Creating Legal Policy for GIFs and Memes: Expanding the Scope of Free Speech
The introduction of new forms of communication on social media, such as memes and GIFs, poses a new legal policy question: how should the law adapt to these new forms of communication? Creating a policy that adapts to these novel forms of expression heavily focused on specific graphics or depictions along with limited written speech is neither simple nor straightforward. In determining how the law should address the use of memes and GIFs as a form of communication, what, if any, protections under the right to Free Speech, and what limitations should exist on this right need to be considered. GIFs and memes are two forms of non-verbal communication that are often used to communicate within social media websites and text messaging. Although the user is not using their own words or explicit language to communicate a message/feeling/etc., the use of a GIF or meme allows one to communicate without actually having to type a message using words. Memes and GIFs are very similar in their intended purpose, with the general difference being that a meme tends to be static and non-moving1Arwa Haider, How the GIF Won the Internet, 2017. BBC Culture. BBC. http://www.bbc.com/culture/story/20170825-how-the-gif-won-the-internet., while a GIF is an animation on loop.2Id.
The First Amendment states, “Congress shall make no law . . . abridging the freedom of speech, or of the press.”3U.S. Const. amend. I. Freedom of speech generally allows an individual to say, write, and express themselves in any manner they choose to.4Id. “Although the First Amendment refers specifically to the freedoms of speech and press, it in fact encompasses a wide range of expression beyond publications and the spoken word. All art forms — including plays, music, dance, film, literature, poetry and the visual arts — enjoy considerable First Amendment protection.”5Ken Paulson, Arts and First Amendment Overview, (2004). Freedom Forum Institute. https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/arts-first-amendment-overview/. By applying the textual language of the Amendment along with the case law, GIFs and memes should generally be protected as forms of expression under the First Amendment. GIFs and memes should be considered artwork because they are forms of expression that generally repurpose TV/media, political statements, and other viral concepts in pop culture to express certain emotions, feelings, jokes, or other ideas.6Id. Since TV/movies, media, and other forms of art are considered expressions of speech, and are protected under the First Amendment,7Id. this protection should be applied to GIFs and memes as well.
The Supreme Court held in Bland v. Roberts that clicking on the “like” button was considered a “substantive statement,” and that a user “may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual keystrokes is of no constitutional significance.”8Bland v. Roberts. 730 F.3d 368 (4th Cir. 2013). This landmark decision was revolutionary in expanding the definition of protected speech and establishing that explicit language was not required in order to be protected under the First Amendment. GIFs and memes are comparable in this manner since they do not always incorporate written language.9Id. By applying this holding to GIFs and memes, one would imagine that posting or sending a GIF or meme would be considered making a substantive statement in the same manner that clicking a “like” button would. That a “single mouse click” or creation of a GIF/meme would “produce that message… instead of typing the same message with several individual keystrokes [is of] no constitutional significance.”
The First Amendment is not an undeniable right, and there are certain exceptions that exist for public policy reasons, such as “incitement, fraud, obscenity, child pornography, speech integral to illegal conduct, speech that violates intellectual property law, true threats, and commercial speech such as advertising.”10What Does Free Speech Mean?, (2019) About Federal Courts. United States Courts. https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/what-does. These are all categories of speech that have less or even no protection, due to the intent and results of these modes of speech.11Id. If GIFs and memes should be afforded the same protection under the First Amendment, these limitations should apply to GIFs and memes as well in the interest of furthering public policy. The Supreme Court held in Elonis v. United States, there generally needs to be evidence that the expression is intended to serve as a threat (subjective intent standard), as an objective intent standard would wrongfully hold an innocent party liable because the “crucial element that makes this behavior criminal is the threat, not merely the posting.”12Elonis v. United States, 575 U.S. (2015). Based on this holding, it would make sense to apply the standard of subjective intent to a GIF or meme that could be conceived as threatening, because it is “not merely the posting,” but the actual “threat,” that would constitute criminal liability.
