Our society is one that prides itself (and rightly so) for its free speech. We do, however, apply certain restrictions on that free speech. Some are quite obvious. Everyone knows for example that they can’t indiscriminately yell fire in a crowded theater. Doing so is obviously dangerous to all those involved unless there actually is a flaming inferno for people to run away from.
On the internet, however, there are no crowded theaters. I can jump from crowded website to crowded website yelling the metaphorical fire without recklessly putting anyone in physical danger of death or injury by stampede. For example, say there was this new start up website FakeStartupSite.com. Say I had a grudge against the creator of this website, so I go on to reddit (or digg or wherever you prefer) and make a post saying that FakeStartupSite.com gives any visitor such a nasty computer virus that their whole machine crashes and leaves them stuck watching the nyan cat video on loop over and over again.
This is a post I know to be a complete lie but assuming others believe it, this would hurt or even ruin FakeStartupSite.com’s business. I have claimed something which I know to be factually incorrect with the intent of causing harm. The legal term for this is libel.
Now this situation isn’t new to the internet. Libel can take many forms. There are other forms of unprotected speech that seem to be even more pertinent to the internet than libel. Police watch for the spread of things like child pornography and classified information across the web. Hate speech and threats are also unprotected speech.
Back in the day when these kinds of statements could be easily distributed in newspapers, reparations were easy. A newspaper doesn’t publish its material without reviewing it first. The New York Times then is responsible for the contents of its paper.
But for a website like reddit to review all of its posts before the allow them to go online would stifle the whole appeal of the site. The internet allows for user interactivity in a way that just wasn’t possible before its invention. Its just silly to expect a website to be able to filter out all of the bad material. And to inhibit the ability of sites to allow user interaction would be squandering one of the greatest capabilities of the internet
Our justice system, however, decided in Stratton Oakmont, Inc. v. Prodigy Services Co. that if a site performed any sort of editing at all, then it could be held liable for any unprotected material that makes it through to the site because they in esscence became a publisher. Thinking that this would cause sites to implement even tougher censorship restrictions, this actually would encourage sites to remove all censorship in order to avoid being liable
As anyone who has ever been to completely unrestricted sites can attest, there can be a real benefit to having a censored site. Facebook would be a much different place if Facebook didn’t keep some of the more disturbing parts of the web from its pages.
Congress then passed the Communications Decency Act and in Section 230 they state that “No provider or user of an interactive computer service shall be held liable on account of any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene…” This put in place a new rule that allowed sites to create good faith censorship of obscene materials without them being liable for anything that falls through the cracks.
And its a good thing Section 230 is still around. The internet would be quite a different place.
*Picture used for educational purposes only, no copyright infringement intended.
Regardless of whether or not I actually believe the Dean of Yale College to be an idiot, I am allowed to say this. If Mary Miller or Yale University decided to take punitive action against me because of this image macro, I could sue them into oblivion.
Freedom of speech has been hammered into our heads since elementary school, so we instinctively know that statements like these are considered opinions, and we are entitled to them.
Of course, we also accept that there are some restrictions–we can’t just go around yelling “fire” in a theater, for example. We also can’t publish bad things about people that aren’t even true in an attempt to defame them. That’s libel.
All of this is pretty basic. Now let’s put this in the context of the internet: If I used this blog entry to libel Someone Important, could that person sue the owner of this blog, or even the ISP of the server on which it’s hosted, for libel? Common sense tells us of course not. So does Professor Balkin.
The difference between suing a newspaper for libel and not suing a blogging service is that the former necessarily reviews its content before publication. With most online services, the provider isn’t really involved with the content. That’s how net neutrality, which is most often thought of as a market issue, becomes an issue of freedom of expression: The internet becomes a medium through which to exercise your right to freedom of speech, so regulating it wouldn’t please the old hats that wrote the Constitution.
So if you value your right to call whoever you want whatever you want online, do your part to support net neutrality. Business arguments may hold some sway, as ISPs are private, but once we take that first step, it’s a slippery way down.
Our project was to plan and implement an advocacy and awareness campaign concerning the Stop Online Piracy Act. This piece of legislation, currently being debated in Congress, would place severe restrictions on Internet activities and free speech. The act also restricts Americans’ ability to obtain affordable prescription drugs from abroad. SOPA is the culmination of entertainment and pharmaceutical industry pressure on Washington to place stringent protections on intellectual property, and the resulting draconian measures threaten to undermine the fundamental principles of Internet freedom. The Internet has grown at such an astonishing rate because it has largely rejected harsh restrictions on user activity. SOPA violates the theoretical pillars necessary to the Internet’s functionality, and breaking the Internet in such a fashion would bear negative consequences for individuals and businesses that rely on the Internet’s facilitation of free information exchange.
In formulating our project, we decided that a campaign aimed at students and tailored to their concerns would maximize the effectiveness of our efforts. We thus chose to use Internet and social media based methods of communication, and we concentrated our substantive content on issues most relevant to college students. We did not limit our coverage to these issues though, as we aimed to provide a breadth of information about the bill’s negative consequences. By using social media platforms, traditional media outlets, and two different blogging platforms, we were able to spread our message to many Yale students and provide valuable information about SOPA’s Internet-breaking policies to the campus. We hope the lasting impact of this campaign will not only be to facilitate continuing interest in SOPA’s progress, but also to engender a general sense of vigilance in the form of participatory democracy concerning free speech and Internet regulation that resonates well into the future.
Part 1: Launching a Campaign
Our primary goal of this project was to spread awareness of SOPA and hopefully rally others around opposing it. In order to do this, we tried to appeal to many different groups by using a variety of platforms (Facebook, Twitter, WordPress). We also attempted to broaden our appeal by using satire and humor in addition to more pointed intellectual critique of the legislation. We tried to tap into the very things that SOPA would likely cut into: user-generated content, memes and places where you can share links. While we created a lot of our own content, we also tried to post relevant and interesting articles and sites that others had made. One particularly enjoyable and interesting story involved “The Megaupload Song” that received a takedown request, presumably automated, from some RIAA-related entity (Universal Music Group) because it featured many RIAA artists even though Megaupload (a major file-sharing site) owned all the rights to the video. If you’re curious, the (quite catchy) song can be found on Youtube, and there’s more information here. Also, if you’re into remixes, check out this link.
