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 - I see both sides

This week's readings were very interesting. The issues Google is having in Italy go back to some of the arguments made during our discussion related to Google in China. I argued that China, a sovereign nation, had the right to pass laws and take actions they felt were in the best interest of their country. Even if those actions are distasteful to us. Italy has that same right. It is interesting to see both countries want to limit, to different degrees and for different purposes, information available on the Internet. The US, on the other hand, explicitly insulates Internet service providers from liability for content they make available.

One of the readings used an analogy that I found interesting. It likened Google to delivering offensive content to a mail man delivering an offensive letter. You can't hold the mailman accountable. The difference here is, Google has the ability to see what the letter states and has the opportunity to decide whether or not to deliver it. Not only do they deliver it, they make it available worldwide. The mail man does not have that ability.

In the United States, filtering content goes against our very fiber. Our free and open society and freedom of speech are a corner stone of our national personality. Although I believe Google should exercise good judgment, the truth of the matter is that the law protects them from liability and until the law is changed, we must hope Google uses good judgment in the US. In other countries, where free speech is not an absolute right, Google must obey laws in those countries or stop doing business in them.

Hi Paul! I wanted to point out something regarding the argument that you cannot hold the mail man responsible for the content they deliver. In fact there are specific regulations that prevent the use of the mail in openly transmitting pornographic material. There are actually many other regulations regarding the proper use of the mail service. The postal service takes this obligation very seriously and has an entire department established that does nothing but investigate potential abuses of the regulations. USPS Inspection Service Website Just take a look at the investigations link and you can see all the things they as intermediaries will go after you for. --Lunatixcoder 20:33, 7 March 2010 (UTC)

Comment by Nick Siemaska - Regulating Speech Online

In democracies across the world, freedom of speech has proved to be an incredible right that has maintained societal stablity, innovation, and equality. This right, however, has been and continues to be a hotly debated issue with respects to its regultaion. In the United States, for example, there are many laws the prohibit speech if it is defamatory in nature. Regulatory laws like these protect the safety and integrity of individuals that would otherwise be harmed by libel or slander. But laws like these are continuously contested on whether they infringe on freedom of speech or don't go far enough to protect individuals from false, defamatory speech.

The internet is a new frontier testing these boundaries. The article in which Google executives were convicted in an Italian court for breaking Italian privacy laws seems to be less about individual rights and responsibilities, and more about those rights with regards to corporations. Do corporations have the responsibility to protect the rights of people that have access to their service? or do corporations have a right to maintain their ethical responsibilities to their business? I think the issue with Google and Italy's privacy laws forces us to ask who is responsible?

In the case of the personal defamation against two Yale law students, internet users worldwide are acutely aware of this sensitive and personal issue. Any individual can ask themselves what they would want if they were confronted with a similar issue as the Yale students. Wouldn't you, the individual, want some sort course of action to take information down about yourself that could be harmful to your future success, especially if that information was untrue? If we, the people, were granted this opportunity, could it have an overbearing effect on companies that were supplying this information with the potential glut of frivolous complaints?

--Nsiemaska 22:26, 9 March 2010 (UTC)

--Comment by Erin Golden - Link of interest (blog post by Eugene Volokh on Yale suit and resulting discussion): http://volokh.com/posts/1181709221.shtml --Erin Golden 22:56, 9 March 2010 (UTC)

Video Introduction by Rohit Chopra: It is my attempt to introduce the class using a video mail. Please click on the link to view [1]. Let me know if anyone has any problems. I hope you enjoy it. Thanks.