Free speech is thorny online

[ShadowFox]

Free speech is thorny online - CNN.com

NEW YORK (AP) -- Rant all you want in a public park. A police officer generally won't eject you for your remarks alone, however unpopular or provocative. Say it on the Internet, and you'll find that free speech and other constitutional rights are anything but guaranteed. Companies in charge of seemingly public spaces online wipe out content that's controversial but otherwise legal. Service providers write their own rules for users worldwide and set foreign policy when they cooperate with regimes like China. They serve as prosecutor, judge and jury in handling disputes behind closed doors. The governmental role that companies play online is taking on greater importance as their services -- from online hangouts to virtual repositories of photos and video -- become more central to public discourse around the world. It's a fallout of the Internet's market-driven growth, but possible remedies, including government regulation, can be worse than the symptoms. Dutch photographer Maarten Dors met the limits of free speech at Yahoo Inc.'s photo-sharing service, Flickr, when he posted an image of an early-adolescent boy with disheveled hair and a ragged T-shirt, staring blankly with a lit cigarette in his mouth. Without prior notice, Yahoo deleted the photo on grounds it violated an unwritten ban on depicting children smoking. Dors eventually convinced a Yahoo manager that -- far from promoting smoking -- the photo had value as a statement on poverty and street life in Romania. Yet another employee deleted it again a few months later. "I never thought of it as a photo of a smoking kid," Dors said. "It was just of a kid in Romania and how his life is. You can never make a serious documentary if you always have to think about what Flickr will delete." There may be legitimate reasons to take action, such as to stop spam, security threats, copyright infringement and child pornography, but many cases aren't clear-cut, and balancing competing needs can get thorny. "We often get caught in the middle between a rock and a hard place," said Christine Jones, general counsel with service provider GoDaddy.com Inc. "We're obviously sensitive to the freedoms we have, particularly in this country, to speak our mind, (yet) we want to be good corporate citizens and make the Internet a better and safer place." In Dors' case, the law is fully with Yahoo. Its terms of service, similar to those of other service providers, gives Yahoo "sole discretion to pre-screen, refuse or remove any content." Service providers aren't required to police content, but they aren't prohibited from doing so. While mindful of free speech and other rights, Yahoo and other companies say they must craft and enforce guidelines that go beyond legal requirements to protect their brands and foster safe, enjoyable communities -- ones where minors may be roaming. Guidelines help "engender a positive community experience," one to which users will want to return, said Anne Toth, Yahoo's vice president for policy. Dors ultimately got his photo restored a second time, and Yahoo has apologized, acknowledging its community managers went too far. Heather Champ, community director for Flickr, said the company crafts policies based on feedback from users and trains employees to weigh disputes fairly and consistently, though mistakes can happen. "We're humans," she said. "We're pretty transparent when we make mistakes. We have a record of being good about stepping up and fessing up." But that underscores another consequence of having online commons controlled by private corporations. Rules aren't always clear, enforcement is inconsistent, and users can find content removed or accounts terminated without a hearing. Appeals are solely at the service provider's discretion. Users get caught in the crossfire as hundreds of individual service representatives apply their own interpretations of corporate policies, sometimes imposing personal agendas or misreading guidelines. To wit: Verizon Wireless barred an abortion-rights group from obtaining a "short code" for conducting text-messaging campaigns, while LiveJournal suspended legitimate blogs on fiction and crime victims in a crackdown on pedophilia. Two lines criticizing President Bush disappeared from AT&T Inc.'s webcast of a Pearl Jam concert. All three decisions were reversed only after senior executives intervened amid complaints. Inconsistencies and mysteries behind decisions lead to perceptions that content is being stricken merely for being unpopular. "As we move more of our communications into social networks, how are we limiting ourselves if we can't see alternative points of view, if we can't see the things that offend us?" asked Fred Stutzman, a University of North Carolina researcher who tracks online communities. First Amendment protections generally do not extend to private property in the physical world, allowing a shopping mall to legally kick out a customer wearing a T-shirt with a picture of a smoking child. With online services becoming greater conduits than shopping malls for public communications, however, some advocacy groups believe the federal government needs to guarantee open access to speech. That, of course, could also invite meddling by the government, the way broadcasters now face indecency and other restrictions that are criticized as vague. Others believe companies shouldn't police content at all, and if they do, they should at least make clearer the rules and the mechanisms for appeal. "Vagueness does not inspire the confidence of people and leaves room for gaming the system by outside groups," said Lauren Weinstein, a veteran computer scientist and Internet activist. "When the rules are clear and the grievance procedures are clear, then people know what they are working with and they at least have a starting point in urging changes in those rules." But Marjorie Heins, director of the Free Expression Policy Project, questions whether the private sector is equipped to handle such matters at all. She said written rules mean little when service representatives applying them "tend to be tone-deaf. They don't see context." At least when a court order or other governmental action is involved, "there's more of a guarantee of due process protections," said Robin Gross, executive director of the civil-liberties group IP Justice. With a private company, users' rights are limited to the service provider's contractual terms of services. Jonathan Zittrain, a Harvard professor who recently published a book on threats to the Internet's openness, said parties unhappy with sensitive materials online are increasingly aware they can simply pressure service providers and other intermediaries. "Going after individuals can be difficult. They can be hard to find. They can be hard to sue," Zittrain said. "Intermediaries still have a calculus where if a particular Web site is causing a lot of trouble ... it may not be worth it to them." Unable to stop purveyors of child pornography directly, New York Attorney General Andrew Cuomo recently persuaded three major access providers to disable online newsgroups that distribute such images. But rather than cut off those specific newsgroups, all three decided to reduce administrative hassles by also disabling thousands of legitimate groups devoted to TV shows, the New York Mets and other topics. Gordon Lyon, who runs a site that archives e-mail postings on security, found his domain name suddenly deactivated because one entry contained MySpace passwords obtained by hackers. He said MySpace went directly to domain provider GoDaddy, which effectively shut down his entire site, rather than contact him to remove the one posting or replace passwords with asterisks. GoDaddy justified such drastic measures, saying that waiting to reach Lyon would have unnecessarily exposed MySpace passwords, including those to profiles of children. Meanwhile, in response to complaints it would not specify, Network Solutions LLC decided to suspend a Web hosting account that Dutch filmmaker Geert Wilders was using to promote a movie that criticizes the Quran -- before the movie was even posted and without the company finding any actual violation of its rules. Service providers say unhappy customers can always go elsewhere, but choice is often limited. Many leading services, particularly online hangouts like Facebook and News Corp.'s MySpace or media-sharing sites such as Flickr and Google Inc.'s YouTube, have acquired a cachet that cannot be replicated. To evict a user from an online community would be like banishing that person to the outskirts of town. Other sites "don't have the critical mass. No one would see it," said Scott Kerr, a member of the gay punk band Kids on TV, which found its profile mysteriously deleted from MySpace last year. "People know that MySpace is the biggest site that contains music." MySpace denies engaging in any censorship and says profiles removed are generally in response to complaints of spam and other abuses. GoDaddy also defends its commitment to speech, saying account suspensions are a last resort. Few service providers actively review content before it gets posted and usually take action only in response to complaints. In that sense, Flickr, YouTube and other sites consider their reviews "checks and balances" against any community mob directed at unpopular speech -- YouTube has pointedly refused to delete many video clips tied to Muslim extremists, for instance, because they didn't specifically contain violence or hate speech. Still, should these sites even make such rules? And how can they ensure the guidelines are consistently enforced?

