Hooman Karamian a/k/a Nik Richie who runs the “Trash Your Former Best Friend“ website, TheDirty.com has long been the “Teflon Don” against accusations of defamation and other nastiness posted on his web site. His bullet proof armor has been Section 230 of the Communications Decency Act which provides passive web site operators liability immunity for content posted by others including anonymous comments. In other words, a blogger or forum host isn’t responsible for defamatory comments by anonymous commenter.
It appears that Senator Joe Lieberman is about to strip that armor and render the emperor of vile posts and defamatory comment as well us all other web across the internet naked to potential liability for passive postings on their sites.
Without CDA 230 immunity from these comments, sites like theDirty and practically all consumer rating sites such as Yelp and The Rip Off Report would be sitting ducks for litigation would be forced to shut down. Many may think this is a great idea to shut down sites like theDirty but the hit to Free Speech will be much further reaching affecting all of us.
According to the Free Speech website “McIntyre v. Ohio”:
This amendment to that law would change that, by stripping out the immunity and leaving web hosts potentially liable. A draft of the bill, apparently to be introduced tomorrow, is here: Section 230 Amendment The act as it stands now reads:
No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.
The amendment reads (underline is an addition and strike through is a deletion in legislatureland):
No A provider or user of an interactive computer service shall may be treated as the publisher or speaker of any information provided by another information content providerThe amendment reads (underline
One may look at this and think, “good riddance to sites like the Dirty” but free speech for one is free speech for all, even commentary we find offense. If this amendment passes, we are all stripped naked in our ability to engage in the honest and blunt discourse that anonymous commenting protects. It puts an unbearable burden on not only the sites we might not like but the sites that encourage legitimate discourse. All consumer rating sites would disappear practically overnight.
I came across an interesting piece about cyber-bullying of gay, lesbian, bisexual and transgender teens on Facebook and the steps the social network was taking to combat it. This is nothing new. As long as their are people, there will be hate speech. It’s the human condition. As a representative correctly point out, Facebook is just as vulnerable to this condition as other cross-sections of society.
What I found interesting was the hate speech/free speech discussion. When does free speech become hate speech in social networks like Facebook?” I was at first confused. Is not hate speech for the most part free speech? That is unless it incites others to imminent violence, threatens the President Of The United States and some other narrow exceptions. Why make the confusing distinction? The reason the distinction was valid in this article was that it was specifically referring to Facebook and not the brick and mortar world. Facebook is a community that attempts to emulate 1st Amendment ideals of free speech but that’s where it ends. It ends there because Facebook is a private company. As such, the 1st Amendment and traditional free speech values have no practical bearing. Free speech and hate speech are just terms of art within the network to be adjusted by the network to best suit the interests of the network. Translation? Free speech and hate speech are whatever Facebook and other social networks say they are at any given moment.
So what are they? Two years ago, I debated this very issue with Facebook representatives relating to Holocaust Denial. I felt that Facebook Groups promoting Holocaust Denial were in themselves “hateful content” as outlined in Facebook’s Terms Of Service and should have been removed from the site. Facebook felt differently. I even presented my thoughts to a group of employees at Facebook corporate offices. While not agreeing with their position, I came to understand their point of view about having internal standards to which employees can look at content and not have to make value judgments about a particular type of speech. Without such standards Facebook employees assigned to deal with these issues would be overwhelmed with disputes over content that one person may find “hateful” and another felt was legitimate expression. They could not hire enough employees to deal with these types of disagreements. As one employee put it, Facebook was looking for “binary certainty” in making these decision on “hateful content”.
There is the rub. What is the binary standard? To this day, to my knowledge, Facebook has never released or publicly stated how they evaluate “hateful content”. Where and how do they draw the line? I have an idea how they do it because I was privy to internal exchange with their employees. Why not tell everyone. Why not some transparency. The same transparency many employees acknowledged was lacking when I spoke there. Two years later, nothing much has changed with regards to “free speech” and “hate speech” The general user perception is that it is whatever Facebook says it is. At least in the brick and mortar world I can pull up The Constitution and Supreme Court opinions that guide me. That standard does not represent the beliefs of all Facebook users across the world but for better or worse that is the standard Facebook uses. It’s transparent. Emulate that aspect as well.
A federal appeals court has ruled that a lower court should not have dismissed a charge that avowed Virginia white supremacist, William White, made postings on his web site urging others to harm a juror.
In 2008, White published the name, photograph, home address and phone number of a juror on his site in an entry entitled “The Juror Who Convicted Matt Hale.” The juror had been foreman of a jury that convicted another white supremacist, Matthew Hale, of soliciting the murder of a federal judge.
White had earlier written on his website that “everyone associated with the Matt Hale trial has deserved assassination for a long time.”
In dismissing the charge last July, U.S. District Court Judge Lynn Adelman noted that White broke no laws when he dug up the publicly available contact information for the juror and posted it to overthrow.com. Adelman further stated that:
“An intimidating context alone does not remove the protection of the First Amendment.”
