Regulating Speech Online

February 26

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, in the words of the Supreme Court, “become a town crier with a voice that resonates farther than it could from any soapbox.” (Reno v. ACLU). 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, 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 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.

Download slides from this week's class.

Readings

• Citizen Media Law Project Legal Guide: Defamation

• Wikipedia, Section 230 of the Communications Decency Act

• David Ardia, Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity Under Section 230 of the Communications Decency Act (Read all of Section I, Parts C&D of Section II, and Conclusion)

• John Palfrey & Adam Thierer, "Dialogue: The Future of Online Obscenity and Social Networks" (Ars Technica)

• Case Study: The SPEECH Act

• Wikipedia, Funding Evil (focus on the “Libel Controversy” section)

• 111th U.S. Congress, H.R. 2765, “Securing the Protection of our Enduring and Established Constitutional Heritage Act” (“SPEECH Act”)

Optional Readings

• Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)

Links

Links from Adobe Connect Session

US Constitution: http://www.archives.gov/exhibits/charters/constitution.html

State constitutions: http://www.constitution.org/cons/usstcons.htm

US regulations are in the Code of Federal Regulations: http://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR

Map of the circuit courts and their jurisdictions: http://www.uscourts.gov/uscourts/images/CircuitMap.pdf

The Supreme Court has been taking fewer and fewer cases: http://www.nytimes.com/2009/09/29/us/29bar.html?_r=0

The International Shoe test: https://en.wikipedia.org/wiki/International_Shoe_v._Washington

A very influential case addressing websites is a district court case from Pittsburgh called Zippo Manufacturing v. Zippo Dot Com, Inc: https://en.wikipedia.org/wiki/Zippo_Manufacturing_Co._v._Zippo_Dot_Com,_Inc

A more recent case of "Libel Tourism" - this time concerning parties from Ethiopia: http://blog.indexoncensorship.org/2013/02/25/london-libel-ruling-against-ethiopian-dissident-shows-urgent-need-for-reform/

Shaari v. Harvard: http://masscases.com/cases/sjc/427/427mass129.html

This org has done a lot to make sure that online sites have to remove child porn: http://www.missingkids.com/home

The NPR talk show On Point with Tom Ashbrook had a segment on Cyberbullying and Sexual Shaming: http://onpoint.wbur.org/2013/01/28/cyberbullying

Class Discussion

In watching last week's lecture on the topic of free speech on the Internet it only reminded me that if the United States is to become the leader, or even respected in the Internet world we must design our laws and programs more to promote collaboration with other countries and cultures than using imperialistic measures as we have done since the Monroe Doctrine was formulated. The Wiki rule that that site required collaborative efforts rather than the majority rules principal.

We need to establish our goal of what our participation on the Internet is. If we continue to insist only our way is the right way,God's way then we will never reach and be respected by other cultures. Is it not better to compromise than bully others to follow our culture, rules and principals such as free speech?

Rich 11:39, 4 March 2013 (EST)

TAG: Student ID#10789842

The discussion on Why, How, and Who was insightful. It made me to examine deeper into the concept of online behavioral intent on both a micro and macro level. This specific space (Online) when examined, allows you to weigh both sides of the coin. In one argument censorship or content, which controls this behavior shapes our participation in the internet. On the other side of the coin freedom of speech. Politically more and more countries have taken the position to restrict and control the internet through designed "Nation Boundaries" as mentioned in class.

In the readings concerning the laws of defamation and the restriction of content on the internet, it appears to be flawed. Depending on your country of jurisdiction the interpretation of the laws of defamation or control are interpreted differently. In a global information world which we are all a part of, restrictions are becoming tighter and tighter. An example is France restricted Yahoo to having Nazi memorabilia online. Another way to review this precedent set by the French government, is what if a corporation made tremendous acquisitions? If fundamental islamic fanatic group was to acquire Google, Bing, or both, it could become a paradigm shift in controlling the internet from an acquisition stand point. The article "Funding Evil" extends this point by exam terrorist groups that may try to use these resources to distribute their messages of hate.