A major challenge for our group in promoting the anti-SOPA movement was fighting the general Yale apathy and our generation’s apathy that comes with having people constantly inviting you to do things (spamming you). This challenge was exacerbated by finals period, and consequently, we weren’t able to get an Op-ed published in the YDN (as they stop publishing early in December). However, we were able to raise a good amount of awareness as many Yalies hadn’t even heard of SOPA prior to our outreach. Through explaining SOPA’s specific relevance to college students as well as posting some of the amazing articles and content available around the web, we were able to educate (and hopefully inspire) a lot of people.
As of this writing, our Facebook page has 130 likes which is equivalent to about 3 percent of the Yale Undergraduate population. While this number is fewer than we would have liked, we speculate that many people for political reasons and/or page like accumulation effects were reluctant to like our page. However, our Facebook page insights seem to indicate that many people still benefited from and engaged with our content. As we see below, our weekly total reach (the number of unique viewers who saw our content from 12/8/11 to 12/14/11) was 3,303 and peaked at 5,191 for the weak ending 12/12/11. Thus, a large percentage of Yale undergraduates likely read something we posted and learned more about SOPA.
To complement our Facebook and WordPress, we created a Twitter account, @StopSopaYale, to complete our social media approach. The Twitter was useful in that it let us keep a small but interested group completely up to date on every #sopa happening. Additionally, the Twitter account was useful because it let us retweet other people’s views and comments on the SOPA debate. This allowed us to combine other people’s opinions with our own and give a lot of different viewpoints on the topic. The Twitter page was also an interesting foray into trending topics and extremely concise posts, a nice contrast to the more drawn out and in depth arguments of our WordPress blog. Currently, we have 20 Twitter followers and we are on the list of one anti-SOPA advocate.
In our opposition to SOPA we took both the pragmatic path into what specifically the SOPA legislation said and would do immediately (and why their is concern about intellectual property protection) as well as the somewhat hyperbolic path, wherein we demonstrated the absurdity of how broadly SOPA is written and speculated on the potential consequences that SOPA could have. In this way, we provided our audience both with a quick draw in (the two line memes and absurd scenarios depicted in videos) as well as further information if they were interested in understanding the issue on a deeper level.
Part 2: A Creative Approach
In raising awareness within the Yale community about the flaws of SOPA, we aimed to create original content which would specifically appeal to Yale students, both in addressing issues relevant to our audience and by presenting this material in an entertaining form. Thus, we created internet memes, videos, an op-ed for the Yale Daily News, and a blog. Additionally, we wrote an anti-SOPA form letter for Yale students to send to their members of Congress which was tailored to reflect a Yale student’s perspective. Finally, to make all of this content easier to access, we either linked the material to the Stop SOPA at Yale Facebook page or we created static HTML pages for the material with corresponding tabs to our Facebook page.
The use of internet memes provided an effective and engaging way to point out the ridiculous elements of SOPA. In generating our anti-SOPA memes, we drew from internet memes which were already popular and recognizable, such as the Lazy College Senior or Futurama Fry. Thus, Yale students would be able to easily recognize the humor which we aimed to convey. Plus, internet memes can be easily shared and transformed. Consequently, we hoped that our fans would not only share our anti-SOPA memes, but would also craft similar memes themselves. Some topics which our memes addressed were the possible end to interactive websites such as Facebook and Wikipedia, the end to fair use online, and the halting of future innovative online start-ups.
Similar to the internet memes, the videos which we created aimed to point out insensible aspects of SOPA in a humorous way. However, through videos we could portray these aspects in a more in-depth form to help our audience gain a better understanding of the problems created by SOPA. For instance, the video entitled SOPA Courtroom Battle illustrates the extreme changes SOPA will make in criminalizing copyright infringement.
By creating an anti-SOPA form letter, we hoped to encourage students to be active participants in the Stop SOPA at Yale campaign, rather than just passive followers. While creating awareness on campus about SOPA is important, it was equally important to us to inspire a response to the bill. As mentioned above, we tailored the form letter to address the concerns of Yale students. This form letter, with instructions on how to send it, was posted both on our Facebook page and our blog so that it could be easily accessed.
As another form of outreach on campus, our group wrote an op-ed piece to be published in the Yale Daily News. Unfortunately, it was too late in the semester for the op-ed to be published immediately, but it can currently be found on our blog and an updated version will be posted in the YDN early next semester. Like our other creative content, the op-ed piece exemplifies many of the problems with SOPA and the article’s sarcastic, comical tone aims to keep our readers engaged and entertained. Also, the op-ed piece directs our readers to visit our Facebook page, AmericanCensorship.org, and Wired for Change.
The Stop SOPA at Yale blog provides a forum for our group to express our opinions about SOPA extensively and provides a space for our followers to contribute their own viewpoints. Similar to the op-ed, the blogs are written with the goal of being both informative and compelling. Our blog posts touch on a variety of topics, ranging from the different camps of anti-SOPA supporters to the effect SOPA can have on healthcare. In addition, three of our members held a live blog session to cover Congress’ markup debate of SOPA. Through the blog, our group elevates our position in the anti-SOPA movement: not only do we provide a channel of information to Yale students, but we are also contributing to the online voices against SOPA.
Part 3: Becoming a Part of the Action
One of the more interactive aspects that we integrated into Stop SOPA at Yale was our creation and operation of a live blog. After learning that there would be Congressional debate held to discuss the SOPA legislation on Thursday, December 15 (which just so happened to fall in the middle of our SOPA campaign), we realized it presented a great opportunity to add very direct and significant value to our campaign efforts. We would have been foolish not to somehow take advantage of the fortuitous timing of the most defining event to take place regarding SOPA to date. Sooo, we decided to conduct a continuous live blog during the House of Representatives’ Full Committee Markup. For the sake of clarification or if you are not really sure what a markup is, it is “The process by which congressional committees and subcommittees debate, amend, and rewrite proposed legislation.”
Up to that point, the majority of our campaign’s content was based upon content published online, in the news, by political commentators, activists, etc. We had yet to really dig deep into the real diplomatic activity and reality of what was actually happening with SOPA on Capitol Hill, or among the politicians who will ultimately dictate the bill’s fate. We knew that by monitoring and providing commentary on the live debate IN CONGRESS, it would add a heightened level of authentic value to our campaign.
