Regulating Speech Online

February 18

The Internet has the potential to revolutionize public discourse. 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 balance the rights of speakers with the interests in safeguarding minors from offensive content? When different countries take different approaches on speech, whose values should take precedence? When a user of a website says something defamatory, when should we punish the user and when should we punish the website?

In this class, we will look at how law and social norms are struggling to adapt to this new electronic terrain.

Joining us this week will be Jeff Hermes, Director of the Digital Media Law Project.

Assignments

The first half of assignment 2 (posting your prospectus) is due before class next week (Feb. 25th). Information on the assignment can be found here.

Readings

Private and public control of speech online

• Berkman Center, How Internet Censorship Works (about 7 mins., watch all)

• Ethan Zuckerman, Intermediary Censorship (from Access Controlled)

• Jeffrey Rosen, The Delete Squad (New Republic)

• Biz Stone and Alex Macgillivary, The Tweets Must Flow and The Tweets Still Must Flow

• Rachel Whetstone, Free Expression and Controversial Content on the Web

Speech laws and liabilities in the United States

• Wikipedia, Section 230 of the Communications Decency Act

• Letter to Members of Congress from 49 state and territorial Attorneys General

Cross-border concerns

• Susan Benesch, Dangerous Speech (audio interview, about 9 mins., listen to all)

• Jessica McKenzie, Obeying French Courts, Twitter Hands Over Identities of Users Who Employed Anti-Semitic Hashtag (TechPresident)

• Jillian York, Should Google Censor an Anti-Islam Video?

Optional Readings

• 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)

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

• Hal Roberts et al., The Evolving Landscape of Internet Control

• Jonathan Zittrain and John Palfrey, Reluctant Gatekeepers: Corporate Ethics on a Filtered Internet (from Access Denied)

• Anne-Marie Slaughter, Adapting U.S. Policy in a Changing International System

• Andy Sellars, The Structural Weakness of Internet Speech

Class Discussion

REMINDER

Your comments must be submitted before 4:00PM ET on the Tuesday we hold class in order to count for participation credit. Please see the participation policy for more information.

Please remember to sign your postings by adding four tildes (~~~~) to the end of your contribution. This will automatically add your username and the date/time of your post, like so: Andy 15:12, 7 November 2013 (EST)

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"The spread of information networks (the internet) is forming a new nervous system for our planet" - Hilary Clinton.

See: https://www.youtube.com/watch?v=ccGzOJHE1rw

For governments to react expeditiously to help individuals or communities in distress, there must be freedom of speech online. But for this to be effective, the process need to be organized and formalized. Individuals need to ensure they are not sending noises and gibberish but useful information so that either the government or other able individuals, NGO's, or even private corporations can come to the rescue.

Ichua 06:57, 12 February 2014 (EST)

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I have to say, I found "The Delete Squad" article by Jeffrey Rosen to be extremely interesting. While I find hate speech despicable, I agree with the conclusion at which "The Deciders" arrived, to intervene only in rare cases in which resulting violence appeared imminent. In this age of prolific internet bullying, I can see how many people (particularly parents) might be inclined to argue that regulations must be implemented, but to me the solution seems to lie more so in the individual's own usage of the internet. By this I mean to say that a person should be responsible for restricting his or her (or his or her child's) internet usage so that he or she is not actively involved in sites which might be problematic. Castille 02:26, 15 February 2014 (EST)

Rosen's article sheds a lot of light on what has become very important content control force in digitally-mediated discussions. For me, the most interesting and troubling aspect of this is the time they take to decide these things. Rosen claims the content review groups at Facebook have on average 20 seconds to evaluate a claim before acting upon it. It is nearly impossible to internalize in such a short period of time the complicated elements Susan Benesch flags to separate the dangerous from the tasteless but far less dangerous - the context, the speaker, the audience, etc. How can they be expected to do in 20 seconds what scholars and courts spend years (and many trees of paper) contemplating in other contexts? (Oh, and to your next post - book recommendations are always welcome!) Andy 21:40, 17 February 2014 (EST)

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This might be a little off-topic, so I apologize in advance if it's "inappropriate", but I was wondering if anyone has read The Circle by Dave Eggers? These readings-- and my exchange with Ichua on last week's discussion board-- have really made me consider the thoughts posed in that book. Basically, the book is about a company (a la Facebook) which seeks to "complete the circle" of internet usage and identity. It functions as a sort of government in and of itself, as well as a full-fledged community/world. Everything is consolidated on their system, so that people have basically no anonymity online as we do now; the internet is no longer removed from reality, but is instead a virtual reality in the most literal sense. All of their information is stored within the system, including their medical records, family history, purchase history, job details and tasks, and essentially all communication is conducted through the site. There is also a security camera system which is set up and controlled by the users, but has become so prolific that essentially every area of the globe is under surveillance. While the situation posed in the novel is drastic and even scary, there are a lot of positives to certain aspects. I think the biggest concern is not necessarily the loss of privacy, but the question of who controls (or should control) such a system. Certainly controls should exist, but surely corporations should not have that much power or intimate knowledge and it seems that even a government would not suffice for such a job. Should there be another authority? If so, what sort of entity would be qualified to do such a job? I'd love to hear other peoples' perspectives, whether you've read it or not.Castille 12:55, 17 February 2014 (EST)

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• NOTE 1 While reading this week's articles, I took a break from homework to scroll down my Facebook newsfeed. I came across a post by a friend in Quebec, about a website that satirizes Snapchat. When I clicked the link, it gave me an error message. I messaged my friend, she was able to open the link with no problem from Quebec. From the comments on her post, it seems as though the only questionable content were some dirty pictures on the site, but nothing I understand to be limited in the USA. That was a bit weird/scary...
• NOTE 2 Now that I am done reading this week's articles, I am more nervous to post my honest response to some of the articles than I used to be!
• QUESTION Does anyone know the Wiki Markdown version of target="_blank"? I'd be happy to add the markup to the class readings if anyone knows what the code is (I've tried Googling it... no luck...)

