First Amendment & Free Speech

Viral Hate coverThe Internet’s greatest blessing — its general openness to all speech and speakers — is also sometimes its biggest curse. That is, you cannot expect to have the most widely accessible, unrestricted communications platform the world has ever known and not also have some imbeciles who use it to spew insulting, vile, and hateful comments.

It is important to put things in perspective, however. Hate speech is not the norm online. The louts who spew hatred represent a small minority of all online speakers. The vast majority of online speech is of a socially acceptable — even beneficial — nature.

Still, the problem of hate speech remains very real and a diverse array of strategies are needed to deal with it. The sensible path forward in this regard is charted by Abraham H. Foxman and Christopher Wolf in their new book, Viral Hate: Containing Its Spread on the Internet. Their book explains why the best approach to online hate is a combination of education, digital literacy, user empowerment, industry best practices and self-regulation, increased watchdog / press oversight, social pressure and, most importantly, counter-speech. Foxman and Wolf also explain why — no matter how well-intentioned — legal solutions aimed at eradicating online hate will not work and would raise serious unintended consequences if imposed.

In striking this sensible balance, Foxman and Wolf have penned the definitive book on how to constructively combat viral hate in an age of ubiquitous information flows. Continue reading →

Declan McCullagh, chief political correspondent for CNET and former Washington bureau chief for Wired News, discusses recent leaks of NSA surveillance programs. What do we know so far, and what more might be unveiled in the coming weeks? McCullagh covers legal challenges to the programs, the Patriot Act, the fourth amendment, email encryption, the media and public response, and broader implications for privacy and reform.


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Alexander Howard has put together this excellent compendium of comments on Mike Rosenwald’s new Washington Post editorial, “Will the Twitter Police make Twitter boring?” I was pleased to see that so many others had the same reaction to Rosenwald’s piece that I did.

For the life of me, I cannot understand how anyone can equate counter-speech with “Twitter Police,” but that’s essentially what Rosenwald does in his essay. The examples he uses in his essay are exactly the sort of bone-headed and generally offensive comments that I would hope we would call out and challenge robustly in a deliberative democracy. But when average folks did exactly that, Rosenwald jumps to the preposterous conclusion that it somehow chilled speech. Stranger yet is his claim that “the Twitter Police are enforcing laws of their own making, with procedures they have authorized for themselves.” Say what? What laws are you talking about, Mike? This is just silly. These people are SPEAKING not enforcing any “laws.” They are expressing opinions about someone else’s (pretty crazy) opinions. This is what a healthy deliberative democracy is all about, bud!

Moreover, Rosenwald doesn’t really explain what a better world looks like. Is it one in which we all just turn a blind eye to what many regard as offensive or hair-brained commentary? I sure hope not!

I’m all for people vigorously expressing their opinions but I am just as strongly in favor of people pushing back with opinions of their own. You have no right to be free of social sanction if your speech offends large swaths of society. Speech has consequences and the more speech it prompts, the better.

Andy Greenberg

Andy Greenberg, technology writer for Forbes and author of the new book “This Machine Kills Secrets: How WikiLeakers, Cypherpunks, and Hacktivists Aim to Free the World’s Information,” discusses the rise of the cypherpunk movement, how it led to WikiLeaks, and what the future looks like for cryptography.

Greenberg describes cypherpunks as radical techie libertarians who dreamt about using encryption to shift the balance of power from the government to individuals. He shares the rich history of the movement, contrasting one of t the movement’s founders—hardcore libertarian Tim May—with the movement’s hero—Phil Zimmerman, an applied cryptographer and developer of PGP (the first tool that allowed regular people to encrypt), a non-libertarian who was weary of cypherpunks, despite advocating crypto as a tool for combating the power of government.

According to Greenberg, the cypherpunk movement did not fade away, but rather grew into a larger hacker movement, citing the Tor network, bitcoin, and WikiLeaks as example’s of its continuing influence. Julian Assange, founder of WikiLeaks, belonged to a listserv followed by early cypherpunks, though he was not very active at the time, he says.

Greenberg is excited for the future of information leaks, suggesting that the more decentralized process becomes, the faster cryptography will evolve.