The very nature and benefits of maintaining a live blog carried unique advantages that fundamentally differed from the other aspects of our campaign (Facebook page, normal blog, memes, creative scenes, op-ed, etc)….
Live blogging gave us a channel to portray not only our opinions about SOPA and why people should take a stand against it, but also the ability to present a discussion based on the statements made by representatives in Congress to support our previously published content. Furthermore, as proactive “Anti-SOPAs,” conducting this event forced us to seriously pay attention to what is ACTUALLY going on with SOPA in the political sphere. When participating in a public protest, it is very easy to get caught up in the overwhelming flood of public opinion online and in the media. Blogging live on the congressional hearing during which political figures delivered their positions helped us stay grounded.
The main goal of our campaign was to engage Yale students in a compelling way. We believed that a live blog would be (relatively) more captivating (to the extent that a live blog really can be) than other forms of content. Our idea was that a live blog on the Congressional markup would attract more attention to the issues we were trying to convey to the student body. We also realized this would make the substance of the debate more accessible. Essentially, we sought to accomplish two campaign goals: 1) more exposure for our campaign, 2) heightened attention and knowledge to students about the bill itself.
We believe we were able to bring the experience of the House debate in an appealing way to those who may not have followed it live, but wanted to have a taste of what went on. The live blog was an aspect of our campaign that probably linked closest with the “real-life” implications surrounding SOPA. The most fitting conclusion I could provide about this endeavor would be – POLITICAL PARTICIPATION AT ITS FINEST!
Part 4: A Rewarding Experience
Ultimately, we deemed our advocacy campaign a success. As is discussed above, our data shows that our Facebook page reached a large number of individuals, both those inside and out of the Yale community. We believe that we helped further the anti-SOPA cause and exposed the weak points of the legislation. It was especially exciting to be involved with the anti-SOPA activity at this particular stage, when the bill is one of its most hotly debated points. This allowed us to piggyback off of other anti-SOPA campaigns’ publicity and allowed us to run a live-blog of the bill’s mark-up in Congress.
It was an extremely rewarding experience for us all, both in terms of educating others about the dangers of SOPA and learning ourselves about the controversial bill, as well as about other related debates regarding the freedom of the Internet. The project also allowed us to gather (or hone) many different skills using technology that we might have never been exposed to, including creating and running a blog (and live blog), creating memes and other internet videos, writing simple HTML, and using and linking Twitter, Facebook, and blog pages. The project was therefore a perfect culmination of our semester in Introduction to Law and Technology, reinforcing and combining new technological skills with knowledge about current Internet debates that in the future will allow us to be better informed and more active citizens of the Internet world.
As part of our group project on creating awareness to stop the upcoming SOPA bill from passing, we just wanted to let you know that Charlie, Zach and Nick will be live-blogging the bill’s markup in Congress tomorrow. The session starts at 10:00 am, but we’ll get started at around 9:30, so check in early for insightful coverage and our witty banter.
OK. Time to open Pandora’s box. Today’s topic? CENSORSHIP.
The idea of censorship is inextricably linked to the concept of information dissemination through the media, be it through more traditional means such as newspapers and television, or, more recently, new technologies such as the Internet. In any case, the act of censorship is also, by definition, associated with some entity that does the censoring.
The first example of a censoring entity that comes to mind (for me at least) is Joseph Goebbels’s Ministry of Public Enlightenment and Propaganda in Nazi Germany, before and during the Second World War. This particular governmental entity (an entity with actual, legal executive power over a large population) is often cited as the ultimate example of a disseminator of propaganda and censorship. Where did this power come from?
Ever since the advent of the first electronic media formats, namely film and radio, it has been relatively easy for governments to control the dissemination of information (barring a legal framework to prohibit such behavior, but we will discuss this later). In other words, virtually unquestionable executive authority and capability to fund high-cost, effective propaganda has often allowed governments to be the censoring entity, as in the case of Goebbels’s Ministry. In the past, the same did not hold true of non-governmental entities. Often lacking in funding or power to affect the masses, businesses, organizations etc. were rarely seen controlling information flow.
Today, more than six decades after Goebbels, things have changed. In this digital age, censorship has taken on new dimensions and applications. With the advent of the Internet, government control over the “masses” has lessened, while big corporations, especially in the technology sector (can anyone guess who I have in mind?) can take part in censoring, or prohibiting censoring for that matter.
But before we move on to specific examples of censorship and its implications today, let’s take a look at the legal ideas and framework behind it.
B. Legal Framework
OK. So let’s start with some connotations; Censorship. Media. Information Dissemination. Information suppression. Propaganda. Government conspiracy. Dictatorship. Totalitarianism. I don’t know about you, but none of the above sound really positive to me.
Well, even if you don’t agree, it seems that enough people do since popular opinion holds that censorship is usually bad, excluding certain exceptions. (The links chosen are just indicative; there are many more interesting discussions if one just googles “censorship is bad”). Indeed, most democratic countries have a legal framework (be it in the form of statutes or precedent court cases) that addresses the issue of censorship. In my analysis, I will use only U.S. law, citing specific examples, but the underlying moral and legal principles are more or less the same for all countries.
In the United States, censorship is considered unconstitutional under the 1st Amendment. The First Amendment states that:
“Congress shall make no law […] abridging the freedom of speech, or of the press […].”
Thus, any attempt by any entity to censor information in the media can be found to infringe on the First Amendment rights of the publisher, as “freedom of press” is compromised.
The unconstitutionality of censorship was upheld by the U.S. Supreme Court in a landmark decision in 1971, when it ruled in the favor of the plaintiff of a case that would be come to be know as the “Pentagon Papers” case.
2) New York Time Co. v. United States
In the Pentagon Papers case. the executive branch (surprise-surprise) of the US had sought an injunction against the New York Times, to prevent it from publishing a report on the Vietnam War. The report, entitled “United States – Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense”, had been leaked by Pentagon analyst Daniel Ellsberg and would humiliate the Johnson administration and the government as a whole if it were published. The Times defended the publication under the First Amendment, leading to a trial that was eventually appealed all the way up to the Supreme Court.
