Concluding Thoughts On The Semester

This class proved to be as thought provoking as I imagined it would be.  Two things surprised me:

First - as adult citizens, we have an incredible amount of freedom when it comes to the First Amendment.  We are free to speak our mind with very few limits.  We can defame others, or incite violence, but, relatively speaking, anything else goes.

Second - For as much freedom as we have on the Internet, it could be gone in a heartbeat.  What concerns me the most about the First Amendment in the Digital Age for the future is the vast amount of discretion the private ISP's have.  If these companies wanted, they could severely curtail our freedom of speech.

This is certainly an interesting dichotomy.  It is my hope that we take action to ensure the Internet remains a protected forum for the free expression of speech.

".xxx" Domain Name Approved

On March 18th, the ICANN (the organization that manages domain names) approved the new .xxx domain name.  Starting this summer, the ICM will begin selling the domain name to adult entertainment companies. In other words, playboy.com will be able to create a new website called playboy.xxx.

At this point, the domain name is completely voluntary.  Some, however, fear that the domain name might become mandatory.  Surprisingly, both religious conservative groups and pornography distributors are in agreement against the new domain name.  Religious groups worry the new domain name will legitimize adult entertainment.  Pornographers worry their content will be easily blocked and filtered by other governments, and private organizations.

This new domain name was the focus on my paper.  I essentially argue the new domain name is a bad idea, and any attempt to make the domain mandatory would violate the First Amendment.  The domain name would only apply to pornographers, and therefore would not be content-neutral.  As such, because the regulation would be content-based, it would not survive strict scrutiny.

House Republicans Pass Bill To Repeal Rules On Net Neutrality

On April 11th, House Republicans passed a bill to repeal the rules set forth by the FCC regulating Net Neutrality.  The Republicans argued the FCC lacked authority to promulgate the rules regarding Net Neutrality.  According this article, the vote passed in the House largely among party lines.  The Senate is not expected to pass the bill.

Also challenging the FCC regulation has been Verizon.  In fact, most of the large ISP's would prefer not to be regulated.  As we've discussed in class, this seems to be an instance where a little regulation would ensure a lot of freedom for users.  I've come to the conclusion that, although currently provided by private companies, the Internet is a public resource, which should be regulated in a manner which benefits the public as much as possible.

By ensuring users can access all content without discrimination, the FCC can ensure all users are able to enjoy the Internet for whatever purpose they see fit.

Leahy: 1st Amendment Protects Speech, Not Theft

Senator Leahy has announced he will be introducing a new bill to combat online piracy.  According to this article, he stated, "There's no First Amendment right that protects thieves. It protects speech." 


Now, at the start of the article, I pretty much agreed with Leahy's sentiment.  Despite growing up at a time when free music and videos was pretty much the norm, I can't articulate any reasonable argument that would support the piracy of copyrighted content.

Then, I read that one of the supporters of the bill was Major League Baseball (MLB).  For those who are familiar with YouTube, you may be aware that the MLB, and especially the NFL, attempt to keep their content off the site.  On the other hand, the NBA has it's own NBA channel, and actually encourages its content being posted.

In contrast to music, TV shows, or movies, there is a very small market for replays of sporting events that occurred a decade ago.  In other words, people buy CD's and DVD's that were released ten years ago; they don't pay for old sports footage.

Yet, the MLB and NFL don't want their content posted.  While this is less of a 1st Amendment argument than a good business argument, it makes little sense to suppress the dissemination of content, even if protected by copyright, if it promotes your own sport.

The Need for Privacy Reform Online

It has become clear to me, as a result of the past two readings, that there does not exist any sufficient protection for the privacy of internet users.  The privacy torts, e.g. invasion of privacy, public disclosure of private facts, false light, and defamation, are of no use to most users who fear their browsing history or other personal information may be sold or given to other public companies.  This is because the user herself publishes the information to the ISP or private website. 

Moreover, the Electronic Communications Privacy Act, the ECPA, also fails to protect users, because of its exceptions based on consent.  Additionally, the ECPA only protects content.  

