Editorial – Free Speech and Self-Expression

 

“Sticks and stones can break my bones but words can never hurt me.”

 

I guess I am a bit like Napoleon (and I don’t mean Napoleon Dynamite from the recent movie) during his last exile. He was left only with his words. Of course, I’ve never “conquered” anything. I was proud to be a peon in the information technology business, and reserved my own psychological purpose for my own personal life. Like the teenager Cooper in the new Tollin/Robbins ABC series “The Days,” I wrote many things, not to “become a writer” but to express a set of related ideas about personhood and morality. In the late 90s, I started self-publishing, books and then a large website. This was what I was proud of. It did not require confronting other people directly, or competing according to their rules.

 

I can certainly play devil’s advocate with my own motives. I idealize people, but I don’t enjoy people just for the sake of being people. That may be bad. I am a male but psychologically feminine, and in the minds of some people that makes me a potential parasite. My big mouth attitude can draw criticism of disloyalty, especially to my blood family, and to various political interest groups with which I have been connected during the life. I am adamantly non-partisan.  Instead of showing solidarity, I become a new kind of asymmetric competition. Many people assume that one only earns the right to be heard when one has paid his dues by working for someone else’s interests first (especially family) and proving that he is “man enough” (or woman enough) to advance (even when this means slipping into outright hucksterism). In past times, the right to speak and be listened to as an individual was usually viewed in practice as a privilege to be earned by paying one’s dues (especially through allegiance to family), not a fundamental right—even though the First Amendment has long said otherwise--apparently. Unsupervised speech, as in Martin’s Luther’s time after the invention of the printing press, was seen as potentially subversive; we have had rather unconstitutional sedition laws in our history.[1] (In fact, you could look at the other way; the Alien and Sedition Acts of 1798 probably reflected the belief that once something was officially “published” it had power and credibility; Jesus, in an ancient era long before electricity, let alone Google and myspace, was perhaps the ultimate seditionist by saying that Caesar’s powers really didn’t matter that much!) But, now, after a long period of freedom aided by technology, I move ahead anyway with my own voice and my own compilations, my own attempts to connect the dots. I am the perfect introvert. I raise the basic question about diversity: is it just a deferment from paying one’s dues, or is it an essential social resource? Could free speech as a fundamental right in some cases be predicated on the individual’s accountability to or authentication by others? I can actually imagine some scenarios where this could become possible, and they might get back to the question of the obligation to be one’s “brother’s keeper.” 

 

Yes, I am the elder for the First Amendment, but we have to understand that free speech has many different contexts in its social meaning and in law. Unsupervised self-expression is certainly the area most important to me.  And certainly past generations considered my mode of operation dangerous: we used to have sedition laws (however unconstitutional), and during World War I you could go to jail for criticizing the draft. Society has sporadically mistrusted individual dissent since biblical times, ever more so as technology makes speech available to more people. Martin Luther and the printing press endangered the established church, and the Chinese a few centuries earlier squashed it—at great cost to their own advancement as a competitive civilization. As society has become wealthier, however, it has tended to become more welcoming of new and unconventional speech.

 

Speech, however, also has an important social aspect. The First Amendment talks about freedom of assembly and petition, and of both individual and collective worship and faith. Expressive association has become an important legal concept (as a subordinate fundamental right), as in the case of the Boy Scouts’s ban on gays, which, unlike the situation with the military, tests the ability of people to associate privately in manners of their choosing. Conservatives and liberals alike depend on both individual and collective speech to advance their views and paradigms. Some speech rights regarding journalism and content have traditionally belonged to the established press rather than the individual, and in the age of personal websites and blogging this can again create new legal and constitutional controversies.

 

Some free speech controversies of the day actually follow old technologies and expressions, but reflect a newer concern over objectivity and allowing all sides to express their views. For example, a student in California was ordered to not to wear an anti-gay T-shirt after a student group had organized a “Day of Silence.”[2]

 