Legally, the Times were in the right; the editors had obtained the material legally, and its publication was supposed to be protected under the First Amendment (freedom of press). Furthermore, the publication of the report would not affect the government’s ability to protect its citizens in any way, so there was no serious argument against publication pertaining to national security.
In a decision which would determine the future of censorship legislation, the Supreme Court ruled that the government had no right to place restraints on the publication of content it sought to suppress, citing Near v. Minnesota: “the chief purpose of [the First Amendment’s] guaranty [is] to prevent previous restraints upon publication.”
3) Exceptions to the Rule
What is a rule without exceptions?
J. Brennan, Associate Justice of the Supreme Court at the time, brings up some very interesting points in his concurrence, concerning specific exceptions where censorship can be tolerated or considered legal.
i) The first and most important exception, Brennan posits, can be inferred by certain past Supreme Court cases, and concerns “a very narrow class of cases”; those affecting national security. Specifically, Brennan mentions that in the instance that “the Nation is at War” or some equivalent situation, “the First Amendment’s ban on prior judicial restraint may be overridden”. But, before it can be overridden, there must be significant “governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea”. In other words, the government must prove an immediate, direct and highly consequential effect on national security. Needless to say, this burden of proof is quite large and not easily met.
ii) The second possible exception (if it can be called that) is the case of obscene material. Once again, this exception arises from another Supreme Court case: New York v. Ferber. The background of the case is not pertinent to our discussion, but the finding is; the Supreme Court held that any material deemed obscene (legally measured by an obscenity standard developed in Miller v. California) can not be protected under the First Amendment. Therefore, any action taken by an entity to censor obscene material is absolutely legal. The reason I mention this rare, peripheral exception now, is that I would like to discuss a modern-day scenario where it applies a bit further down
C. Censorship in the Internet Age
With this legal framework in mind, I would like to discuss four scenarios that have unfolded in the recent past, each of which can help us define the changes in the dynamics of censorship today.
1) Wikileaks: The Richard Stallman of Free Media.
(Please excuse the analogy, but when I thought about the parallels, I couldn’t help but include it).
I start with Wikileaks because it is one of the more clear-cut, legally speaking, situations. In terms of background, the situation differs only slightly from the “Pentagon Papers” case. Indeed, in the “about” page of their website, the editors of Wikileaks directly quote Justice Black’s (also an Associate Justice for the Supreme Court at the time) concurrence: “’only a free and unrestrained press can effectively expose deception in government.’ We agree.”
So what are the parallels with the Pentagon Papers? Well, just like the New York Times, Wikileaks receives its original material legally, by trading for it with secret sources (the methods by which the sources themselves gather the material is legally-speaking completely irrelevant). Furthermore, under the US Constitution, the publication of the material is legally protected by the Freedom of Press clause of the First Amendment.
This being said, there are the aforementioned exceptions to think about. Little if any of Wikileaks’ material can be categorized as legally obscene, so the 2nd exception is out of play. But some of the material released on the site could conceivably have an impact on National security. Indeed, this is the opinion held by many members of the government. But, as Justice Brennan stated in his concurrence, the burden of proof for such a claim would be immense. It would be extremely difficult to prove a direct effect on national security. In the words Robert Gates, former CIA chief: “Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.”
In conclusion, barring extreme cases, all Wikileaks material is legally protected under the First Amendment and censoring it is unconstitutional. This is why most, if not all, attempts to persecute the organizations legally have failed (as the editors blatantly boast on their site). In the absence of a plausible case against Wikileaks, prosecutors have alternatively pursued actual leakers (e.g. Bradley Manning), whose acquisition of the material is arguably illegal.
Now for the fun part: the Richard Stallman parallels. While skimming the “about” section of the Wikileaks site, I detected an underlying tone of “rebellion”, for lack of a better description. There was a certain, vague smugness in it, which, to me, suggested a “stick it to the man” mentality. Don’t get me wrong; I don’t for a moment doubt their belief in absolute freedom of press. But at least part of their mission seemed to be fueled by hatred (justified or otherwise) for demonized governments and multinational corporations. Similarly, Stallman has openly rebelled against the big tech-software companies (e.g. Microsoft) by developing the DNU General Public License. And most people would agree that Stallman is at least partly driven by scorn for the big tech companies who “force people to pay for software.
Let’s take it to another level: Stallman’s purpose in creating the GPL was to help software programmers work together and build on each others’ work (promoting the common goal of improving software), without worrying about copyright infringement. Drawing the parallel, Wikileaks editors advocate the cooperation of all media outlets “to bring stories to a broad international readership” (promoting the common goal of complete freedom of press).
These are the most obvious similarities I can think of currently. But I won’t stop here: following is a funny strip from the infamous xkcd webcomic, an obvious exaggeration of Stallman’s ideology: (I cropped part of the comic, as it is irrelevant to the point I’m trying to make; click on the picture to see the original).
And now my own iteration of the picture, rethought for Wikileaks.
2) Baidu-Google in China
One of the most discussed issues in the history of Internet censorship has been the Chinese government’s Internet search engine policy. Baidu, the largest online search engine in China, allegedly censors a huge list of “undesirable” sites and searches at the behest of the socialist government (rationalized as “according to the policies and regulations of China”). This censorship includes any content that criticizes the ruling Communist Party, which has led to a global outcry from democracy advocates worldwide. In this case, the entity attempting censorship is once again the government. However, unlike in the past, the government has no direct control over the information dissemination. It must instead rely solely on its executive power, which should influence the true information disseminators (Baidu) to do its bidding. As a side note, a lawsuit was recently brought against Baidu in the US for unconstitutional conduct in “blocking prodemocracy speech from search results”. This lawsuit piqued my interest because it opens up all manners of questions about the extent to which a Chinese organization can be held accountable in the US. But that is a discussion for another day.
The case was very similar with Google, at least until last year. The search engine giant had also been the subject to Chinese regulation, which meant that it was obligated to filter results and censor certain topics (same as those censored by Baidu). In much the same way as with Baidu, the socialist government relied on its executive power to influence Google’s policy. But Google is different than Baidu in one key respect: it is not based in China. Thus, when it decided to move out of the country and into Hong Kong last year (a move that Baidu would be unable and perhaps unwilling to perform, considering its base of operations is in China), it was no longer obligated to censor search results, since the Communist Party’s executive and judicial reach did not extend over China’s borders. Thus the entity that has the power to disseminate and censor information in this case, chose to ignore the latter power.
