The U.S.Supreme Court ruled on two cases earlier this year involving rights on digital space. On October 31, the Court heard arguments on two cases — Lindke v. Freed and O’Connor-Ratcliff v. Garnier — involving government officials blocking private citizens from their personal social media accounts. These cases have inspired students to take a stance on some of the individual rights in the Constitution and look at how they apply in real life and online. 

The U.S. Constitution serves two primary purposes: designing a government and placing limits on it to prevent arbitrary rule. The Constitution guarantees every American fundamental rights and protection of life, liberty and property through its amendments.

However, one of the Constitution’s most significant flaws when it was created was the provisions for slavery, which were ultimately ended through the Emancipation Proclamation on Jan. 1, 1863, and through the 13th Amendment in 1865.

“Obviously, the people who made the United States Constitution were flawed, but so are all of us. I’m not saying that to justify anything that they did, but if you look at what’s in there, they guaranteed a lot of freedoms to a lot of people, certainly not as many people as they should have,” junior Will Gonsior said. “But in many ways, it was a step forward. And it’s a document that continues to protect people to this day.” 

For over 230 years, the Constitution has been the cornerstone for governance and rights. However, during this time, the landscape of the American lifestyle has changed drastically to include artificial intelligence, algorithmic decisions and social media. Today, people spend a significant amount of time, interactions and transactions online, making students wonder how the Constitution applies in today’s technological society and if it needs to evolve with time.

“I’m not an emotional guy with the Constitution, neither am I a Constitution expert. But I know, a good amount, and I don’t think our Constitution does [protect us] to the extent that we need it to yet. Because the Constitution isn’t really built for the internet,” Atkinson said. “Although [Constitutional rights] can be applied to the internet, it’s not always the same. And things get fuzzy on the internet and then bad outcomes can happen. So I think that there are some things that have to be changed.”

THE FIRST AMENDMENT

“When you start talking about the Bill of Rights, I think that it absolutely addresses the rights of citizens, specifically, the important right to freedom of expression as enumerated under the First Amendment,” Gonsior said. “I think [it] does a great job of protecting the ability for everyone to be who they are, both online and offline. And I think that it remains the best tool for protecting freedom of expression because it simply guarantees it everywhere. And I don’t see why you would need to change that.”

According to the American Bar Association, the First Amendment only limits governmental actors — federal, state and local — but there are good reasons why this may not be adequate in today’s society. Certain powerful private entities — particularly social networking sites such as Facebook, Twitter and others — can limit, control and censor speech more than governmental entities. 

“On one hand, you can say that it’s not a government-owned platform. It’s a company, and so they presumably have the right to operate based on their own goals and values. They can just tell anyone to get out of there or potentially remove any content they wish to,” Atkinson said. “But at the same time, these social media platforms have become so gargantuan that they’re effectively a place where everyone in the world hears. So they need to carry more responsibility to protect people’s rights on their platforms, and the Consitution may need to step in.”

On Sep. 29, 2023, the Supreme Court agreed to decide whether state laws that seek to regulate Facebook, TikTok and other social media platforms violate the Constitution. The justices will review laws enacted by state legislatures and signed by governors in Florida and Texas that aim to prevent social media companies from censoring users based on their viewpoints.

“I think that big platforms like Instagram, Facebook [and] Twitter should be able to ban people within reason because if you’re posting dangerous or other horrible things that are clearly not allowed on the platform, you’re gonna get banned. But if you’re stating a political opinion, no matter how extreme it might be, under the First Amendment, I do believe that you should have the right to be there,” Atkinson said.

On the other hand, experts in the tech sector warn that creating such laws would prevent platforms from removing extremism and hate speech.

“I don’t think we need to add anything to the First Amendment, but I think we could change the way we enforce it,” Gonsior said. “All people have a protected right to freedom of speech, but if someone is being censored for something they have said, and their right is not being protected, the government needs to protect that and take action. The government has legal grounds to do that, even without changing the constitution.”  

