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Wednesday, November 24, 2010

Free Speech And The Internet

The joke goes: one of the cool things about Alzheimer's is that you learn something new every day. The same is true of old people and technology. My friend has recently become alarmed about a new - to him - phenomenon: the internet. Now retired from a life competing in the bloody killing fields of high school football, Valley golf courses and various courthouses, he had discovered surfing of the browsing sort.

Inevitably, he came upon a website which disseminated Tea Party treats with arsenic centers. Reviving his vigor for combat, he used his legal skills to argue against their vitriol, lacing his inconvenient but legally correct factual revelations with his own brand of counter vitriol. He posted scathing comments responding to know-nothing blog posts and other comments without mercy to the feeble-minded.

As a result, he found that eventually, his comments were deleted. He complained to me about this and I tried to explain the concept of "moderating" comments. "Where's the First Amendment?" my friend cried.  "This internet thing is outrageous. This isn't free speech."  To no avail, I tried some logic of my own with a legalistic Socratic analogy: "Don't newspapers censor letters to the editor that criticize their articles?" He was having none of it. "This is different. The internet is full of lies and no one can challenge them."

He decided to do more legal research. Having learned the magic word: "Google", he now spent his life in research. So he sent me proof. An article in "The Atlantic" online edition by Garrett Epps, a legal journalist and law prof at the University of Baltimore.

Epps reported on the Supreme Court oral argument in the so-called funeral-picketing case, in which a church picketed and on their website ridiculed the funeral of an American soldier, in protest over some perceived lack of religious education his parents had provided, involving gays in the military or some stupid notion. The parents were offended by the action and sued the church members for "intentional infliction of emotional distress." One problem for the plaintiffs was an element of such torts: that the "victim" has to be confronted by the action. Does posting on the internet meet this test. The statute and older case law never anticipated this issue - is the internet different from Hyde Park corner, or radio? If so, is the difference legally significant.  And, hey, what about the First Amendment? The traditional refuge of scoundrels like Neo-Nazis, Daniel Ellsburg, and others. 

So, here's what I wrote back to my friend.

Thanks for forwarding Garrett Epps’ opinion piece in The Atlantic. It is an interesting if superficial analysis of some of the issues presented to the law by internet speech. Although he makes a few cogent general points, I disagree with his tone, which is a bit hysterical and with his conclusions, which are speculative and argumentative with insufficient factual support.

The author’s citation of the Prop 8 case is inapposite. There, the court censored broadcast of the gay marriage trial proceedings on Utube. But that was well within precedent. The rationale was to prevent intimidation of potential witnesses. This is traditional balancing: fair trial vs. free press.

The reference to Breyer’s concerns about the potential need for new rules in the funeral picketing case is weak support for the case for “radical change” (i.e., reduction) of First Amendment protections. Breyer himself recognized that televising was not significantly distinguishable (in this context) from the internet publication in this context:

“So now we have two questions. One is, under what circumstances can a group of people broadcast on television something about a private individual that's very obnoxious? . . . And the second is, to what extent can they put that on the Internet, where the victim is likely to see it? Either on television or by looking it up on the Internet. Now, those are the two questions that I'm very bothered about. I don't know what the rules ought to be there.”

Breyer’s voiced worry about the Koran burning video disseminated to the world on the internet is also an issue that can be treated within the traditional context of First Amendment analysis. Breyer himself acknowledges this with his reference to Holmes’ fire in the theatre example, which has been a hypothetical bright line in the law for more than 100 years.

That doesn’t mean the internet doesn’t pose new and difficult issues for consideration by the law. It certainly does. As a source of unauthorized, unedited and unverified information, it is a dangerous weapon in the hands of advocates of any persuasion, left, right, lunatic.

But civilization has faced similar challenges many times. With the invention of the printing press the law had to alter its notions about slander, recognizing the greater danger of the written word, upping the penalties for libel. When technology permitted cheap publication, allowing access by all classes to “The Press”, its power was seen as frightening, even potentially disastrous by the elite educated leaders who previously held a monopoly on ideas and arguments. Eventually, the process became so cheap that anyone with a mimeograph machine in the basement could foment revolution, on paper at least.

Concerned “journalists” decry the lack of editorial control over content of blogs and other sites. This is true. It is also, as the author writes, “instantaneous,” “ubiquitous,” and “persistent.”

These issues create problems, but are they unique in the history of the law? Do they require reduction of our First Amendment protections? I am still a “free market” conservative when it comes to the “marketplace of ideas.”

I believe the time has long since past when people assumed that whatever was printed must be true. Of course there are some who will, either out of ignorance, or wishful thinking. The internet has not (yet) altered human nature. Humans often choose to believe and to act — based on faith rather than reasoning. Hatred or fear of Obama leads to “birthers” and this rumor is of the kind that would have thrived at any time in our history.

For example, Lincoln was widely reported to be and believed by huge portions of the public, north and south, to be part “Negro” - there was no Gallup poll back then but penny newspapers gleefully spread the rumors.

Frets about the accuracy of information on the internet seem to me to be not any different than what appeared in biased American newspapers for 200 years and more. Pro Hamilton / Federalist publications printed rumors about Jefferson’s love life. Jefferson even financed print reports about Hamilton’s scandals. The lies published about Lincoln keep historians employed. Fox News need not be on the internet to carry enormous influence in its biased reporting.

I am dubious about the ability of the nine members of the Supreme Court, especially those currently sitting, to define universal rules for internet censorship that would be effective and unharmful. Their “conservatism” may lead them to favor the “individual” over the “police power” of the state, whereas the “liberals” as exemplified by Breyer, are even more dangerous to individual liberties because they tend to look to government for rational regulation of behavior. But I don’t trust either side to be intellectually honest or intelligent in deciding such issues.

Having studied the history of the 4th Amendment, you know as well as I that it is always in times of crises and in extreme cases that our panic results in diminishing our rights. Once forfeited, these rights are difficult to regain. 

[NOTE: My friend was able to gain a measure of revenge against the nutso webbies. One blogger or commenter suggested to his readers that our president was a usurper who deserved the fate or all such usurpers.  My friend called the Secret Service, asking whether athreat against the life of the president was something they might be interested in knowing about. He received a cordial response and felt that he had succeeded in striking a blow against the blowhards in the war in cyberspace.]

Who says all wars are fought by the young.  

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