3) The Arab Spring
The beginning of 2011 saw many rebellions start and take hold in various Middle Eastern countries including Egypt, Libya, Tunisia etc. These are the first rebellions to take place in the era of the Internet, and indeed the World Wide Web seems to have played a significant role in the uprisings. During the rebellion against Hosni Mubarak in Egypt, one activist in Cairo tweeted that “We use Facebook to schedule protests, Twitter to coordinate, and Youtube to tell the world.” Another, humorously tweeted:
As is the case with all rebellions, the local governments wanted to quash the uprisings. Recognizing the significance of the Internet, as well as their own inability to effectively monitor and censor it, some states tried different methods of controlling it. In Egypt and Libya, the government went as far as completely denying access to the Internet as a whole, while in Syria, a government-backed organization severely hacked and defaced several social media sites the rebels were using. These are all, of course, acts of censorship and suppression of the citizens’ freedom of speech, as well as publishers’ freedom of press. Which I guess partly justifies the rebellions in the first place.
4) Google and Child Pornography
I will end on a more optimistic note, with another instance of positive change in the dynamic of censorship (it also relates to the obscenity exception I promised to talk about). In a wholly agreeable step, Google has recently attempted to tackle the problem of child pornography on the Net. It has reconfigured one of its filtering algorithms to recognize and filter certain patterns that are indicative of pedophilic of other such obscene conduct. By practically any and all social norms, child pornography passes any obscenity test, which means that, under the New York v. Ferber precedent, it is not protected under the First Amendment. So, in a sense, filtering such results is not censorship per se, since it doesn’t violate any constitutional rights. Therefore Google can legally exclude all such results from its searches without being sued for suppression of the freedom of press. Once again the entity that has the power to disseminate and censor information has chosen to ignore the latter option. However, this time it is not influenced by another entity (e.g. a government), as it was in the Baidu case, but rather by the social norms (or standard) of the community which would condemn it if it didn’t act so.
The advent of the Internet has radically changed the nature and synamic of censorship in the media. While in the past the censoring entity was usually a government, resulting in propaganda, the Net has ushered in a new era. A government’s ability to censor has been radically decreased, now that it cannot directly control the information flow to its citizens (even if it did control the Internet, which it doesn’t, the sheer volume of information on the Web should make monitoring and control it extremely hard).
So who is the new censoring entity? You got it. Big technological corporations that can control information flow over the Internet: Google, Facebook, Baidu. It is easy to demonize these entities, just as it was easy to demonize the propaganda and censorship conducted by governments in the past. Indeed, who’s to say that there aren’t incentives for these entities to censor (e.g. profit), just as there was for governments (e.g. public opinion). We saw that Baidu is basically a marionette for the Chinese government when it comes to Internet censorship. But this is not always the case; we also saw that Google has both declined to censor material the Chinese government asks it to and tackled the problem of child pornography. Definitely better than if the Communist Party was in charge… Don’t you agree?
In the United States, freedom of speech is the very first protected right listed in the Bill of Rights. As the First Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Supreme Court has had many interpretations of this amendment over what “freedom of speech” in the First Amendment actually implies. Although one might think of freedom of speech as closely associated with our identity and heritage as Americans and thus a ubiquitously accepted right, there have been several controversial rulings on this issue, especially in cases where one individuals’ freedom of speech might be perceived to infringe on others’ preserved rights (ie: if my freedom of speech to shout fire in a movie theater infringes on your freedom to not be trampled).
Indeed, practically speaking, it is apparent that simply not all types of speech can be tolerated for a society to function. Some forms of speech are accordingly plainly and thoroughly outlawed by US law, such as fraudulent advertising, child pornography, fighting words, words used in a criminal transaction, unlicensed broadcasts, copyright infringement (hello DMCA), libel, slander, and threats, among others. Most of these forms of speech are restricted because they have a compelling government interest: the US government may regulate, or censor speech if it has a compelling interest, is a public concern, or threatens national safety.
For example, it is even considered legal to express certain forms of hate speech as long as one does not actually do the activities or encourage others to do them. However, once these groups overstep their boundaries and their actions can be interpreted as violating a compelling government interest, they can (and have) been regulated. For example, the Ku Klux Klan has been denied certain marching permits (a real tragedy) and the Westboro Baptist Church (which became famous recently for protesting military funerals) was sued for its activities (however the ruling was later controversially overturned on appeal in the US Supreme Court). These examples illustrate that while legal history has defined certain finite limitations on the freedom of speech, courts have ultimately historically held that in order for freedom of speech to exist, it must necessarily be protected to allow the unpopular, offensive, and distasteful.
Background on Wikileaks
The “Wikileaks controversy” is a great example of the tension between this freedom of expression and censorship. Wikileaks (NOT TO BE CONFUSED WITH WIKIPEDIA) is the name of an international non-profit organization run by founder, editor-in-chief, and director Julian Assange, that publishes submissions of private, secret, and classified media from anonymous news sources, news leaks, and whistleblowers. Since it went online, the site has published an extensive catalogue of secret material, ranging from materials on procedures at Guantánamo Bay, to the contents of Sarah Palin’s private email account. Look at Trigg!!!!
What Assange and his Wikileaks team are doing is technically not illegal under international law nor under various countries’ laws (more to come on this later); nonetheless, several nations (notably Assange’s home country of Australia, China, Germany, Iceland, Thailand, and the United States) have limited access, or in some cases blacklisted and completely blocked all traffic to the site. The United States has blocked access to the site in various government agencies in addition to issuing several other 1984-reminiscient demands. I’m insulted they didn’t threaten Yale. (Although this claim was later refuted by government officials…).
Larry Flynt Reincarnate- Another Champion for Freedom of Expression?
Assange himself believes that Wikileak’s role (and his on Earth apparently) is to expose injustice, not to provide an even-handed record of events. In an invitation to potential collaborators in 2006, he wrote, “Our primary targets are those highly oppressive regimes in China, Russia and Central Eurasia, but we also expect to be of assistance to those in the West who wish to reveal illegal or immoral behavior in their own governments and corporations.” He has argued that a “social movement” to expose secrets could “bring down many administrations that rely on concealing reality—including the US administration.”