The center over the speech revolution is, of course, the Internet. The “wild, wild west” mentality has encouraged a huge amount of profiteering, pornography, shallow marketing schemes, outright scams, as well as destructive teenage rebellion. You wonder why people with the talent and self-taught hard skills and mental agility to write worms and viruses cannot find economically productive employment—or is it that they don’t want to, it won’t make them “important” enough as persons, or won’t impress their “friends.” Is it the “because I can” mentality that former president Bill Clinton writes about?  On the other hand, the Internet may attract sincere content providers who don’t have the curiosity or quickness necessary to pick up a thorough technical knowledge necessary to prevent abuse by others or to handle technical problems in novel, often unstable platforms. The lack of accountability and authentication of participants in Internet self-promotion threatens to discredit legitimate participants and begs to create a political climate where newbies might be considered attractive nuisances, risking unimagined modes of downstream liability for harm done by others. The “democratization” of publishing (and of the technology that enables it) does have the tendency to dilute the credibility of activities like writing or applications programming as professions—a point not lost on companies that consider outsourcing for formerly stable jobs and career paths.  On the other hand, a significant portion of late 1990s Internet jobs were in activities that have become perceived as illegitimate or become sometimes illegal (spam), and seem equated with ‘get rich quick” marketing pyramid ideas than real new wealth.  Even so, the speed with which ordinary individuals, in the mid 1990s, got the inexpensive capability to broadcast their ideas and make names for themselves is, in historical terms, astonishing. Although “self-promotion” may increase the audience and effectiveness of speech, does it enjoy the same degree of First Amendment protection as more convention models for incidental or group-motivated “expressive association” speech?  Already some lawmakers and various other people have complained about being placed in a “public space” by bloggers without being contacted first, and we are now seeing how blogging, even if one’s own resources, can create potential conflicts of interest with one’s employer. We are also seeing a threat to political blogging by (court-ordered) plans by the Federal Election Commission to extend (in 2005) the Bipartisan Campaign Finance Reform Law of 2002 to the Internet.[3][4]  Courts have protected commercial speech and presumably would indirectly protect self-promotional speech (as compared to “expressive association” which intuitively may seem to have an even greater degree of First Amendment protection[5]); a replacement of the military “don’t ask don’t tell” policy still might have to deal with gradations on “off duty” individual speech in public spaces like the Internet.

 

The past few years have seen a number of problems that raise the question of how much responsibility someone in my position must take.  The mechanisms that enable speakers to self-publish and reach worldwide audiences with little capital do raise a variety of downstream risks to others. The most immediate one for me is Internet censorship, since I am a litigant challenging COPA (the Child Online Protection Act). How much expense should be expected from entrepreneurs to protect children from inadvertent access to inappropriate materials?[6] (The question comes up again with the proposed new Child Internet Safety and Protection Act of 2005.) Right now, the answer, fortunately, is not that much, as the Supreme Court majority expresses concern about content based speech restrictions and the First Amendment. Of course, though, you can make the argument that if someone is “legitimate” enough to make money and hire employees in a publicly accountable company, he could afford the steps. It is important to realize that COPA might have intruded into non-pornographic but adult areas; some people believe that sexual commitment (especially for me) is so precarious that even well-conceived “free speech” from amateurs intending self-promotion might be harmful to those who would otherwise make and keep sexual commitments to marriage and family—and such an observation ignores rationality and seems to focus on marriage and family as valid only as a shared, community experience.  But the kind of thinking that would discourage unsupervised self-promotion could go into other issues. There is much work to be done in the issue of domain names and accidental trademark infringement. Likewise there are major risks that well-intended laws to protect artists, musicians, and movie producers from copyright infringement or piracy (these laws, if allowed by the courts, could create downstream liability for ISP’s and for software vendors of file-sharing programs) will burden new artists trying to get their work produced, created, and distributed. (Union and zoning rules could get in the way here, too.)  More serious is the implications of spam and viruses: could individuals whose domains are spoofed be considered nuisances, or what happens if a domain is hijacked to abet denial of service attacks or even to send child pornography or terrorist threats? There is considerable potential legal liability here, but very little in the way of actual prosecution (under the Patriot Act) of ordinary web business has actually occurred. The latest terrorist warnings (as of summer 2004) remind one of the possibility that terrorists could hijack legitimate sites to transmit steganography or post their own hate speech. Individuals who have drawn attention to themselves could also make themselves and associate persons (families, coworkers) marks for terrorists.  Insurance carriers have already expressed refusal, sometimes, to provide media perils coverage to some writers of “controversial” material.  Several companies (ChoicePoint and LexisNexis) that collect data have been hacked, raising the risk to the public for identity theft: bloggers offering free content do not pose this risk, but possibly small businesses that sell with credit cards on their own servers do present a risk (customer’s data is not published but can be a target for hackers)—will politicians see the difference between a “non-issue” and a real crime?  (There are some small companies that offer “background checks” and skip tracing information about almost anyone, without almost no oversight right now, and this raises the question of how any system of regulating them would not overreach into sites that simply provide bibliographic information.)  And, actually, there are other subtle risks with self-published free content—even though we are getting a handle on defining content that is patently illegal (obscenity, child pornography, etc.). In some situations, provocative content (especially fictive) might be construed legally as proof of wrongful intent relative to something.  Or one might be linking to other content that is illegal with the untraceable purpose of profiting eventually from illegal behaviors of others.  All of this makes me wonder if we could he headed toward an environment were domain owners or at least ISPs have to be bonded, or where individual domain operators without capital may be forced to work just within subdomains regulated by large media companies. The freedom to obtain “public power” on the Internet with little capital may continue indefinitely.