The readings and the discussion in the class this week was very interesting and I appreciate it.

Have a nice week. Interestingcomments 17:06, 22 February 2013 (EST)

This week there were fabulous document that discussed internet security. Programs such as our adobe can at times be considered to indexed. Here the issue is whether hyperbole or preposition is defined or at least contextualized. Bearing with the notion that "more is better" I shall continue typing: Here the reader shall notice that a program as it may be quoted is merely a type of application that is for sanitary use. Therefore, the internet decidedly is not the same as a program and the program is not necessarily reliant on the internet per se. In conclusion to this stream of logic the type of compartmentalized information is not the actual understanding that something can be a mobile storehouse of information without affirmative action. Since computers are only affirmative in their position there leaves the possibil;ity for autocorrecting such documents and this very notion is the idea here of internet security. Johnathan Merkwan 12:51, 26 February 2013 (EST)

Reading the Wikipedia article on Section 230 of the Communications Decency Act prompted me to think about cyber-security and where liability should fall if private information was hacked and released and later deemed as defamatory. Earlier in the course I posted a Gizmodo article on Apple’s iMessage server being hacked and I am beginning to wonder if, as online hubs of information grow to become more institutional, individuals who are targets of cyber attacks will start blaming the companies that have their private information stored on their servers. I foresee that as the internet and cloud take on greater roles in the institutionalization of business and everyday life, that issues like these will start arising. As to the Ars Technica interview, I think that scaling back protection for service providers in order to protect children presents a weak claim. I think doing so would severely alter the costs of operating a site like Myspace or Facebook. Also, it is my personal belief that a parent should be responsible for teaching their children how to correctly use the web and exercise safe practices online. I feel that extending liability and limiting free speech poses a great danger at a minor benefit of altering section 230 for a very specific purpose. AaronEttl 15:37, 23 February 2013 (EST)

I was very interested to read about Section 230 of the Communications Decency Act. I very much support the idea that the internet service provider should not be held liable for individual's misuse of their publishing service, where the company itself does not exersize creative control over the content (i.e. deleting a post is not a basis for liability). Although I am not an expert, this regime would seem to be different from Canada where we have witnessed very prominent internet communities being brought to their knees by posts made by one or two offenders. My proposed research article, on lawbuzz.ca, will be very much concerned with ideas contained in the s. 230 of the CDA and I looking forward to comparing your legal regime with Canada's. Joshywonder 21:35, 25 February 2013 (EST)

In was quite an interesting read about Section 230 for this class, however in my view, suing diverse websites for such defamatory content is virtually impossible. Since the information is distributed, diverse websites seem to be immune from liability and responsibility to screen or remove the offending content. Who is responsible then? While a clear understanding of Section 230 is present, its critics are more valuable and portray a completely new approach when dealing with Internet content facilitators. In my view, interpretation of Section 230, can grant an immense immunity to companies or website that provide service or content (inappropriate) to realm the defamation factor altogether. What about speech? In my view, defamation is not only the single area of law, but it could be found as a refuge under Section 230 immunity. A section 230 has been interpreted so broadly in my view, that it has protected diverse types of speech, which was intended to prevent from precise inappropriate behavior. user777 11:12, 26 February 2013 (EST)

The readings on Section 230 reminded me of Zittrain's argument that it was not inevitable that the internet world would turn out the way it is today. I think Section 230 and the way the courts have broadly interpreted it to protect internet service providers and social website companies has been, and still is, key to the success of the internet and maintaining that spirit of freedom the internet is known for. I agree with AaronEttl that Section 230's protections shouldn't be narrowed, especially if the reason is to increase online safety for young users. In addition to traditional education ("don't talk to strangers" adjusted and applied online), there are also plenty of parental filtering tools that can be used by individuals themselves. ISPs and websites that are not content publishers should not be held responsible for the actions of internet users, although they certainly can act according to their own company policies, which in turn would be determined by the company's principles, values, and target audience/market. It is not the shopping mall owner's fault if a person walks in and suddenly strips naked or does something worse. --Muromi 11:43, 26 February 2013 (EST)