Thoughts?

[ThoughtCriminal]

Yes, this is a serious problem. The reality is that corporate justice is arbitrary and trivially influenced by activists. It's always safer to censor than to stand up for free speech.

The standard libertarian answer here is that there's always some other site to post on, but this is nonsense. It is in the nature of community sites that there needs to be a critical mass. A big part of what makes YouTube better than the competition is simply its market share. For that matter, imagine how useless eBay would be if it didn't have so many people using it.

Of deeper concern are ISP's who shut down sites or disable domains based on anything short of a court order forcing them to do so. Such companies should be sued to oblivion, as they violate the requirements of a common carrier.

TC

[Sweet Katie]

I stopped reading a few sentences into the article with a "pass on the kool aid crap" roll of the eyes.

There is much freedom of expression available on the Internet. There are places that give away personal web pages, free of charge, to subscribers to post whatever thoughts come into their little ol' heads. Just as a newspaper has the right to decide what articles it will run or CNN has the right to decide what is newsworthy, owners of websites have that same option.

[ShadowFox]

Quote by: Sweet Katie I stopped reading a few sentences into the article with a "pass on the kool aid crap" roll of the eyes. There is much freedom of expression available on the Internet. There are places that give away personal web pages, free of charge, to subscribers to post whatever thoughts come into their little ol' heads. Just as a newspaper has the right to decide what articles it will run or CNN has the right to decide what is newsworthy, owners of websites have that same option.