 

The bonding issue reminds me of comments I used to hear fifteen years ago in a more conventional information technology mainframe environment, when security products were becoming popular. It seemed that in many companies, outside of the area of government security clearances, there were few controls on the character of those allowed to access sensitive corporate information, so the idea of bonding employees was tossed about occasionally. It didn’t come to anything. If done with domain owners it would raise First Amendment questions, but these might also be cast as accountability issues (in the context of self-promotional speech) that do not by themselves violate free speech in the sense of protest or activism. Today, by the way, the character of ordinary employees in data centers and their physical security comes up in conjunction with identity theft.

 

I have created a bit of a stir with some other pieces in which I maintain that people with certain kinds of jobs (military, having direct reports, selling publicly) probably should not express their own opinions in their own blogs without supervision. Persons in such situations might have to be content with allowing organizations and lobbying groups (e.g., “expressive association”) to speech for their interests, which is regrettable because objectivity is lost. If I am a public school teacher, for example, should I be able to speak for myself about gay rights, to protect myself? You would think so, but the things that I have to say are complex and disturbing and go way beyond the more conventional speech about diversity and minorities. It is difficult for me to say what I need to say without risking significant disruption for my employer in that case. The search engines are part of the issue.[7] 

 

Readers and users provide a counterweight to balance the free speech chemical equation.  In some cultures (especially older religious or familial ones), ordinary people are used to accepting simple truths dictated to them and do not perceive need to explore the cyber world on their own for deeper substance. Some surveys have shown that many Americans do not place a particularly high value on free speech and believe that there is too much freedom to speak.  Why? Some of this observation comes from the connection between individual speech and self-promotion, and the idea that individual speech invokes disloyalty (especially to family, blood, and religion). Many people grow up in a world that accepts the idea of stratification into opposing camps and enemies, so for one person to break ranks can endanger stability for others. The rapid passage of visual media—a lot of it self-published with little accountability, and a lot of it purportively wholsesome, not just pornography[8]--before the eyes in modern society reminds people of new ideas of desirability and attractiveness and may well interfere with older forms of socialization that, in a practical sense, enabled couples to stay together and remain not just faithful but actively interested, without excessive cultural distractions while they raised their kids. It’s hard for some people to tolerate honest open statements by older persons that they find younger persons “attractive,” even if most people (outside of the very religiously disciplined) actually do. (The older notions of sexual abstinence outside of marriage also feed this process.) There is a natural tension between responsibility for others and loyalty, which are virtues up to a point, and objectivity and thoroughness in speech, and in critical thinking and in the cognitive capacity to “connect the dots.” The ability to see things in abstraction and from outside of oneself (and express these things openly) becomes itself psychologically controversial.

 

Indeed, civility would suggest that one should be able to criticize the ideas of a religion or political ideology or aims of a nationalist group without directly insulting individuals of a group, but self-appointed spokespersons for various groups want to invoke “tainted fruits” and “blood libel” ideologies and say that ain’t so.[9]

 

The self-publishing explosion does again reinforce a cultural debate about whether free speech is most of all an individual right. An individual may present very personal material on the Internet, stuff that he or she would not say in a normal social or professional in-person situation; then this material might be discovered later through search engines and, although the speech was legally protected by the established norms of intellectual property law where some due diligence by third parties is performed, it could create unexpected and enormous disruptions in a workplace or family or residential community. Should families or employers, maybe even landlords or homeowners’ associations, be allowed to control what persons can say (or imply) even about themselves in such a medium? It seems as though this could be a question in the future. We cannot be sure that the legal standards for content will always be independent of the way the content was published or distributed, where in the past it was easier to predict who the probable audience would be.