Erin Saucke-Lacelle 15:27, 17 February 2014 (EST)

It is generally considered bad practice in web development to use target="_blank" outside of very specific, exceptional cases. The reason is simple: If the link has no target attribute, the behaviour is defined by user's settings and by user's action as they can either click the link or right click and open in another tab/window/etc., some browsers offering other options such us click&drag, middle click, etc. If the link has a target="_blank" attribute, on the other hand, the user is forced to open the link in a separate tab/window - his actions are thus limited by the developer, for no good reason (even if the developer might think he has a good reason, it usually isn't). --Seifip 17:39, 17 February 2014 (EST)

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As I was considering the intersections of this week’s readings, several articles reminded me of a case that occurred back in 2000, although not within the realm of the Internet or something like the Flickr or Picasa most of us are very familiar with today, the parallels and concerns will seem obvious.

When we think about the amount of daily photographic content that now goes up on Facebook, Flickr, Picasa, etc. and consider the roles of these “Deciders” (as defined in one of the reading), the case as it occurred for an Oberlin, Ohio family back in 2000, seems like it could play out over and over again if individual states received the powers of prosecution to the extent that the State Attorneys General are requesting in their letter to congress on July 23, 2013.

Some may remember the case I’m referring to, in an overly distilled summary, it involved an amateur photographer who was chronicling her daughter’s life in still photography. Some photographs included her (then 8yr old) daughter bathing. When the photos were developed by the local film-processing lab, a clerk reported this to the police as an incident of “child pornography”. The local police agreed, and the mother was arrested and the case garnered national attention at the time with the ACLU coming to the defense of the mother. http://www.oberlin.edu/alummag/oamcurrent/oam_spring_00/atissue.html [Later the subject of an entire book looking more closely at the issues] http://www.pbs.org/newshour/art/questions-of-photographic-propriety-in-framing-innocence/

The letter by the 49 Attorneys General certainly strikes at a horror that anyone with a human heart will become equally enraged towards - the tragedy of child abuse, sex trafficking, and exploitation. While it seems odd that the word “The State” is omitted from the current language of the CDA, I wonder if by including “The State” in CDA language, we will end up introduce a sliding scale of laws that become defined by “the standards of any small community” enforcing crimes that THEY define a “Obscenity” and/or “child pornography”.

What is viewed as unprotected speech and deemed as “obscenity” (or “child pornography”) in Lorain County Ohio, may not result in the same definition in (say) San Francisco. With the addition of “The State” in the CDA, could the State of Ohio prosecute a photographer in San Francisco for posting an “obscene” picture to a Flickr account which is accessible to users in Ohio? If the definition of “obscenity” is based on the Miller’s test (below), then What are the “community standards” that define obscenity in a case where one state wishes to prosecute someone in another “community”??

The Miller test for obscenity includes the following criteria

(1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’

(2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and

(3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value.

Psl 17:47, 17 February 2014 (EST)

Thanks for contributing! Just to clarify, the constitutional definition of actionable obscenity under Miller has the geographic element to it, which tailors the more general criminal statute, but in the realm of child pornography neither the criminal statute nor the First Amendment doctrine base liability on community standards. So while obscenity can very state to state, child pornography does not. (And both are illegal at the federal level.) Andy 18:47, 17 February 2014 (EST)

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I have a greater appreciation for the issues involved in online free speech after this week's article. I somewhat disagree with Zuckerman's conclusion that private limitations to speech in private spaces is "Dangerous for a public society," in that I believe that private companies need to be able to define what is or isn't acceptable communication within their own environments--we're guests in these areas, and it's up to companies owning the spaces to decide what sort of environment their guests are going to experience. On the other hand, I don't think it can be the government that defines what's acceptable--it needs to be up to the individual owners of these spaces. I'm concerned about any encroachment on an individual or private enterprise's ability to decide what rules are appropriate for itself. While I find the content of, say, a site like Stormfront (a white separatist website) to be totally repugnant, I would defend their right to publish what they do--if anything, it simply exposes their nonsense to public scrutiny and criticism.

I am sympathetic to Benesch's thinking about "dangerous speech," and in particular it does make sense that the context (speaker, political environment, proximity to sensitive events, lack of competition/criticism) can make hate speech turn into something more insidious. Nevertheless, I'm unable to think of a good solution that doesn't actually make things worse. She claims to defend freedom of expression yet is able to make a distinction between expression and freedom of the press (dissemination). I find myself unable to disentangle the two. When one considers the international aspects, and the potential for international lawsuits (such as the French cases we've discussed) it seems like it would be unusually hard to apply her test to speech and protect the right of companies in places such as the United States to publish things that someone might claim to be "dangerous" elsewhere. For example, would the Chinese government find it to be "dangerous" if the customers of Twitter posted content about how there should be an end to single-party rule? Where do we draw the line? It's clear that not only are there the interests of certain governments at stake (and their authoritarian approaches to speech) but also the simple fact that some countries (such as the Rwanda example) may not have the institutions or cultural heritage to handle US-style free speech; yet it is it fair to force US companies to account for all of these cross-border and cross-cultural differences?

Jradoff 20:08, 17 February 2014 (EST)