Private companies, websites, and ISP's will not self-regulate themselves in a manner that will adequately protect users.  There is an enormous market for private user information.  This is one particular instance where government regulation protecting user privacy would actually protect free speech and privacy interests. 

Value of Online Anonymity

My first post of the semester questioned the social value of the ability to remain anonymous online.  Pointing to the dangers of hate speech, defamation, and copyright violation, some argue that we should have as must anonymity on the world web as we have in the "real world."  In other words, by making a statement in class or on the street, I am also making my identity known.  It follows that the same result should occur online.  Previous to this week's reading, I actually found myself somewhat persuaded by this line of thinking.

However, I have since been converted to the other side.  American history in particular has shown that anonymous speech can be extremely important to the democratic process.  If we don't provide an avenue for the expression of ideas that may be unpopular, this may result in the "chilling" of speech that the Supreme Court has so disfavored.  In other words, it is important to be able to express feelings and viewpoints without fear of social alienation, or other similar repercussions. Recognizing the danger that this lack of accountability poses, we can balance the need for insulated speech against hate speech and defamation by permitting courts to compel identification of parties in limited circumstances.

End The Analogies: The Internet Is What We Make It

When a court is faced with a new set of facts, or a situation it has not encountered before, there is a logical tendency for the court to analogize the new scenario with previous ones.  Thus, after a court announces a rule concerning search and seizure of a person’s home, it may in its next case make an analogy that an automobile should have at least some sort of protection as well.

While analogizing and distinguishing from previous principles has been a method relied on since the emergence of the common law, this method of jurisprudence fails when it comes to addressing the Internet in almost every facet. 

Let’s face it:  the Internet is not a telegraph.  It’s not a telephone.  It’s not a newspaper.  The Internet as a medium is something completely unique, which humanity has never encountered before.  The Internet can be used in almost an infinite number of ways.  Yes, it can be used as a news source, but it can also be entertainment, or a means of transferring neutral content.

As such, I believe going forward, when addressed with the plethora of legal issues that arise with both the 1st Amendment and net neutrality, we simply have go forth with the notion that the Internet is what we make it.  If we want the Internet to continue to be an implicitly democratic medium, in which all participants are able to participate and interact, then we need to be prepared to oppose regulations and attempts by private actors that would chip away at this principle. 

Let’s stop pretending that ISP’s are “like” phone companies, or that a blogger is “like” a newspaper reporter. Let’s face the reality that it is up to us, as citizens, and as members of a community, to make the Internet an embodiment of liberal and democratic ideals, and to move forth with the notion that we can become better off because of it.  

Free Market versus Free Speech

To what extent are we comfortable mandating private companies (ISP's) to ensure equal access to all content providers?  The tension between an ISP's choice to provide premium services to preferred customers and providers and each content provider's 1st Amendment interest in publishing speech that all subscribers can access was explored in this weeks reading.

On the one hand, it seems that a private company should be able to provide premium services to paying customers, whether it be the typical subscriber deciding to upgrade to a higher bandwidth, or a content provider paying more for their website to be accessed more easily.  On the other, part of the great appeal of the web is the fact that everyone is able to publish easily accessible content.

The question raised by Frieden, which I think helps elucidate this issue, is to ask: to what extent are ISP's simply a service provider, and to what extent are they content providers whose decisions regarding private enterprise should be respected?  Frieden's conclusion is persuasive, because he makes a pretty fair argument.  ISPs should be considered one or the other, instead of being permitted to choose between the two to suit their own convenience.

Protecting Minors: Parents First, Regulation Second.

Following my blog from two weeks ago advocating education over censorship, I would like to posit this week that it is a superior policy position to rely on parental guidance and supervision instead of legislation to protect minors from obscene, indecent, or sexually explicit materials. 

Both of Congress’s attempts to protect children from pornographic material on the Internet, the Communications Decency Act of 1996 (CDA), and the Child Online Protect Act were struck by the United States Supreme Court based on First Amendment grounds.  Both attempts at regulation proved to be overbroad, and ultimately would have been rendered ineffective.