Section 230 of the Communications Decency Act provides immunity to online platforms from civil liability based on third-party content and for the removal of content in certain circumstances. The Act serves two purposes.  First, it addresses unclear and inconsistent moderation practices that limit speech and go beyond the text of the existing statute. Second, it addresses the proliferation of illicit and harmful content online.

Earlier this year, in May 2023, The Supreme Court ruled on two cases, Google v. Gonzales and Twitter v. Taamneh, involving families of terrorism victims. The court opined that Google, Twitter and Facebook did not help foster the terrorist attacks.

“Technology companies [are] places for the exchange of ideas,” Atkinson said. “And if you give these people an inch, they can take a mile. If you give social media companies the power to go beyond that, it’s very hard to draw a line and say, ‘you can’t go beyond X point’ and then effectively legislate that.”  

Drawing a line on free speech has been a constant debate both online and offline. The situation of free speech related to topics of terrorism, hate speech and crime can be clear-cut. However, there are situations where the protection cannot be guaranteed. 

In June, the Supreme Court ruled against the Counterman v. Colorado case, revealing First Amendment limits on laws banning online threats. The case concerned Billy Counterman, a Colorado man who became obsessed with a singer-songwriter, sending her disturbing messages on Facebook. 

“I think the songwriter should be able to block the fan and basically shut down on the direct speech between the two of them,” Gonsior said. “Because that’s not public speech, that is private speech. Even before the digital age, you can refuse to have a conversation with someone; that’s always been the case, and that’s always been protected. And blocking someone individually, one-on-one is a very different action than blocking someone from a public sphere like Twitter where you’re interacting with everybody.”

Another threat is misinformation and disinformation. According to the Brookings Institute, fake news and sophisticated disinformation campaigns are especially problematic in democratic systems. There is growing debate on how to address these issues without undermining the benefits of digital media. In order to maintain an open, democratic system, it is important that government, business and consumers work together to solve these problems. 

“The conundrum that arises at the end of the day, you can’t censor anything for being misleading or even wrong content,” Gonsior said. “There are some big legal issues with removing something that somebody claims they believe, even if it’s wrong, and I think that, especially in states where they’ve legislated against it, you can’t do it. And that might hurt some people, but they should probably be finding more reliable sources of information. Until we change something, we need to work harder to find accurate information.“ 

THE SECOND AMENDMENT 

According to the Washington Post, semiautomatic firearms technology didn’t exist in any meaningful sense in the era of the founding fathers. They had something much different in mind when they drafted the Second Amendment. 

“I think that there are some changes that could be considered to the current Constitution and to its amendments based on the evolution of technology since the time the Constitution was written,” Gonsior said. “I feel like in the age of nuclear weapons, enumerating to all people the right to bear arms without making that more specific can be dangerous.” 

In a digital world, arms can extend beyond physical weapons. Eric Rice, an expert in cryptography, argues that in a digital world, cryptography qualifies as a weapon, as the U.S. government has asserted for decades, and so deserves consideration for Second Amendment protection. Cryptography is  “the art or practice of writing in code or cipher” to keep something secret. Although it is not new, it was previously restricted almost entirely to governments until the advent of computer systems. Because of the historic use of crypto in warfare to send coded messages, cryptographic devices, and software are considered munition according to the International Traffic in Arms Regulations (ITAR) and is regulated by the U.S. Department of State since the 1970s. However, today, almost every protected information online is encrypted, from passwords to financial information, such as banking and credit card data. Students in AP Computer Science are exposed to the basics of cryptography and have a similar stance on constitutional protection of cryptography

“Most of my phone data is encrypted and several messaging platforms I use have an end-to-end encryption feature which I like. I feel we would use more encryption apps in the future and possibly more at an individual level and if we use it to protect our own data, we need it to be protected from the government,” computer science student and senior Jason Tsao said.

THE FOURTH AMENDMENT

Regarding the freedom of privacy, the Fourth Amendment grants the right for people to be secure in their houses, persons, houses, papers, and effects against unreasonable searches and seizures. 