Ah, but you shouldn't stop reading after the first few sentences. Otherwise you may miss something important.

[Dan_77]

Yes, free speech is very thorny online... especially when, at places like this, people who claim to be "originalists" or "strict constructionists" somehow invent the word "typing" in an Amendment that only says freedom of "speech"... For some reason it's OK to invent new meaning in the word speech, but try to extend the meaning of other words to their modern context and all of a sudden you're a "liberal activist.......blah blah blah"...


But that's neither here nor there. I would contend that private enterprises are allowed to regulate what happens with their property, including their websites. What is so difficult about that?

People need to understand that the right to freedom of speech is only guaranteed against the government. You have NO right to freedom of speech on Youtube, or any other private property.

[ShadowFox]

I'm getting the feeling, that due to the length of the article, not many people are reading the entire thing. Theres more than one issue at hand.

[Matt W]

Halo, have you cut & pasted the entire article?

[ThoughtCriminal]

Quote by: tivodan1116 Yes, free speech is very thorny online... especially when, at places like this, people who claim to be "originalists" or "strict constructionists" somehow invent the word "typing" in an Amendment that only says freedom of "speech"... For some reason it's OK to invent new meaning in the word speech, but try to extend the meaning of other words to their modern context and all of a sudden you're a "liberal activist.......blah blah blah"... But that's neither here nor there. I would contend that private enterprises are allowed to regulate what happens with their property, including their websites. What is so difficult about that? People need to understand that the right to freedom of speech is only guaranteed against the government. You have NO right to freedom of speech on Youtube, or any other private property.

Freedom of speech has always applied to printing presses. Let's not be so strict as to be silly.

For that matter, freedom of speech is not merely a constitutional right, it's something that we need to actually be able to exercise if we are to have an effective democracy. I made some arguments above against the libertarian notion that being censored on YouTube is irrevant, and you have not addressed these.

TC

[ShadowFox]

Quote by: Matt W Halo, have you cut & pasted the entire article?

No. I don't think it would even fit . It's really REALLY big.

[Kamehameha34]

Censorship is a government practice.

Private organizations can regulate what is being communicated via their permission.

Just as Jason can delete our accounts and all of our posts for violating a code of conduct that he can amend, private owners are the final word on what is not allowed on their property.

[Dan_77]

Quote by: ThoughtCriminal Freedom of speech has always applied to printing presses. Let's not be so strict as to be silly.

Then why does the Constitution also say "press" separately?

I don't believe that freedom of speech is limited to actual "speech", I was just pointing out a disjoinder in the arguments of many so-called originalists here.

For that matter, freedom of speech is not merely a constitutional right, it's something that we need to actually be able to exercise if we are to have an effective democracy. I made some arguments above against the libertarian notion that being censored on YouTube is irrevant, and you have not addressed these.

OK...

It is in the nature of community sites that there needs to be a critical mass. A big part of what makes YouTube better than the competition is simply its market share. For that matter, imagine how useless eBay would be if it didn't have so many people using it.

A big part of what makes shopping malls better than a single store in a parking lot is their market share of available products in one place, but they can still ban people from saying or doing objectionable things on their property and they are still private entities.

And your argument contradicts your fears. Youtube and Ebay have an interest in bringing the most people possible to their sites, which runs specifically contrary to a policy of banning everyone who commits some minor taboo. Just the same, shopping malls don't generally eject people merely for being slightly offensive - bad body odor or unkempt appearance, for example.

Of deeper concern are ISP's who shut down sites or disable domains based on anything short of a court order forcing them to do so. Such companies should be sued to oblivion, as they violate the requirements of a common carrier.

To what requirements of a common carrier do you refer?

[ThoughtCriminal]

Quote by: Kamehameha34 Censorship is a government practice. Private organizations can regulate what is being communicated via their permission. Just as Jason can delete our accounts and all of our posts for violating a code of conduct that he can amend, private owners are the final word on what is not allowed on their property.

It's still censorship, just not government censorship.

TC

[ThoughtCriminal]

Quote by: tivodan1116 Then why does the Constitution also say "press" separately? I don't believe that freedom of speech is limited to actual "speech", I was just pointing out a disjoinder in the arguments of many so-called originalists here.

You seem to be arguing against a position nieither of us supports.