Rather than rely on statutes, which may prove to be almost impossible to draft in a constitutional manner, we should rely on parents, guardians, and other supervisors of minors to ensure that minors utilize the Internet in a safe manner.  The affirmative defenses to violations of the statute, e.g. the good faith effort to ensure minors don’t see the sexually explicit material, ultimately are unworkable.  Like most aspects of life, children and teenagers can find ways around credit card or registration requirements to access adult material. The onus is ultimately not on the State to protect the minors’ interests, but the minors’ parents or guardians.  

Prior Restraint, Egypt, and the "Internet Kill-Switch"

This week seemed to provide a perfect storm of sorts that aligned the reading with current events.  Specifically, I would point to the current social unrest and potential revolution in Egypt.  Of note for our purposes is the fact that it appears that large portions of the internet have been "shut down" by the Egyptian government.  This act has been condemned by many American citizens, as well as American politicians.  Ironically, a bill has been introduced in the Senate that would grant the U.S. president similar authority to shut down the internet on our own soil in the event of a "cyber attack."  This is known as the "Internet Kill Switch."

The details of the bill are not as blunt as my own summary, but critics of the bill argue that granting the President this type of authority could well lead to large portions of the internet being unavailable for use.  You can track the bill here.

As we gleaned from the cases on the Pentagon Papers, prior restraint is generally unfavored by the courts.  However, in times of war, in narrow circumstances, newspapers may be prohibited from publishing certain information that may endanger troops or help the enemy.  One commentator noted that with the proliferation of the internet and other modes of communication, prior restraint itself may be impossible.  However, with a tool like an internet blackout, it certainly seems that it would be possible to prohibit websites from publishing information deemed a threat to national security.

Education, Not Censorship

Hate speech on the internet is an extremely controversial subject in the realm of free speech.  Assuming, for the sake of argument, that we are dealing with hate speech that does not rise to the level of incitement or threats, I would posit that the best remedy for a pluralistic democracy to deal with such speech is to place a larger importance on education and critical thinking, rather than engage in any form of online censorship.

As mentioned in the text, the internet provides a medium for people who would otherwise be marginalized in everyday society to share their anti-social ideas and arguments.  This, obviously, can be a double-edged sword.  For young adults who feel they don't conform to the norms of their peers, such an outlet seems to be quite therapeutic, and seems to decrease the feeling of isolation.  On the other hand, the internet also provides a forum for racist and homophobic groups.

To maintain our liberal society, it seems to be the best method by which to protect young minds from being absorbed by online hate speech is to make sure they are well educated.  By continuing to teach the terrors of the holocaust, young people see what happens when anti-semtic rhetoric transforms into state action.  By educating the youth about hate crimes, students are able to see that ideas can turn into violent acts.  By providing students with critical thinking skills, students will be able to weigh arguments, and decide for themselves what type of political speech is most persuasive.

The Ring of Gyges and Online Anonymity

For my first blog of the semester, I'm keeping it pretty general, but hope to return to the following theme at later dates. 


In Book II of Plato's Republic, Plato uses the allegory of the ring of Gyges as a tool to discuss whether a person would remain virtuous if he did not have to fear the social consequences of his actions.  Whoever wears the ring has the power to become invisible at will (think Frodo in The Lord of the Rings).  Glaucon, one of Plato's interlocutors, argues that people only act justly because of the social pressure to do so.  Given the power the ring grants, "No man would keep his hands off what was not his own when he could safely take what he liked out of the market, or go into houses and lie with any one at his pleasure, or kill or release from prison whom he would, and in all respects be like a god among men."


Now, Plato happens to have a different conception of justice than his character Glaucon.  For Plato, justice is an intrinsic good, not a social construction developed on consensus.  But, the point for this blog is simply the power of anonymity, and what effect it has on a person's behavior.  Chat rooms, message boards, and other online platforms grant users the ability to speak freely, without disclosing the user's name or identity.  In other words, every time a person logs on, he activates his ring of Gyges. 


The power of anonymity can be a very important political tool.  People are able to speak freely, to criticize the government or advocate change, without fear of reprisal.  On the other hand, I think many of us have seen how extreme speech can be online when the speaker doesn't have to worry about those words being attached to the speaker in "real life."