“This is an important one, and I think it’s one that was violated with the Patriot Act, which has since been repealed. I think that people have a right not to be searched online, not have their private information looked through by anyone without a reasonable reason or without consent, including the government,” Gonsior said.

Although it is very easy to search and track someone online, the Fourth Amendment continues to protect people from government searches online and offline. United States v. Jones, was a landmark United States Supreme Court case in which the court held that installing a Global Positioning System (GPS) tracking device on a vehicle and using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment and needs a warrant.

“First, I think people should take responsibility for keeping their activity or comments online private and be careful about what they post in public spaces. For example, on Discord, I should have the option to keep my stuff confidential if I want to, and I should take all the necessary steps to keep it private,” Tsao said. “Having said that, I see how Discord itself has access to everyone’s data no matter we choose to be private or public, and they could access all my private information if they want to. The same could be applied to the government [they could access any available information]. It is concerning that nothing is 100% private online, even if the user chooses to be, and I feel the current constitution leaves several questions unanswered on protecting our privacy online.”

ARTICLE III, SECTION 1 

Article III, section 1 of the Constitution establishes and empowers the judicial branch of the national government. All the judges and the Justices of the Supreme Court are appointed by the President and confirmed by the Senate and are tenured for life. 

“We should just have an equal number of Democratic and Republican justices. Or [appointing the judges] should be a nationwide vote,” Atkinson said. “It is not right that a position where we expect unbiased rulings [is] appointed by the president with a strong political inclination. Also, since the President is able to appoint Supreme Court justices, they can effectively be just another hand of the president. That’s against the checks and balances we believe our government is based on. And because there’s no term limit, even after the President leaves office, if that justice is still loyal to that former President, [the former president’s] power isn’t totally gone because of the Justice still there.” 

One proposed solution is splitting up how justices are selected. Three justices would be appointed by a Democratic president, three appointed by a Republican president and three voted in by citizens. 

“If we have to rely on political and presidential appointments, we divide justices equally among Republican and Democratic Presidents, [as well as] party and public voting, [something] like 3-3-3]. And definitely have term limits,” Atkinson said.

The debate on the terms of Supreme Court judges is also an ongoing one. Experts feel that longer terms have led to an increasingly political confirmation process and a court more likely to be out of touch with the general public.

“I do not think that we should institute term limits for Supreme Court justices because the intention behind the Supreme Court was that the views of the people on that court and

the era that they’re from would lag behind,” Gonsior said. “Being directly elected by the Senate and the President, they act as a check and balance and against having too much reform in any particular generation.” 

ARTICLE II, SECTION 1 AND THE TWELFTH AMENDMENT

“Another important issue that needs to be considered for overhaul is our electoral college and the electoral process, to make it more fair and more equitable and proportionally representative,” Gonsior said.

The Electoral College is one of the most controversial processes in our democracy, according to the Brookings Institute. The process can lead to candidates who lose the popular vote being elected President of the United States. This has happened five times in American history, including in 2000 and 2016. 

“[The Electoral College] protects smaller groups and less populated states, without which presidential election might depend only on who New Yorkers and Californians pick. Although I see the pros of the Electoral College, I would like a better system. In this technological age, we could leverage technology to help us create a better solution and a better way to represent all people,” Tsao said. 

However, amending the Constitution is not easy. It has only happened 27 times in the last 229 years. Article V of the Constitution provides that an amendment may be proposed either by Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the State legislatures.

“Amendments to the Constitution are not needed,” Gonsior said. “However, continuous monitoring and regulation of emerging players and technology is necessary. And that can be done through legislation.”

Experts from Princeton University feel that the Constitution has withstood the test of time for over two centuries, and to ensure its continued longevity, citizens need to take a more significant role and become guardians of our Constitutional values. 

“I agree that citizens need to be more willing to uphold the Constitution. Citizens can act as checks and balances on both advancing technology and the government,” Gonsior said. “Voting is the greatest check. [Voting] in all elections, especially in party primaries. Primaries often have more influence, even though they draw fewer votes. And then, the best way to check advancing technology is to limit the use of technologies that you don’t trust — create an incentive for companies to be safe.”