Quote by: tivodan1116 OK...

It's not merely ok, t's the key point. We have this guarantee because it's a necessity. When unregulated market forces render the guarantee moot, we have a problem.

Quote by: tivodan1116 A big part of what makes shopping malls better than a single store in a parking lot is their market share of available products in one place, but they can still ban people from saying or doing objectionable things on their property and they are still private entities.

This is a repetition of a standard libertarian fallacy. Let's say I walk into a store and they eject me because I'm black. You would say that's fine, because it's private property and their property rights trump my human rights.

You might then add that all I need to do is go to another store, as if there were an infinity of them. In reality, I could go store to store and get ejected by bigots at each one of them, until I'm forced to shop in another town.

The "just go somewhere else" answer only works in principle. In practice, options are always limited and there are significant costs to exercising some of them. That why we have laws that forbid such societally destructive practices as commerical racism.

Quote by: tivodan1116 And your argument contradicts your fears. Youtube and Ebay have an interest in bringing the most people possible to their sites, which runs specifically contrary to a policy of banning everyone who commits some minor taboo. Just the same, shopping malls don't generally eject people merely for being slightly offensive - bad body odor or unkempt appearance, for example.

You might as well argue that the racist stores that ejected me had an interest in letting me spend my money, yet they still ejected me. I guess not all entities are perfectly rational, and in the absence of an unlimited number of alternatives, we are going to get a market failure.

Quote by: tivodan1116 To what requirements of a common carrier do you refer?

Communications services, such as delivery or telephones, operate as common carriers, compelling them to serve the public while shielding them from certain consequences of doing so. ISP's need to be given full common carrier status, instead of this Patriot Act patchwork that we have today.

TC

[Kamehameha34]

Quote by: ThoughtCriminal It's still censorship, just not government censorship. TC

Not in a constitutional sense.

The government is the only body that can't censor you. Period.

[Kamehameha34]

You might then add that all I need to do is go to another store, as if there were an infinity of them. In reality, I could go store to store and get ejected by bigots at each one of them, until I'm forced to shop in another town.

You're missing several key points.

First of all, the store would lose not only the business of the black people it disallows from shopping there, but those that choose not to support a store that practices discrimination.

Secondly, if every store ejects every black person, that creates a great demand for a store that doesn't discriminate - and as any high-school educated person should know - demand creates supply.

[Dan_77]

Quote by: ThoughtCriminal This is a repetition of a standard libertarian fallacy. Let's say I walk into a store and they eject me because I'm black. You would say that's fine, because it's private property and their property rights trump my human rights. You might then add that all I need to do is go to another store, as if there were an infinity of them. In reality, I could go store to store and get ejected by bigots at each one of them, until I'm forced to shop in another town. The "just go somewhere else" answer only works in principle. In practice, options are always limited and there are significant costs to exercising some of them. That why we have laws that forbid such societally destructive practices as commerical racism.

Except that you still have money to spend on a product you need, and presumably so do other members of the class being rejected by the store, which creates a demand for a store that would not reject them.

Furthermore, as Kame pointed out, such a store would also draw disfavor from everyone who does not agree with such a practice.

Finally, merchants still can and do reject people on whatever basis they wish. The difference is in so-called "public accommodations", which not all businesses fall under.

You might as well argue that the racist stores that ejected me had an interest in letting me spend my money, yet they still ejected me. I guess not all entities are perfectly rational, and in the absence of an unlimited number of alternatives, we are going to get a market failure.

Irrational entities generally fail in a market system since they do not respond properly to immutable laws of economics.

Communications services, such as delivery or telephones, operate as common carriers, compelling them to serve the public while shielding them from certain consequences of doing so. ISP's need to be given full common carrier status, instead of this Patriot Act patchwork that we have today.

Well, the rationale behind those requirements is one of monopoly or near-monopoly.

You mentioned the market working when there are "limitless" options... In a person's choice of where to post data on the internet, there ARE virtually limitless options, limitless for all practical purposes. The location of data becomes unimportant when the capability of search engines is taken into account. Search engines will locate the NAMBLA website, on their presumably censorship-free ISP, as easily as they locate the Christian Coalition.

The technology of the internet makes regulation nearly pointless and usually ineffective.

[ThoughtCriminal]

Quote by: Kamehameha34 You're missing several key points. First of all, the store would lose not only the business of the black people it disallows from shopping there, but those that choose not to support a store that practices discrimination. Secondly, if every store ejects every black person, that creates a great demand for a store that doesn't discriminate - and as any high-school educated person should know - demand creates supply.