I concur with Joshywonder’s statement above: I support the idea that the Internet service provider should not be held liable for individual's misuse of their publishing service. However, in some circumstances, I think the Internet provider should play a mitigation role. While reading about defamation this week, online bullying emerged in my mind. Social networking has changed the landscape with bullying, especially for children and adolescents. Mass media presents a series of legal issues, as outlined on the Citizen Media Law site, but defamation via media has always been present. Online confrontation among elementary and high school students highlights a distinct reality. An adult may take action if one’s name is tarnished, but youth will rarely take bullying to the legal arena. That said, it would be interesting to read more case studies surrounding the actions service providers have taken, when youth defamation scenarios have surfaced. In our readings this week, the examples were excellent, but I’d also be interested in learning about specific cases against Facebook, or Twitter, or Orkut. Furthermore, it would be interesting to investigate reactions from other countries. For example, do other governments/courts of law acknowledge online youth bullying, and if so, is action taken? Or, is online bullying more prevalent in the U.S. due to cultural/environmental factors?

It has become apparent in the first month of this course that online “freedom of speech” is a complex topic. I very much enjoyed the discussion between John Palfrey and Adam Thierer, because both arguments shed light on valid points. Thierer: “What I worry about, is that a new liability standard might not leave sufficient room for flexibility or experimentation. If Congress altered Section 230 (or the courts tipped the balance) such that negligence claims could be brought too easily, I think that could have a chilling effect on a great deal of legitimate online speech, especially for many smaller social networking sites and up-and-coming operators.” This argument is in-line with our readings from two weeks ago: More Confusion about Internet “Freedom.” Suppressing freedom of speech can, in some circumstances, cause more damage than good. If inhibited, our founding principles may not be upheld; but at the same time, there is an enormous unknown gray area between right and wrong communication practices.

Palfrey’s response in reference to this statement is also worth noting: “My proposal would be to leave the question of negligence on the part of service providers….[W]e need a range of community-based solutions that put parents, teachers, coaches, mentors, kids themselves, law enforcement, social workers, technologists and online service providers to work.” In other words, the battle to uphold decency cannot be done alone. Society at-large must step up to the plate as online communication evolves. It begins with new policies and trickles-down through law enforcement officials, community leaders, and parents, ultimately impacting the instigators. Although “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” as outlined in the Wikipedia post (Section 230 of the Communications Decency Act), we all play a role to protect the vulnerable. Many youth who are bullied have no options available, no protection, and no escape. Given recent tragedies surrounding youth defamation, from my perspective, extreme circumstances should be analyzed on a case-by-case basis and pursued as appropriate. Zak Paster 12:05, 26 February 2013 (EST)

@Zak, I agree with your general stance on ISP immunity from individual expression, but, like Adam Thierer from the reading, I’m not as clear on the extreme circumstances that would warrant an information provider to intervene. Let’s take your example of online bullying. Online bullying does not happen in a vacuum; it usually happens as an extension of real-life interactions. This creates a number of concerns. First, how will an information provider recognize bullying? The danger is that this could be broadly interpreted. It may not be bullying at all, but an inside joke or nod to some real life context. It would be impossible to understand the entirety of the context offline. Second, if content is taken down or mitigated, this could make it seem as though the victim needed to seek out help. That might make the victim feel more weak and disempowered and it might exacerbate the bullying in real life. So I guess my question is, when it comes to something like online bullying, how do we make it so that the victim still has control over the situation and not make it seem like some third party came in to resolve the issue (because the victim tattletaled) ? I agree society at large needs to protect the vulnerable, especially in public forums. And I agree that we as a society must manage online bullying, we just have to be careful that the solution is not just “this is bullying, remove the content.” Asmith 15:48, 26 February 2013 (EST)