 

When people first started becoming low-cost speakers on the Internet in the 1990s, we really had no idea where we were heading![10] The roller-coaster ride ahead could turn things upside down, all right. I do wonder whether, down the road, we are heading toward a new legal or constitutional paradigm of free speech, where the circumstances and intentions of the speaker, as well of the spoken content, affect his fundamental right to be heard. Or is being listened to a privilege to be earned?

 

Extra Note:

 

Newt Gingrich is reported to have suggested that free speech curbs are needed to keep terrorists from getting their messages out on the Internet, with horrific WMD threats. He seems to hint that changes at the constitutional level are needed. Elsewhere I have talked about steganography.  Here is the story at NBC 4 in Washington.

The British plot (the arrests and TSA announcement 8/10/2006) reminds us that, as with 9/11 itself, ordinary objects can be fashioned into unusual weapons. This idea is well known from the movies (even back to the 1940s, as with some Hitchcock films). Much post 9/11 attention has been focused upon WMD's and weaponizing substances that would he very difficult for "ordinary" terrorists to procure. Films and Internet speech about WMDs may have the benefit of informing the public and politicians (as about nuclear materials loose in the former Soviet Union, North Korea, and around the world) without providing practical executable "ideas" to people with bad intentions. Free flowing speech about how to weaponize ordinary objects, which is common on the Internet, could have conceivable consequences of (in a legal sense) "enticing" others to act. So far in the United States (much less so in Britain and Europe) the First Amendment has tended to protect such speech (although there has been some "successful" litigation against writers and speakers, like the Paladin Hit Man novel that was followed as an assassination manual in the early 1990s); we would be concerned about the trends in the future (particularly contextual problems involving presumptive thinking or “skunk at the picnic”) as the public ponders plots such as this one in Britain, using ordinary materials. I do not knowingly or intentionally provide explicit details on how to weaponize items, although I have certainly mentioned movies and books that may have done so.

On August 15, 2006 The Washington Post wrote an editorial called “Espionage Lite: Talking about secrets becomes a crime” in which the newspaper discusses a couple of vaguely worded and obscure laws that prohibit the disclosure of classified (for national security reasons) information by citizens even if discovered inadvertently (by "ordinary people" without security clearances or jobs requiring clearances) during the course of lobbying or political advocacy, or if passed to an individual (whether a professional journalist or not) as a “tip” by a third party. The editorial did not name the statutes. I will try to find out what they are. The case involves a federal judge (Elllis) in Virginia and two former executives (Steven J. Rosen and Keith Wiessman) of AIPAC (The American Israel Public Affairs Committee), who reportedly got information from a Pentagon employee and then may have given it to Israeli officials and other reporters, people not cleared to receive it. 

The Washington Post provided this to me. Because of its importance, I am taking the liberty to post it,
 however tentative or provisional the information, immediately:
 
The relevant statutes, I'm pretty sure, are 18 U.S.C. 793 and 18 U.S.C. 794.
 The latter is the traditional espionage law--ie. the prohibition against spying for a foreign power.
 The former, the statute at issue in this case, has several subsections.
 Rosen and Weissman were, I believe, charged under subsection (e),
 which prohibits anyone not authorized to possess national defense information from transmitting it
 to any other person not authorized to possess it or refusing to return it on demand to the government.
 That's from memory, but I think it's all correct.”
 
I’ll keep the reader posted. 
 
Newspaper reporters have been sued sometimes for pressuring potential criminal suspects.

 The family of a mother who committed suicide when suspected of her son’s disappearance sued CNN Reporter Nancy Grace and the network,

 on Nov. 28, 2006. AP story by Stephen Majors here (was presented on ABC Good Morning America):

 There is a question of damages if reporters push a person “over the edge”.

 

 

©Copyright 2004/2006 by Bill Boushka, subject to fair use

 

Child Online Protection Act (COPA):  Account of Supreme Court oral arguments (2004);  Comments on 2004 Supreme Court Opinion

For other important materials on free speech, please note these links on doaskdotell:  http://www.doaskdotell.com/content/speech.htm

  http://www.doaskdotell.com/content/trism.htm#hacking http://www.doaskdotell.com/content/trism.htm#misleading http://www.doaskdotell.com/content/espam.htm

 

Survey table on public opinions about free speech

 

Letter to Rep. Jim Moran on Internet and privacy concerns

Personal perspective on the “privilege of being listened to”

COPA link

Blogging discussion;  Proposed blogging policy

Blogger entry on Wikileaks (anonymous dissent)

 

 

Return to home page

Return to controversial issues page (note the links for COPA and other speech issues)

 

Email  JBoushka@aol.com    or contact link

 

