A deal like this - for an unspecified amount, and to a foreign media company whose investor is rumored to be Putin-friendly in a country already known for its censorship - recalls to mind that free speech rights are not international. Nor are they guaranteed when an American private company controls the content delivery method.
In America, free speech is most protected in public places. The courts have said over the years that the maximum protection to the right to free speech is given in these public forums, such as sidewalks, parks, and streets. However, absolute free speech protection is not a right on private property - some storefronts, for example. Each state differs in its definition of which malls are public places and which are private.
The internet isn't really a place. And it can certainly be argued that LiveJournal is a private business; one that puts substantial resources into providing the service, the storage space, the servers, etc. that allow users to express their opinions.
But it can also be argued that the free blog site is absolutely a public forum for expression, where assembly and discussion take place daily. Perhaps it is a sort of virtual "central park," with sidewalks freely available to all, and an irreplaceable service to the people who use it every day.
LJ has a long Terms of Service document that says "LiveJournal will generally not place a limit on the type or appropriateness of user content within journals," then goes on to list many limits on that content. Under the ToS, an account can be suspended or deactivated for posting anything that is copyrighted, harmful, indecent, pornographic, unlawful, vulgar, hateful, threatening, advertising, invading of someone's privacy, and more.
LJ also has what it calls an "Abuse team," which investigates blogs that are reported as being inappropriate. It has chosen to take an active role in monitoring and removing content that violates its ToS.
In May this year, LJ stirred a controversy by suspending about 500 accounts that were mostly fan fiction that may have included words like "incest" or "rape." Later, LJ apologized for shutting down the accounts and reinstated about half of them. In August LJ clarified that harmful content was:
Content that encourages or advocates hate crimes, the abuse of children in any form, or rape, even if the content itself is not illegal and may be protected by the First Amendment. This portion of the policy reflects the especially reprehensible nature of these activities; users who encourage or advocate these acts, regardless of their motivation, are simply not welcome on LiveJournal.Freedom of speech gives the unpopular speech an equal right to exist in public space. But if a large blogging company is deemed private space, what on the internet is actually deemed public? So many of the ways content is shared are owned by private companies - YouTube, MySpace, Blogger, Facebook... There are internet service providers who provide Web site hosting services. Could those sites be also considered private space? Can any site be considered public?
The problem may lie in the fact that it takes resources to run a Web site, and understandably, those should be protected. But it costs money to keep a street or park maintained and functioning as a public place. Taxes collectively pay for those. It could be that, to provide a public space free of private speech restrictions, America will need to allocate resources to that end.
However it's done, commercial interests should not be allowed to trample completely on free speech rights that are so intrinsically important to the Internet, and to the country. Suspension of 500 accounts by LJ (or by any other blogging Web site) is a small number, but is still a number of people whose free speech rights might be getting trampled. It's for those few that the First Amendment exists at all.
3 comments:
Interesting issues raised here about the concept of free speech in the electronic age.
Trying using a bullhorn on the CSUS campus and see how long it is before the campus police haul you off.
It is murky, this whole thing. Similarly, malls are not public in the classic sense - visitors are on private property.
Perhaps the only saving grace is that the Internet is soooo huge and there are so many access points (in and out) that is very difficult for any entity to control.
Whoops, forgot about Google...
Good column, made me start thinking so much my head hurts.
Is this paper arguing that a private company can create a public forum, such that users may not be censored and must be permitted to enjoy the same fundamental liberties protected in the Bill of Rights?
When a government creates a public forum, it maintains and financially supports the forum and still the government cannot censor the behavior of those who use it. Are we arguing that when a private entity creates a forum that is generally meant for, and has a history of, public use, therefore that private entity has created a public forum and cannot censor those who use it? Must it maintain and pay for something while it cannot censor those who use it?
I think the critical difference between the government and a private entity here is that the government's money comes from the public's pocket, while a private entity's money comes from its own pockets. Therefore, the public pays for the government to maintain a public forum, but a private company does this at its own expense.
I am very interested in learning a way to defeat this argument and argue that a private company can create a public forum which it cannot censor anymore than the government can censor one. Please let me know if you have material on this.
Respect,
Martin
"All of us, from the wealthiest and most powerful of men, to the weakest and hungriest of children, share one precious possession: the name American" ~ RFK
Martin,
Apologies for responding to this so late. I really need to turn comment notification on. It seems your profile is not public, so I'm unable to respond to you on your blog.
I doubt very much that in this case there is a way to forbid a company from inhibiting free speech on its own site. The big reason? It takes resources to maintain the server space to host a page - especially a popular one.
In California, sidewalks in front of supermarkets are considered public space, and stores can do nothing about solicitors camping in front of their doors. Malls, however, are private space. That private property takes money and effort to maintain, and therefore, the owners have a right to protect that space as they see fit.
I myself would never advocate that a corporation be forced into the role of providing a public forum. (Sure would be nice of them to volunteer, but they don't want to be held legally responsible for illegal postings!) I do mourn the lack of public forum on a medium that was built on principals of free information. Perhaps the only way to be fair is to pay taxes to the government so it can hire a company to provide a free speech forum.
Short of that, protecting net neutrality is one step closer to preserving free speech on the Internet. If you haven't researched Net Neutrality, I recommend reading Natalie's post about it: http://ncsmith.blogspot.com/
Thanks again for reading/commenting.
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