Where do we draw the line between hubris/intimidation and true threat? In these types of cases, context is king and intent is queen. While the the linchpin here seems to be the posting of the address in conjunction with the other posts, it should be noted that the information was publicly available. It however, is all part of context. White was not some flaky loner nut case. He was an avowed white supremacist. He had a following. Does this type of context take it beyond intimidation into the world of imminent incitement to violence against the juror? While I have misgivings about whether these facts fall outside the 1st Amendment, it seems clear that if you you post addresses, even publicly available, in conjunction with even vague threats, it will be looked at in a more critical light even if the threats in themselves would be protected. What also seems clear is that there is no bright line standard for these types of cases. It’s all about context.
An interesting side note is that one of the appellate judges in this case, Richard Posner recently testified as a witness in the case against Neo-Nazi radio shock jock Hal Turner who was charged with encouraging his readers to murder Posner and two other federal judges in retaliation for upholding the Chicago handgun ban which was recently struck down by the Supreme Court. Did that case have any influence on the decision here? In the Turner case, Posner and the other judges testified that they felt threatened by Turner’s posts. Posts that were not much different in tone and if anything more explicitly threatening than White’s posts. That case has resulted in two mistrials
Israeli Ambassador to the United States Michael Oren was invited to speak to about 500 students at University of California at Irvine on Feb. 8.
About 6 minutes into the presentation a number of protesters from the Muslim Student Union rose and began chanting, “MR. OREN! MASS MURDER IS NOT FREE SPEECH!” as well as allegedly yelling “Killers!” “How many Palestinians did you kill?”
Mr. Oren left the stage but eventually came back out and finished his presentation. The protesters were removed from the venue by security. 11 were arrested for disrupting a public proceeding and the students among them face university discipline.
There has been debate over whether the students who were engaging in what is being called a “heckler’s veto” should be punished. Were the students engaging in protected free speech which would preempt any type of discipline? Has the the line between free speech and the academic freedom needed to put on such presentations without disruption been blurred beyond recognition? In coming to any conclusion it is important to keep in mind that UC-Irvine is a State University. This was a University sponsored event. Both the Federal 1st Amendment and the California 1st Amendment would therefore be in play.
While I disagree that there is no right to a heckler’s veto as an absolute, I am on the side of Erwin Chemerinsky, Dean of the UC Irvine School of Law in his editorial published in the L.A. Times and Professor Alan Dershowitz in his Huffington Post editorial. This was not spirited political debate in which a response was expected or allowed. It was coordinated censorship. What’s the point of academic freedom if it can not be exercised to the benefit of the student body to the same extent as the protesters would expect if someone they admired was speaking.
From a practical spectator standpoint, I would also be pissed as hell if I was sitting in that auditorium unable to hear because of obnoxious students. I don’t care if they are Muslims, Jews, Hindus or Hare-Krishna’s.They are ruining the experience I have a right to enjoy and engage if I so choose. Let’s be clear. This was a structured event. It was not a “free for all come-all” in a public square. Unlike a public square, the protesters got into the event to the exclusion of other protesters and spectators. That is not open free speech as if they were in the square and anyone could chime in. It implies rules of conduct and a level of respect and decorum.
I understand that free and unpopular speech does not always occur in convenient places. One of the the points of protest is to do it in a manner to make a point. As obnoxious as these kids were, that can not be brushed off. Free speech sparing is not always done by the Marquess Of Queensbury Rules. We can only protest if we are nice and polite? Were the framers always polite in their dissent of the crown? They never shouted down the King’s emissaries as they addressed the colonies on new taxes?
In the end, the video speaks for itself to the detriment of the motives of the yelling students. This was not a spirited debate. This was an attempt to silence by screaming. The epitome of verbal terrorism. It was an attempt to stifle the academic freedom rights of Ambassador Oren and other students on the same level they claim their rights were snuffed out. This was not a come all campus wide protest on the University Green. This was an invited speaker, organized event in which the attendees had a right of reasonable quiet enjoyment and Ambassador Oren had a right to retort to any protest. This was not an open public square available to all who want to shout down the shouters. The hecklers should have been escorted out.
The statute under which the hecklers were arrested reads as follows:
“Every person, who, without authority of law, willfully disturbs or breaks up any assembly or meeting that is not unlawful in its character, other than an assembly or meeting referred to in Section 302 of the Penal Code….. is guilty of a misdemeanor”
In Hill v. Colorado the court held that the First Amendment right to free speech was not violated by a Colorado law limiting protest, education, distribution of literature or counseling within eight feet of a person entering a health-care facility.
What this tells me is that the University and city can establish reasonable content neutral rules that prohibit acts that endanger the safety of the speaker or the other members of the audience. They however can not regulate based on the content of the speech. It does not end there. I take issue with the California statute as applied here. What does “disturb” or “break-up” mean? Would it even be possible to craft a jury instruction? There is an argument that these words as applied to the protesters are so vague as to be unenforceable and therefore unconstitutional as applied to the protesters.
In the end, I am glad the protesters were escorted out. I have the same right to listen that they have to be heard. They can be heard outside the event. They do not have the 1st amendment right to shout down to the exclusion of all others in the room. This is not a public square. I however am uncomfortable with any academic discipline or legal action against the protesters. They wrere not inciting either the speaker or the crowd to violence against the speaker or other members of the crowd. We should be arresting the dangerous, not the obnoxious.