And if your high school education included even an introductory class on economics, you would learn a bit about barriers to entry. As for the threat of non-bigoted whites boycotting you, this is a distinct non-issue in certain times and places.

TC

[ThoughtCriminal]

Quote by: tivodan1116 Except that you still have money to spend on a product you need, and presumably so do other members of the class being rejected by the store, which creates a demand for a store that would not reject them. Furthermore, as Kame pointed out, such a store would also draw disfavor from everyone who does not agree with such a practice. Finally, merchants still can and do reject people on whatever basis they wish. The difference is in so-called "public accommodations", which not all businesses fall under.

I believe I addressed this in the message above, so you can respond to that if you like.

Quote by: tivodan1116 Irrational entities generally fail in a market system since they do not respond properly to immutable laws of economics.

Yeah, the theory is that, over the very long term, the invisible hand of long-term self-interest will punish these irrational entities. Nonetheless, market failures do exist and can be quite long-lasting. This is particularly true in markets where share guarantees more share, such as the eBay model. Of course, even if this particular irrational entity eventually succumbs, the long term is too long. As one economist said, in the long term, we're all dead.

Quote by: tivodan1116 Well, the rationale behind those requirements is one of monopoly or near-monopoly. You mentioned the market working when there are "limitless" options... In a person's choice of where to post data on the internet, there ARE virtually limitless options, limitless for all practical purposes. The location of data becomes unimportant when the capability of search engines is taken into account. Search engines will locate the NAMBLA website, on their presumably censorship-free ISP, as easily as they locate the Christian Coalition. The technology of the internet makes regulation nearly pointless and usually ineffective.

Not even. A local oligopoly suffices.

Search engines favor popular sites, which is why Wikipedia's entry on foosball swims to the top of the list while my scholarly dissertation, despite its obvious merit, fails to break the top 100.

As in physical real estate, the three keys to the Internet are location, location and location. This is also why nobody responds to my foosball monograph, but there have been edit wars over the WP article.

TC

[Kamehameha34]

And if your high school education included even an introductory class on economics, you would learn a bit about barriers to entry. As for the threat of non-bigoted whites boycotting you, this is a distinct non-issue in certain times and places.

Barriers to entry apply to all businesses, and you only want to apply it when it hurts my argument? No dice.

When there are enough people discriminated against as to be disallowed entrance to a business, that creates enough of a demand to justify a new business which doesn't discriminate. The fact that there are 'barriers to entry' doesn't mean that it wouldn't happen. Honestly, where do you think that argument was going to take you?

"What if they're kicked out of the store?"
"Then they'd go to another."
"Yeah?!? Well.. what if everyone kicks them out?"
"That would create demand for a new store that wouldn't."
"Yeah!!!?!??! Well.. what if it's hard?"

[ThoughtCriminal]

Quote by: Kamehameha34 Barriers to entry apply to all businesses, and you only want to apply it when it hurts my argument? No dice. When there are enough people discriminated against as to be disallowed entrance to a business, that creates enough of a demand to justify a new business which doesn't discriminate. The fact that there are 'barriers to entry' doesn't mean that it wouldn't happen. Honestly, where do you think that argument was going to take you? "What if they're kicked out of the store?" "Then they'd go to another." "Yeah?!? Well.. what if everyone kicks them out?" "That would create demand for a new store that wouldn't." "Yeah!!!?!??! Well.. what if it's hard?"

Creating demand doesn't mean that demand gets met, due to barriers to entry.

For that matter, even if it's met, it won't necessarily be as good. After all, the new business has to give up patronage from bigoted whites in by allowing me in, so it might not be able to offer the same sorts of prices and selection, particularly due to a lack of economies of scale. I am, after all, part of a minority.

Since it's the only choice for me and others of my mistreated group, it offers a limited supply for the demand, thus driving up prices. To put it another way, they can afford to charge a premium since I have no alternatives. And, in the sick logic of pure capitalism, they have an obligation to charge what the market will bear. Congratulations: you've reinvented the bodega.

Ultimately, the bigotry of the bigoted store owners is costing me time and money. It is the source of economic damage. Moreover, it is hardly of any benefit to the economy as a whole, much less to society. Once again, the libertarian myth of infinite choices fails, while the libertarian puts property rights over human rights so as to support racism. Some things never change.

TC