I was interested in the issues raised by Funding Evil and impressed by the speed in which several states and then Congress responded to the verdict against the author in the UK. I did some follow up research on the topic, and could find one of the four other texts that were taken out of publication available on line, and was interested in how the libraries who had purchased one of the earlier texts (Alms for Jihad) responded to the publisher's request to destroy the book. (They didn't. And then several moved the books to reserve or hold desks so that they could make sure the book was not stolen or destroyed.) I checked the mainstream newspapers of the US and could find no review of the book Funding Evil, either before or after the court case in the UK, and it had me wonder if the book has gotten significantly more readers and attention from the trial and the publicity surrounding the trial then it ever would have received without it. Alms for Jihad, did not receive the attention or the increase in sales (it is, I think, out of print, and only available at libraries who have not destroyed it and also online as a pdf.) What can and cannot be written on the internet, who gets to decide, and who is liable if someone makes the wrong decision looks to be something we will be discussing as a society for quite a while. Bullying, lies, false information are all easier on the internet, but also more public, easier to find out and if you are an adult, easier to counter by publishing your own response. Raven 16:49, 26 February 2013 (EST)

The American people are, as a rule, hostile towards the dubious authority of international law; in instances in which foreign actors initiate civil proceedings against Americans in foreign countries, no American stands to benefit should the American state comply with the demands of an alien court. While couched in a simpering context of self-righteous "principle," the SPEECH Act correctly secures the prerogatives of Americans to say and do as they please, irrespective of the preferences of those whose interests the American government does not exist to represent. Although, perhaps understandably, the Act concedes the authority of foreign states to punish expression given the application of defamation laws analogous to our own, the spirit of the SPEECH Act defends those whose interests its purpose it to defend- the American people- instead of confusing the interests of the world community with the interests of a state and its citizens, which is what opponents of legislation like the SPEECH Act insist that states and their citizens do. Johnfloyd6675 17:19, 26 February 2013 (EST)

The Communications Decency Act provides legal immunity from liability for internet service providers who publish information provided by others. In my opinion, this is a common sense law which is just - you shouldn't attempt to hold an ISP legally liable for what their customers post online - as well as practical, as holding an ISP accountable would give them significant responsibility to screen and monitor all their customers' Internet activity, which not only would would be unusually burdensome but also would possibly infringe on some of their customers' privacy rights. Online service providers should be no more liable than any similar physical-based offering. CyberRalph 17:33, 26 February 2013 (EST)

Just a quick link to share. This is a great and simple visualization of net neutrality: http://www.theopeninter.net/ Asmith 22:46, 26 February 2013 (EST)

Having been a criminal (and thus also a Constitutional) trail and appellate lawyer for decades I have always had a profound interest in the First Amendment. It is one of the most misunderstood of all of our 'inalienable rights.' The Bill of Rights did not even apply to the states until almost 80 years after the Constitution was amended to include the first 8 amendments with the enactment of the 14th Amendment. But, even today most believe that Freedom of Speech is a protected right in all media, when in fact the 1st Amendment clearly states that "Congress shall pass no law ...". It does not apply to private entitles and individuals that restrict free speech. Name it, Facebook, You Tube, Twitter, Wikipedia all can restrict free speech. Wiki claims that it does not censure content, but contradicts itself by admitting it is not a forum for unlimited free speech.

I retired from private practice just as the Internet was becoming popular in the mid-1990s so I never had the opportunity to defend anyone charged with downloading child or other pornography. I wish I had had that chance because I find it shocking that an individual can be criminally prosecuted for simply downloading material that is allowed to exist on the Internet. I can think of no greater limitation on free speech. In fact this is a restriction on free observation; a control on what we see and think. Of course I find child pornography nothing short of revolting. But I also find a lot of free expression revolting. I find rap and hip hop music tasteless if not outright immoral, but it is legal and I support freedom of expression and speech. We cannot legislate class and morals, so the choice is free speech without boundaries or restricted speech (there are obviously many utterances that cannot be tolerated ... the classic example I learned many years ago in my first year of law school when I took Constitutional and Criminal Law ... you cannot yell "fire" in a crowded theater. There are many instances where the public good must trump individual rights, but to extend that to downloading what one can observe is in my not-so-humble opinion going way too far.