 

 

 

 

 

 

 

 

 



[1] Matthew Rothschild, “A Seditious Nurse,” “McCarthyism Watch,” The Progressive, Apr. 2006, at http://progressive.org/mag_mc020806 relates the consequences for VA nurse Laura Berg for a letter to the editor of a paper Alibi (http://www.alibi.com/index.php?story=14092 ) in which she displayed strongly worded criticisms of the Bush administration (she used the fighting words “act forcefully to remove…”)  Her employer (the VA) seized her computer but quickly found it had not been done at work, and then accused her of “sedition.” The ACLU is fighting this. An interesting question occurs if she had done his herself online with her own blog or website.

[2] The Washington Post, Aug. 7, 2006, editorial, “When Students Speak: Does the First Amendment protect public school students who want to bait gays?” is about the case of Tyler Chase Harper, who wore a T-shirt that quoted the Bible and read “Homosexuality is shameful.” The Post writes: “Public schools should not be at once assisting an advocacy group in drawing attention to the plight of gay and lesbian students and forbidding those with deep religious objections from wearing a shirt expressing their feelings.” Tinker was about expressive clothing at schhol.  From here, of course, we go to blogs, personal sites and profiles as my own essay proceeds.

[3] This is a pretty complicated picture. Campaign Finance Reform is supposed to prevent special interests from donating to candidates just to get their pork barrel through. But legally, it is very difficult to draft regulations so that the political activities of individuals (when they assist a candidate and come to be viewed as “contributions”) don’t become illegal or pose downstream liability risks. There are legal distinctions between different kinds of media because the established press is supposed to have practices in place to guarantee objectivity (obviously this is a bit of a canard). Conceivably, free political commentary by activists could be construed as a “contribution” but the most likely targets seem to be links to candidates

 sites and email lists. Check out the article is “The Coming Crackdown on Blogging” by Declan McCullagh, at

http://news.com.com/The+coming+crackdown+on+blogging/2008-1028_3-5597079.html?tag=st.prev

Also see my essay at http://www.doaskdotell.com/content/blog.htm

My letter to Congress is at http://www.doaskdotell.com/personal/submissions/tomoranfec.htm

 

 

 

[4] Brian Faler, “FEC Considers Restricting Online Political Activities: New Rules May Apply to Web Ads, Blogger Endorsements,” The Washington Post, Mar. 21, 2005 suggests that sites like Dallykos.com, Instapundit.com, and Atires.blogspot.com could be affected, but the biggest attention could be on political contributions made through websites, and this would not be controversial (paid [by contributions] political ads in print newspapers re regulated today, but political ads on websites are not).

[5] Dale v. Boy Scouts of America

[6] Jeff Diamant, “N. J. Town’s Orthodox Jes Sign Off Internet at Home,” The Washington Post, June 24, 2006, p. B9. Rabbis in Lakewood, NJ have told the parents of yeshiva students not to access the Internet at home, even for school work. This is a collectivist measure to protect children from pornography, adult material, unusual ideas, or other harmful materials.

[7] In Garvetti et al. v Ceballos the Supreme Court ruled (May 2006) that public employee whistleblowers are not always shielded by the First Amendment in voicing concerns as part of their duties. The First Amendment still seems to shield them off work, but Maryland Governor Robert Ehrlich fired Metro Board Robert J. Smith for claiming “homosexual behavior, in my view, is deviant” on a cable program debating gay marriage, when speaking for himself. Maybe this was because he was a political appointee.

[8] Although Pamela Paul, author of Pornified, (Times, 2005) talks about “virtual adultery” associated with Internet pornography as greatly increasing the divorce rate in the past eight years.

[9] Ian Buruma, “The Freedom to Offend: How communities control language,” The New Republic, Sept. 4, 2006, p. 21. Ian discusses Salman Rushdie as the exponent of individual civility while criticizing groups, and discusses the assassination of filmmaker Theo van Gogh. Britain in 2005 passed a law against “stirring up hatred” against any group for its religious groups, and it is easy to see how such a law can be twisted. 

[10] Of course, many more totalitarian countries censor political speech, or require ISPs – even American ones – to do so in their countries. For China, see the AP story, 1/6/2006,  by Joe MacDonald. “Microsoft Sguts Down Chinese Blog”, http://hosted.ap.org/dynamic/stories/C/CHINA_BLOG_SHUTDOWN?SITE=OHRAV&SECTION=HOME&TEMPLATE=DEFAULT