Many agree that Assange’s work is beneficial and even noble, believing that by increasing transparency of government operations, Assange will ultimately force governments to act in more accountable manners. Calling Assange a “champion of freedom of speech,” proponents of his work believe that Assange provides information that the public has a right to know, and that both international and US efforts to suppress his efforts constitute a significant threat to freedom of expression world-wide. Proponents of his cause believe that the right to freedom of information outweighs the potentially dangerous effects of revealing US military strategy, pointing to the fact that none of the published cables were kept at the highest levels of secrecy, inferring from this that nothing truly sensitive has been revealed. Organizations such as Reporters Without Borders (RSF) has condemned the “blocking, cyber-attacks and political pressure” directed at the cables’ website from all over the world, and expressed concern at comments made by American authorities “concerning Wikileaks and its founder Julian Assange.” “This is the first time we have seen an attempt at the international community level to censor a website dedicated to the principle of transparency,” RSF said.
Indeed, Assange’s work has been received to some international acclaim, as the Wikileaks foundeer has received a number of awards and nominations, including the 2009 Amnesty International Media Award for publishing material about extrajudicial killings in Kenya and Readers’ Choice for TIME magazine’s 2010 Person of the Year.
Or a Criminal?
However, despite the seemingly good intentions of Assange’s work, his work has had serious repercussions. Some of the information that his organization has published includes confidential military documents that reveal great deals of US strategy and policy. As Wikileaks makes this information publically-accessible, Assange’s work has potentially compromised US national security, essentially placing in danger not only the lives of soldiers who rely on the secrecy of these documents, but also the lives of citizens at home who are now more vulnerable to attack.
Claiming that his information compromises national security, the US Justice Department has attempted to prosecute Assange under the Espionage Act, which makes it broadly illegal to compromise national security by interfering with the US military. In 2011, an unknown person in Cambridge, Massachusetts, had received a subpoena regarding the Espionage Act’s “conspiracy” clause 18 U.S.C. § 793(g), as well as the federal embezzlement law 18 U.S.C. § 641, a statute used in some other Espionage Act-related cases. A grand jury has begun meeting in Alexandria, Virginia, to hear evidence and decide whether an indictment should be brought.
However, critics of the legal approach of charging Assange under the Espionage Act argue that the broad language of the Act could make news organizations and anyone who reported, printed, or disseminated information from Wikileaks subject to prosecution as well. This slippery-slope argument might ultimately undermine this attempt to prosecute Assange, as further spinoffs from this type of reasoning might be interpreted as uancceptably limiting freedom of expression (if a magazine publishes an article from a magazine that publishes an article from a magazine that publishes an article from Wikileaks – WHERE DOES IT END!!?!?!).
Has the US acted correctly in its response to Assange and Wikileaks? Should our censorship laws be altered to prevent this type of unwanted freedom of expression? Does their inability to prosecute (as of yet) mean that Assange is without blame?
Yes, no, and probably not. The fact remains that our First Amendment technically protects his right to freedom of expression, and, just like protecting the right to protest military funerals, if we want to stay true to our traditions of maintaing a society of freedom of speech, Assange shoudl not be prosecuted for his Wikileaks-related work. Our censorship laws in this regard, should not be fundamentally changed in order to close a loophole that Assange is seemingly exploiting. Thus, the fact that the US (at best) is proceeding cautiously with charging Assange is the correct response if we wish to maintain true to our traditions.
This does not, however, mean that I believe Assange to be a noble champion of our First Amendment rights. I believe his actions to be wrong, plain and simple. The fact remains that in order for a government to function properly, not all information can or should be transparent. As a citizen, I willingly abdicate my right to know this information, trusting my government to make certain determinations for me. Voting with my feet, I can choose what country to live in, and what government to trust (granted, this is not possible for everyone, but the concept is clear). Thus, Assange’s actions don’t increase the global levels of democracy through transparency of government operations, in my opinion, but rather make the world a more dangerous place for me to live in, as a result of the increased knowledge of the US military’s vulnerabilities.
Ah, the First Amendment. Our high regard of the right to free speech borderlines worship- to suggest that one should ‘watch their words’ could bring forth either livid accusations(Stop Infringin’ mah rights!) or proud exclamations (“It’s a free country!”). We treasure our capacity to say what we want when we want to, no matter how thoughtless, careless, or offensive it may be. Now, before we get all high and mighty with our ‘Merican rights we may want to remember that there are a few slight, small, teeny-weeny exceptions to First Amendment. Here goes: The Court has decided that the First Amendment does not fully protect commercial speech, defamation, speech that may be harmful to children, speech publicly broadcast, and public employees’ speech. The Court provides NO protection to obscenity, child pornography, or speech that constitutes “advocacy of the use of force or of law violation.” Lastly, speech may be restricted to serve a “compelling interest” of the government.” Whew…got that? No, you didn’t. Why? Because this is Yale; we wouldn’t be learning about it if it were straightforward.
Ok, well most of those restrictions make sense if pursued for the right purposes. The problem comes when prohibited uses of free speech such as ‘defamation’, ‘speech harmful to children’, and ‘advocacy of law violation’ are introduced to a massive public forum, where recklessness enabled by anonymity runs wild. Changes in technology and society yield parallel changes or adjustments to our laws as well. And this is, of course, a good thing. Who knows what television, radio, or phone service would look like if we didn’t have the government involved?
But now that we have the Internet, it’s a completely different ballgame. The instantaneity and pervasiveness of the Internet explodes the potential for individual free expression. But, as it turns out, it also becomes infinitely easier to piss off lots of people too. Whether it be accusing your employer of being a Nazi Heiress, uploading smut, luring an unsuspecting victim to the sweet dulcet tones of Rick Astley, or just generally being offensive and/or a dick, the Internet allows you to do all of these things and from behind the safety of a computer screen. While this may raise some concerns regarding the limits of individual expression on the net, the eyes of the law view such expression as mostly acceptable or necessary evil. The Court has time and time again chosen to favor the larger picture, embracing wide expression and thought even if offensive. If the court were to attempt to curtail anything that might be deemed ‘offensive’, it would also undermine the extent and breadth of the First Amendment in the long run. As of now it is only possible to make generic and broad restrictions against content; content would be eliminated in clumps rather than carefully selected and valuable forms of expression would be lost in the process.
