum, or in a different manner, a silent protest.

- Now, there's also an important category of speech in social media context where the social media companies have decided, I think quite appropriately, that certain kinds of speech just is not gonna be allowed on their platforms.

So hate speech, speech tending to incite, speech that's provably false, but consequence of that speech would be to create public health hazards.

I mean, there are all sorts of categories where they've decided, "Our platform is not gonna be the sort of place where this sort of speech exists."

Just like "The New York Times" has decided its platform, "The New York Times" newspaper, is not gonna be the sort of place where hate speech or outrageous speech or false speech, to the extent they can control it, is gonna exist.

It's the same type of editorial judgment, but it's a judgment being made by the algorithms, primarily not by humans sitting there reviewing op-ed submissions to "The New York Times."

- As you enter the headquarters of the British Broadcasting Corporation in England, you will see a statue of the author George Orwell, who wrote "1984" and "Animal Farm."

He constantly focused on the rights of the individual and the government's efforts to curtail them.

The inscription on the wall behind him reads, "If liberty means anything at all, it means the right to tell people what they do not want to hear."

- Well, I would stand with George Orwell, that truth fundamentally matters and the freedom to argue for our convictions of what is true is incredibly important, and without it, freedom will die.

So I'm opposed to all the forms of censorship and political correctness and all these things coming in in any area, whether academia or the social media or whatever.

This is an absolute disaster.

And those who love freedom must love truth, and they must love freedom of conscience and free expression.

(gentle music) - United States Constitution doesn't contain any specific reference to the right of privacy.

However, the framers of the Constitution were very concerned about an individual's right to privacy.

As a side issue related to freedom of speech and the right to privacy is the right to take photographs of people in a public place.

This may come as a surprise, but the law allows someone to take a photograph of someone else as long as the person taking the photograph and the person being photographed are standing on public ground.

That is not the case in all countries.

However, there are some restrictions which include public bathrooms and sports club locker rooms.

If you take a picture in a place where someone has a reasonable expectation of privacy, you are violating their right to privacy.

You can be charged with a criminal act and a civil lawsuit for damages.

You might also like to keep in mind the Federal Video Voyeurism Prevention Act.

The act makes it illegal to intentionally capture an image of a private area of an individual without their consent.

I wonder if that includes my bald spot.

- Well, you know, the uniqueness of the human being, unlike all other animals, is our capacity to think back through memory and think forward through vision and imagination.

And that should be true of our societies too, with a profound sense of history, for better or worse, and an enormous sense of what we're striving for to do better tomorrow.

And so it's very important to expand our view of memory and history and expand our view of what we're striving for to reach, ideals that we haven't yet reached, but we want to in our lifetime or the next few generations.

- Freedom of speech is significant, but if no one can hear what I'm saying and I can't hear what other people are saying, the whole point of having freedom of speech is lost.

On a closing note, I would like to quote Mark Twain who said, "The most important exercise of freedom of speech is the right to fully express your feelings after you have hit your thumb with a hammer."

(Burt chuckles) Ah, that's the first part of our freedom of speech, the right to hear and the right to be heard.

Please join us for our next program in this series right here on your public broadcasting station.

(bright music) If you'd like to see this program again, or any of the hundreds of programs we've made for our public broadcasting stations, visit BurtWolf.com or the Burt Wolf YouTube channel.

(bright patriotic music) (bright patriotic music continues) (bright patriotic music continues) - [Announcer] "Travels & Traditions" with Burt Wolf is brought to you by: Swiss International Airlines.

Flying to over 70 worldwide locations.

Truly Swiss-made.

Swiss International Airlines.

And by the BMW European Delivery Program.

A way to experience the roads that BMW was made to drive.

BMW European Delivery Program.

And by the Cygnet Foundation.

Raising funds for those in need through art related initiatives, contributions to UNICEF, and animal welfare organizations.

The Cygnet Foundation.

(bright music)