Copyright laws cover issues that can arise when using someone else’s intellectual property (media content), for example, to create and share a GIF or meme.13Michelle Panzironi. Animated GIFs And Fair Use: What Is And Isn’t Legal, According To Copyright Law. Forbes. https://www.forbes.com/sites/propointgraphics/2016/04/30/animated-gifs-and-fair-use-what-is-and-isnt-legal-according-to-copyright-law/#32a51ec1371b. April 20, 2016. A copyright is intended to give an author or their assigns (people to whom a copyright is transferred to from the author) certain exclusive rights.14Id. Copyright laws emphasize the priority of an owner’s ability to have dominion and control over the “derivatives of their work, where or how their work is shared, and their right to proceeds.”15Id. Peter Van Valkenburgh, a legal expert in the realm of copyright law, reports that, “as of 2013, there is no U.S. case that definitively states whether creating a GIF made from copyrighted material is or isn’t copyright infringement” which complicates one’s ability to analyze “whether or not [ ] usage falls under the doctrine of ‘fair use.’ ”16Ken Paulson, Arts and First Amendment Overview, (2004). Freedom Forum Institute. https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/arts-first-amendment-overview/. Since GIFs and memes would fall under artistic and intellectual works, copyright law would apply to GIFs and memes as well.1717 U.S.C. § 107 (2012). Although there is no current explicit law regarding how copyright law would apply to GIFs and memes, the Fair Use Doctrine provides guidance on how creative content, including GIFs and memes, should be used in order to maintain protection as Free Speech.
Fair use is generally based on the content creator’s intent, but not generally based on the actual content or the nature of said content.18Id. Fair use generally applies when the original material is used for a limited and what is considered a “transformative purpose.”19Id. A “transformative purpose” describes use that is not going to undermine the ability of the original content creator to gain profit or undermine the market of the original work.20Id. Examples of transformative purpose include, “commentary, criticism, or parody,” with the example that no one is going to substitute a movie GIF for watching the original movie upon which it was based.21Id. Regarding how transformative purpose is defined, GIFs and memes should be protected under the First Amendment as long as the use is for “commentary, criticism, or parody,” and do not present as economic competition for the copyright holder.
When expanding the scope of law to create new policy, it is important to not only determine what is relevant in application based on the legal precedent in place, but also to analyze what future implications and potential consequences may result from that policy. Legal precedents have recognized that unlimited free speech can be harmful, establishing why limitations need to be put in place. However, limitations must be effective in serving their intended purpose without being too restrictive. Throughout history, the Supreme Court has made strong arguments as to why the exceptions to free speech should be as limited as possible. As Justice Kennedy wrote in Ashcroft v. Free Speech Coalition, “First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”22Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). Determining where to draw this line should generally be a case-by-case analysis. Although the Supreme Court has generally tried to restrict limitations on free speech, there are certain instances when exceptions have stronger support, such as when minors are involved. The Supreme Court has established the precedent that free speech should be limited on platforms that target children or are frequented by minors, requiring a heightened standard of what media content (including GIFs and memes) can be accessed by those who are under the age of 18.23United States, et al. v. American Library Association, Inc. et al., 539 U.S. 194, 123 S.Ct. 2297, 156 L.Ed.2d 221 (2003).
Based on the textual analysis of the First Amendment, courts generally have held strongly that written or verbal speech was protected under the Constitution.24U.S. Const. amend. I. However, throughout history, the Supreme Court has continued to extend what exact forms of expression are protected under free speech,25Texas v. Johnson, 491 U.S. 397 (1989); Tinker v. Des Moines School Dist., 393 U.S. 503 (1969). including literary content, political statements, media content, and visual art work. Since memes and GIFs qualify as media content utilized for the function of expression, protections should be extended to these forms of communication and expression as well. Recognizing that freedom of speech is not an undeniable right and that there are limitations under the First Amendment and copyright laws, these limitations should apply to GIFs and memes as well. Although the Supreme Court has generally ruled in favor of upholding the First Amendment and generally does not want to limit its protections, limitations are necessary to protect against undue harm. Determining where the line is drawn should be based on determining at which point greater harm is created, whether it is limiting freedom of speech/expression or the effects of unlimited free speech? This should be determined by a case-by-case analysis that appropriately relies on the First Amendment limitations based on Supreme Court precedents. Although these competing interests are difficult to balance, it is pertinent for new policy to not only address the existence of GIFs and memes but also effectively protect them as a means of expression, while continuing to effectively anticipate the limitations required to protect society from undue harm.
Article by Meghana Vodela