The CDA (Communications Decency Act), for example, attempted to regulate both indecency and obscenity on the Internet. (The difference? I’m still not sure.) However, the Supreme Court determined that the vagueness of the terminology of the bill, specifically the scope of indecency(nobody really knows what indecency actually is or means) ultimately would lead to excessive self-censorship and thus consequently would place a bottleneck on free and productive expression. (Reno vs. ACLU) I can admit that if it weren’t for the free form of the internet I probably wouldn’t post half the things I do on the Internet. The amount of things I search would be cut down to about 10%…my love for absurdity leads me to strange places.
I admit, there’s a lot of porn on the Internet. A completely unscientific study conducted by me and c-c-c-combobreaker.com, a random google image generator, indicates that upwards of 60% of all online images are pornographic. (The actual percentage of pornographic websites is contested; I’ve found numbers ranging from 1% to 12%, which is pretty small compared to the wild claims you here on T.V.) While the general ease of access to pornographic material to kids these days is troubling, it is not worth restructuring the essential form of the internet itself. Neither filters nor regulation to ‘protect our youth’ were ever viable, much less effective, solutions. If you find out your 7 year old has been watching porn, and you can’t either a) talk to your kids about it or b) prevent it from happening in the future, you have problems much bigger than the breasts your child might have seen. I feel that the issue at its core is very simple, yet the American cultural attitude toward sexuality is deeply flawed. Our tendency to repress prevent exposure to sexuality contains within itself the seeds of its own destruction. An Internet filter that prevents your kids from seeing naked people isn’t going to change that anytime soon.
“Code is Law”
Network Neutrality has been a rallying cause for Internet users for close to 10 years. Net neutrality is, simply stated, the prevention of the centralization of the Internet by ISPs and maintenance of free and open access to online content for everyone. I never saw the deep two-fold connection between net neutrality and free speech until I read Balkin’s article on Web access.
Balkin states that section 230 of the Telecommunication act is the cornerstone of our ability to freely communicate on the net. Section 230 states that providers of services (e.g. phone service or internet service) are not liable for the actions of their users, thus giving service providers little or no incentive to limit access to their subscribers. I think its pretty apparent that without this essential clause we would not have what we love and hate about the Internet today: Lol-cats, hate websites, Facebook, chat forums, or any user-generated content for that matter. The brilliance or crud you see on the net can all be attributed to the freedom of its users. Just imagine receiving letters from your ISP because of a comment you posted instead of that copy of “Along Came Polly” you downloaded. However, unlike that movie download, which you’ll probably do again but in a smarter way (you just can’t get enough of Ben Stiller’s bipolar hilarity), you’ll be much less likely to add to online discussion in a frank and honest way ever again. Its because of the structure of the Internet that users can, to an extent, pioneer their own environments.
Techno-Scholars, like Wendy Chun , have written extensively on the distinctions between cyberspace and the Internet. In this school of thought, cyberspace, the space we inhabit online, is really more an illusion of agency and freedom than control as such. Web’sites’, electronic ‘mail addresses’…all of this is essentially a cover for a physical infrastructure that is subject to the control of programmers, technological limitations, corporations, and the law that governs how these all will operate and co-exist. The freedom and innovation we enjoy today is precarious and unstable. Cyberspace is ephemeral, transient, dynamic and constantly changing. Should one ISP decide to set a precedent of throttling or setting up barriers to access and happen to make a ton of money doing it, they’ve set a new precedent for the rest of the industry and the innovation we see in startups and major companies alike would come to a screeching halt. Here, I’m preaching to the choir (virtually everyone enrolled in this class is well aware of how the Internet works and the issues surrounding its use,) but the same cannot be said for the most of America.
The issue of free speech that interweaves through every topic we’ve discussed thus far (copyright, fair-use, cyber-bullying, re-mix…I could just go through the syllabus) comes full circle. Free speech is simultaneously contingent upon itself, because it encourages innovation (companies are free to create services that prosper precisely because they can take advantage of the unfiltered-ness of the net) and new products that in turn enable creativity and open expression by the every-man; both of which are contingent upon the business models of those who create the Internet. Unfortunately, a business model is something that can change radically with time, and is often detrimental to consumers. Is a vocal minority of active web users enough to prevent the re-creation or restructuring of the Internet? I hope so. In any event, plenty has been said about network neutrality, so I won’t keep blabbering on about something most of you have probably already read tons of literature about. I am of course obliged to include a ‘call to action’!
I’d like to share some super cool content or application on the topic with you that’ll make you think I’m also a super cool, hip, and happenin’ fella , but I’m going to be honest; while I consider myself to be above average on the scale of computer know-how, truthfully I’m of the “Top 40” variety when it comes to computers. Whenever I talk to a friend about an awesome new application or web-service I’ve found, or I think that I’ve stumbled upon the next huge trend in computing before anyone else, my excitement is met with a condescending smirk. “Dude, that’s been around for years.” or “I can’t believe you haven’t seen that before.” are not all too uncommon for me to hear. Maybe my friends are uncommonly tech-savvy, or maybe I’m just the Dancing Baby of Memes. Anyway, to get to the point, I wouldn’t find any of the things I enjoy online or the utilities that allow my life to run smoothly (on an occasional basis) if the Internet’s architecture wasn’t crafted the way it is. Because of Facebook, Google +, Twitter, 4chan and virtually any method of open communication, we are able to share, discover, and dig deeper into our own unique or newfound interests. Not only that, but they are integrated real-time into our everyday lives! Truly awesome.
