Regulating Speech Online

The Internet has the potential to revolutionize public discourse. It is a profoundly democratizing force. Instead of large media companies and corporate advertisers controlling the channels of speech, anyone with an Internet connection can "become a town crier with a voice that resonates farther than it could from any soapbox." Reno v. ACLU, 521 U.S. 884, 896-97 (1997). Internet speakers can reach vast audiences of readers, viewers, researchers, and buyers that stretch across real space borders, or they can concentrate on niche audiences that share a common interest or geographical location. What's more, with the rise of web 2.0, speech on the Internet has truly become a conversation, with different voices and viewpoints mingling together to create a single "work."

With this great potential, however, comes new questions. What happens when anyone can publish to a national (and global) audience with virtually no oversight? How can a society protect its children from porn and its inboxes from spam? Does defamation law apply to online publishers in the same way it applied to newspapers and other traditional print publications? Is online anonymity part of a noble tradition in political discourse stretching back to the founding fathers or the electronic equivalent of graffiti on the bathroom wall? In this class, we will look at how law and social norms are struggling to adapt to this new electronic terrain.

Readings

• Larger Threat is Seen in Google Case NYT

• David Margolick, "Slimed Online," Portfolio.com, February 11, 2009, read all

• Doe v. paulitwalnuts, et al., 3-07-CV-0909 CFD (D.Conn.), Complaint, filed 6/11/07, skim pp. 1-16 Warning: explicit and disturbing language

• John Palfrey and Adam Thierer, "Dialogue: The Future of Online Obscenity and Social Networks," Ars Technica, March 5, 2009, read all

Additional Resources

• Wikipedia on Reno v. ACLU.
• ACLU v. Gonzales, 478 F.Supp2d 775 (E.D.Pa. 2007), read pp. 1-7, 61-74, 82-83; skim pp. 74-81.
• Lawrence Lessig, Code 2.0, Chapter 12: Free Speech
• EFF Bloggers' FAQ: Online Defamation Law

Class Discussions

Comments on class readings by D. Jodoin:

Out of respect and deference to the victims we have read about this week, I will avoid using anyone's names. I can't help but think that due to the fact we are an internet published wiki that we are complicit - even if only to a minor extent - regardless of our intentions and motives. Jean Jacques Rousseau once wrote "Fame is but the breath of people, and that often unwholesome."

I state this because there are two questions I am forced to ponder due to this week's readings. By discussing events like this - in this forum - are we increasing the public awareness of the atrocities that occur as a result of the internet in hopes that we can work toward a positive change? Or are we inadvertently playing into the hands of the anonymous "trolls" and their desire to wreak havoc on the lives of others purely for their own amusement; contributing to their desire to see their hateful words spread in the public forum?

In class we have learned - through the progression of a series of study topics - that the internet provides a platform where people can create sites for an intended purpose. Yet often we find that users of those sites enjoy them for reasons the creators may not have envisioned. Sometimes users find new and better purposes for a site, other times the result is less desirable - the platforms being used to engage in socially unacceptable publication of content to unacceptable exhibitions of behavior to sometimes outright illegal acts. One could argue that this has always been the case in any forum. However, we have also seen how viral the internet can be in its ability to bring to national and sometimes international attention those topics, people, and events that once would have been left to obscurity.

Do we take lessons from Apple and Microsoft in their pulling the porn apps and filtering of certain lewd search terms respectively? Should we support their actions to serve as good citizens in their attempt to provide a product that they feel is in keeping with the social norms of the people they look to service? Or should we protect intermediaries like Google, who seems content in serving up whatever content they have access to index?

The public has a right to protect themselves from being exposed to inappropriate content. We also have the right to protect ourselves from public slander and libel. When you walk into a store and examine the magazine rack, you will quickly notice that magazines with adult content are wrapped with obscured plastic and kept on shelves with high wooden slats such that the content is not available to those who choose not to purchase it. What is wrong with that? Where is my plastic wrapper hiding the offensive material that exists on the net?

And as intermediaries of content on the internet - from which they piggy back their revenue generating advertisements - shouldn't they also have responsibility in the content they serve to the public? Shouldn't the intermediaries be just as responsible for the content they serve to the public as those that created it?

--Lunatixcoder 13:21, 6 March 2010 (UTC)

The example you cited of Apple pulling their apps with adult content is a tricky area and highlights the eroding division between the Internet and phones. I was personally happy that Apple decided to pull those apps. However, I can't really figure out to defend my support for the move. Perhaps because I considered my phone as distinct from the Internet, I did not want obscene content diffusing into the App Store. But smart phones are essentially computers now, so it is hard to justify regulating their content differently than the Internet. I am inclined to think that phones are much more public since users carry them around all the time. If someone wants to look at obscene content, traditionally he would be confined to the privacy of his home, but now with smart phones he could be browsing this content while sitting next to me on the train or in a coffee shop. Even this distinction is weak, because people use computers in public as well. I am curious how others might argue for or against Apple's move. (Kaurigem 02:39, 7 March 2010 (UTC))

Comments by Paul Amante