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Free Press is holding its National Conference for Media Reform next week. The conference agenda describes the Internet as “central” to freedom of expression, which is how all mass media technologies have been described since the invention of the printing press ushered in the mass communications era. Despite recognizing that the Internet is a mass media technology, Free Press does not believe the Internet should be accorded the same constitutional protections as other mass media technologies. Like so many others, Free Press has forgotten that the dangers posed by government control of the Internet are similar to those posed by earlier mass media technologies. In a stunning reversal of the concepts embodied in the Bill of Rights, Free Press believes the executive and legislative branches of government are the source of protection for the freedom of expression. In their view, “Internet freedom means net neutrality.Continue reading →

Marvin Ammori, a fellow at the New American Foundation and author of the new book On Internet Freedom explains his view of how the First Amendment applies the Internet through the lens of constitutional law and real world case studies.

According to Ammori, Internet freedom is a foundational issue for democracy, equivalent to the right to vote or freedom of speech. In fact, he says, the First Amendment can be used as a design principle for how we think about the challenges we face as Internet technology increasingly becomes a part of our lives.

Ammori’s belief in a positive right to speech—that everyone should have access to the most important speech tools in society and be able to speak with and listen to any other speaker without having to seek permission— translates to a belief that Internet should be made available for everybody, without restrictions aside from those placed on offlinet speech.

Ammori goes on to explain why he thinks SOPA threatened to infringe upon free speech while net neutrality protects it, suggesting that allowing ISPs to control bandwidth usage is tantamount to forcing internet users to become passive consumers of information, rather than creators and content-spreaders.


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Joseph Reagle

Is geek culture sexist? Joseph Reagle, Assistant Professor of Communications Studies at Northeastern University and author of a new paper entitled, “Free as in Sexist? Free culture and the gender gap,” returns to Surprisingly Free to address geek feminism and the technology gender gap.

According to Reagle, only 1% of the free software community and 9% of Wikipedia editors are female, which he sees as emblematic of structural problems in the geek community. While he does not believe that being a geek or a nerd is in any way synonymous with being a sexist, he concludes that three things that he otherwise loves—geekiness, openness, and the rhetoric and ideology of freedom–are part of the problem inasmuch as they allow informal cliques to arise, dominate the discussion, and squeeze out minority views. Reagle also comments on a unintentional androcentricity he has observed even amongst free software community heroes, highlighting the ways in which this behavior can be alienating to women and prevents geek culture from growing beyond its traditional base.

Reagle prescribes a 3-step solution to sexism in geek culture: talking about gender; challenging and expanding what it means to be a geek; and not allowing the rhetoric of freedom to be used as an excuse for bad behavior.

Reagle further supports efforts to form female-only subcultures within the geek community, which opponents argue goes against the free software value of openness. Instead of the balkanization of their movement that opponents fear, these closed-group discussions actually strengthen geek culture at large, according to Reagle.


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James Grimmelmann

New York University law professor James Grimmelmann eulogizes Aaron Swartz, the open information and internet activist who recently committed suicide in the face of a computer trespass prosecution.

Grimmelmann describes Swartz’s journey from “wunderkind prodigy who came out of nowhere when he was 14″ to “classic activist-organizer,” paying special attention to the ideas that motivated his work. According to Grimmelmann, Swartz was primarily interested in power being held by the wrong people and how to overcome it through community organizing. Swartz was dedicated to his personal theory of change and believed that people who know how to use computers have a duty to undermine the closed-access system from within.

It was this ardent belief that led Swartz to surreptitiously download academic articles from JSTOR. Grimmelmann closely analyzes the case, providing a balanced view of both the prosecution’s and Swartz’s view of the issue. Grimmelmann additionally suggests possible policy reforms brought to light by Schwartz’s case.


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Gabriella Coleman

Gabriella Coleman, the Wolfe Chair in Scientific and Technological Literacy in the Art History and Communication Studies Department at McGill University, discusses her new book, “Coding Freedom: The Ethics and Aesthetics of Hacking,” which has been released under a Creative Commons license.

Coleman, whose background is in anthropology, shares the results of her cultural survey of free and open source software (F/OSS) developers, the majority of whom, she found, shared similar backgrounds and world views. Among these similarities were an early introduction to technology and a passion for civil liberties, specifically free speech.

Coleman explains the ethics behind hackers’ devotion to F/OSS, the social codes that guide its production, and the political struggles through which hackers question the scope and direction of copyright and patent law. She also discusses the tension between the overtly political free software movement and the “politically agnostic” open source movement, as well as what the future of the hacker movement may look like.