The Internet is not shrink wrapped, nor is it sterile. It is raw, refreshing, revealing, revolting, and revolutionary. Sure, I’ll occasionally get a pornographic banner ad on an otherwise innocuous website during the middle of class every now and again, but to me thats all part of the Internet’s charm. The Court has fought attempts to clean up the Internet in favor of free speech on the net, and I wish that was enough to keep free speech alive. But I’m a little bit afraid that commercialization is going to change things, and not for the better. A quick 3 stumbles on the application ‘StumbleUpon’ brought me returns of “Newark State of Mind” (Parody of Jay-Z’s New York Anthem), “This is Why You Don’t Brag About Sexual Encounters on Facebook”, and 6 Reasons We’re In Another ‘Book-Burning’ Period in History (From Cracked, a favorite of mine). Each page is but a spark of the collective flame of creativity of the Internet. But without open channels to fan the flame, this creativity is almost certain to die or be buried beneath massively promoted, publicized, and better funded material.
To the tune of Carrie Underwood’s “Before He Cheats”
Right now, he’s probl’y bloggin’ all my secrets to the world and they’re probl’y pretty nerdy
Right now, he’s probl’y telling some noob how to bring his offensive level up to thirty
Right now, he’s probl’y making an eHarmony account and hitting on a pedo,
And he don’t know…
Cause I plugg’d a flashdrive into the side of his pretty little souped up Mac hard drive
Carved my name into his glossy screen
I used up all of his World of Warcraft lives
Spammed his Facebook wall with lies
Maybe next time he’ll think before he Tweets
Right now, he’s probl’y retweetin’ with the hashtag #Ican’tbelievethatshepwnedme
Right now, he’s probl’y google searchin’ “Where can I find Mean Girls online for free”
Right now, he’s probl’y buying twenty dollars worth of those rare Pokemon…
And I mean, come on….
I plugg’d a flashdrive into the side of his pretty little souped up Mac hard drive
Carved my name into his glossy screen
I used up all of his World of Warcraft lives
Spammed his Facebook wall with lies
Maybe next time he’ll think before he Tweets
I might’ve saved a little trouble for his followers
Cause the next time that he Tweets
Oh you know it won’t be about me
Nooooo, not about me….
Cause I plugg’d a flashdrive into the side of his pretty little souped up Mac hard drive
Carved my name into his glossy screen
I used up all of his World of Warcraft lives
Spammed his Facebook wall with lies
Maybe next time he’ll think before he tweets
Maybe next time he’ll think before he tweets
I didn’t drink coffee until the end of high school. I had actually listened when my mom said, “Coffee will stunt your growth.” Even though I was staying up late and waking up early, I wanted to be tall. Put more articulately, I didn’t want to artificially constrain my growth.1 I feel similarly about language and culture, which develop through fluid, indirect, and subtle means. Likewise, efforts to control verbal expression only artificially hamper the development of culture. Any legislative attempt to create a list of inappropriate words is like coffee to language—it stunts growth.
In FCC v. Pacifica Foundation, the Supreme Court upheld the Federal Communications Commission’s ability to regulate the afternoon radio broadcast of George Carlin’s monologue “Filthy Words.” 2 Its indecent content was broadcast during a time of day when children might overhear. What exactly made this 1,751 word monologue so offensive? To illustrate, I’ve removed the filler – the acceptable words of polite language – this is left3, 4:
This monologue was created to be offensive in 1975. Yet in its offensiveness, it betrays its temporal nature. True, some words are still considered incredibly rude, but many no longer pack the same punch as they did in the 1970’s. Words fall along an acceptability spectrum. Over time, American culture relocates words within the spectrum. While words such as “colored” have become unacceptable with time, many swear words have transitioned towards acceptable. This transition along the acceptability spectrum occurs in one of two ways. First, a general exposure to a word can accustom a society; this method led to butt, ass, hell, and damn to be generally accepted. The second method is the reclamation of the offensive word by the offended group. The gay community has successfully reclaimed the word “queer” from its historical roots as a derogatory term for gay males. “Queer” is so widely accepted now that few people bat an eye at the show “Queer Eye for the Straight Guy.”
The fluidity of language will be fettered by legislative attempts to define what is acceptable and unacceptable for broadcasting. Supreme Court and lower court rulings in FCC v. Pacifica Foundation and FCC v. Fox Television Stations have created a foundation upon which government can control offensive language in broadcasting. The only stipulation is that these regulations must not be as vague as the regulation contested in FCC v. Fox Television Stations. This possibility for future legislation could quickly lead to television and radio broadcasting that are permanently stuck in the time period that the legislation’s last amendment; it would be as if current television could only air Leave It To Beaver and I Love Lucy–esque dialogues. Therefore, the Supreme Court missed a great opportunity in FCC v. Fox Television Stations—namely, the opportunity to create the foundation for cultural fluidity by overturning FCC v. Pacifica Foundation and declaring the regulations unconstitutional, instead of leaving the constitutionality to be determined by a lower court.
1) I’m aware now that coffee does not actually stunt growth. Looking back, I realize my mom probably just didn’t want to deal with a twelve year old hyped up on caffeine.
The PR machine at BP has picked up on a recent trend, which utilizes the Google AdWords service as a soapbox from which to launch a damage-control blitz.
Open another window and Google “BP.”
Odds are, you found this too. How about “oil spill”?
Same link? Me too.
Google AdWords is the moneymaking machine behind the world’s most popular search engine. This product selectively displays advertisements alongside search results, allowing advertisers to market to users already interested in specific terms. AdWords launched in 2000, and has since become more than just another billboard. By associating text advertisements with search terms, AdWords clients are able to deliver increasingly sophisticated messages to intended audiences—as BP is demonstrating right now. Never before has a campaign had this potential to target its message with such speed and precision–though that potential comes with a price tag, one that is subject to open bidding. In addition to advertising themselves in a more traditional sense, Google AdWords now empowers wealthy companies to command eyeballs searching for select keywords toward editorial content.
In September 2009, AdWords became a platform for PR damage control when the front page of the New York Times reported that New Zealand fisheries were overharvesting the hoki, a species known to most palates as the McDonald’s Filet-o-Fish. In response to this article, the New Zealand Seafood Industry Council bought up Google AdWords like new zealand hoki, hoki new york times, and William Broad (the author of the article). These search terms triggered links to a page refuting the Times’ accusations, and included emails from the Times science editor as well. Jim McCarthy of PR firm Counterpoint Strategies, who spearheaded this spin technique, has applied a similar strategy on behalf of the National Fisheries Institute and the Formaldehyde Council, in reaction to journalists’ criticism of these organizations. He seems to have started a trend by representing his clients with Google AdWords and links.