What is "decent?" Is it in the eye of the beholder. In the Muslim word it is indecent for a woman to expose her head and face. 100 years ago it was indecent for a woman to expose her legs at a public beach.

I believe that there must be some restrictions when it comes to national security, fighting words defamation, compelling and government reasons. But I simply cannot accept a restriction on observations. Before one can be criminally, or even civilly liable for an illegal conspiracy, there must be an overt act ... so kind of participation, albeit a very low bar. But here we can be sent to prison for a very long time for simply observing pornography sent over the airwaves. Tain't fair or just.

Rich 10:07, 27 February 2013 (EST)

I would recommend reading a couple of books I am sure most already know about, Networks and States, The Global Politics of Internet Governance by Milton L. Muller (MIT, 2010 and Freedom And Cyberpunks: The Future Of The Internet by Julian Assange (OR Books, 2012).

I had heard of WikiLeaks but not Mr. Assange until he became an International criminal recently when he truly upset our government by leaking top secret information. At first I was outraged at his conduct and believed he was definitely a cyber terrorist, but upon reading his book which I am continuing to do my views are beginning to change. Back in college (my first go-round in California during the Vietnam war I found myself in a unique position as a person who had many ultra liberal views, but considered myself a super patriot as well. In a piece I wrote for my college student newspaper supporting the presidency, but not necessarily President Johnson on the way the war was being handled I was dismayed when several letters to the editor referred to me as a "Conservative." After all, I campaigned strongly for Johnson in 1964 (Yes, classmates I may be the oldest Ivy Leaguer, ha, ha) and against Goldwater. But that did not mean I supported his every policy. I did strongly support his domestic policies.

The Vietnam War and the Watergate scandal wised me up that our politicians might be as ruthless as many dictators but the difference could be that while they do not overly murder their opponents as a Saddam Yussein or Joseph Stalin did, but perhaps only because some who would if they could get away with it can't. It is naive to believe that our government leaders are immune from the evilness that abounds in closed societies. We are not a nation of natural born saints. I will not name names but some of our recently leaders have that capacity if they could get away with it.

The so-called "Decency Act" is an amendment to the Comstock Act. If any of you are unfamiliar with the anti-obscenity crusader Anthony Comstock after who the act is named, let me familiar you. He was a fanatic whose famous line when asked to define "obscenity" stated he could not define it, but "I know it when I see it." Not too supportive of the spirit of Due Process and the 14th Amendment is such rhetoric is it?

In my first year in law school I took a Legal Methods class and did a term paper on pornography and obscenity which is when I first learned of Mr. Comstock. I was Editor-in-Chief of The Appeal, our school newspaper and my front page article on bottomless dancers resulted in the owners of this definitely "for profit" grade Z law school shutting it down the newspaper for a year. So much for freedom of the press and freedom of speech.

Since then I realized that allowing or restricting freedom of speech is a two-edged sword. Where it stops is often, very often subjective and what is allowed in one era, in one culture, in one country is not allowed in another. Forty years later in many respects we have more censorship today than we did back then. So, I believe we must be very careful how tolerant we are of those who are intolerant.

I do not necessarily subscribe to the Cyberpunk "science" or philosophy chapter and verse, but I see the attempts to squelch free speech on the Internet as a major threat to our very foundation as a democracy.

As a trial lawyer I have prosecuted and defended libel and slander cases, so I have fought for both sides in many cases. I realize that defamation can be almost deadly, but again this is a matter of the specifics on a case-by-case basis. Any restriction of free speech must be very carefully weighed and I believe when in doubt allow it.

Rich 16:34, 27 February 2013 (EST)