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Three rings for the broadcast-kings filling the sky,
Seven for the cable-lords in their head-end halls,
Nine for the telco-men doomed to die,
One for the White House to make its calls
On Capitol Hill where the powers lie,
One ring to rule them all, one ring to find them,
One ring to bring them all and without the Court bind them,
On Capitol Hill where the powers lie.

Myths resonate because they illustrate existential truths. In J.R.R. Tolkien’s mythical tale, the Lord of the Rings, the evil Lord Sauron imbued an otherwise very ordinary ring – the “One Ring”– with an extraordinary power: It could influence thought. When Sauron wore the One Ring, he could control the lords of the free peoples of Middle Earth through lesser “rings of power” he helped create. The extraordinary power of the One Ring was also its weakness: It eventually corrupted all who wore it, even those with good intentions. This duality is the central truth in Tolkien’s tale.

It is also central to current debates about freedom of expression and the Internet.

Since the invention of the printing press, those who control the means of mass communication have had the ability to influence thought. The printing press enabled the rapid and widespread circulation of ideas and information for the first time in history, including ideas that challenged the status quo (e.g., sedition and heresy). Governments viewed this new technology as a threat and responded by establishing control over the machinery of the printing press through state monopolies, press licenses, and special taxation.

The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.”

The Framers knew that freedom of expression is the foundation of freedom. They also recognized that governments could control thought by controlling the printing press, and included a clause in the First Amendment prohibiting government interference with the “freedom of the press.” Though this clause was aimed at the printing press, its protection is not limited to the mass communications media of the Eighteenth Century. The courts have held that the First Amendment encompasses new mass media technologies, including broadcast television and cable.

Several public interest groups, academics, and pundits across the political spectrum nevertheless argue that the latest mass communications technology – the Internet – does not merit protection from government interference on First Amendment grounds. They assert that neither the dissemination of speech by Internet service providers (ISPs) nor the results of Internet search engines (e.g., Google) are entitled to First Amendment protection. They fear that Internet companies will use the First Amendment to justify the exercise of editorial control over the free expression of their consumers.

Others (including the Competitive Enterprise Institute) argue that the First Amendment applies to bothISPs and search engines. They believe a government with unrestrained control over the means of mass communications has the incentive and the ability to use that power to control the thoughts of its people, which inevitably leads to authoritarianism. They point to Internet censorship by ChinaSyria, and other authoritarian governments as current proof of this principle.

Both sides in the Internet debate raise legitimate concerns. I suspect many consumers do not want ISPs and search engines to exercise unfettered control over the Internet. I suspect that just as many consumers do not want government to exercise unfettered control over the Internet either. How can we resolve these dual concerns?

The free peoples of Middle Earth struggled with a similar duality at the Council of Elrond, where they decided what should be done with the One Ring. “Why not use this ring?” wondered Boromir, a bold hero who had long fought the forces of Sauron and believed the ring could save his people. Aragorn, a cautious but no less valiant hero, abruptly answered that no one on the Council could safely wield it. When Elrond suggested that the ring must be destroyed, mutual distrust drove the Council to chaos. Order was restored only when Frodo, a hobbit with no armies to command and no physical power, volunteered for the dangerous task of destroying the ring.

The judicial branch is our Frodo. It has no armies to command and no physical power. It must rely on the willingness of others to abide by its decisions and their strength to enforce them. Like the peoples of Middle Earth who relied on Frodo, we rely on the courts to protect us from abuse of government power because the judicial branch is the least threatening to our liberty.

This is as true today as it was when the Constitution was signed. Changes in technology do not change the balance of power among our branches of government. As we have in the earlier eras of the printing press, broadcast television, and cable, we must trust the courts to apply the First Amendment to mass communications in the Internet era.

Providing ISPs and search engines with First Amendment rights would prevent dangerous and unnecessary government interference with the Internet while permitting the government to protect Internet consumers within Constitutional bounds. Although some advocates imply otherwise, application of the First Amendment to Internet companies would not preclude the government from regulating the Internet. The courts uphold regulations that limit freedom of expression so long as they are narrowly tailored to advance a compelling or substantial government interest.

We have always trusted the courts to balance the right to freedom of expression with other rights and governmental interests, and there is no reason to believe they cannot appropriately balance competing concerns involving the Internet. If the courts cannot be trusted with this task, no one can.