Wednesday, September 10, 2008

COPA and implicit content: it's going to take real effort to keep "asymmetric" free speech protected

This is a note today just to rehearse the idea that remaining committed to free speech takes real effort.

The Internet has opened up the idea of “asymmetric speech” where one individual can reach a large audience without “permission”. We’ve seen this in business (with the launching of companies like Facebook), but it is also true of speech itself.

The possibility is disorienting in some ways. As we know from the COPA trial, parents have to deal with the possibility that their kids will find “objectionable” material online, sometimes posted by individuals who have not “taken the dive” to have children themselves. Parents have to learn how to use filters and the near accountability software and even content labeling, techniques which do work. Parents (along with schools) have to teach their kids safe Internet use in a way comparable to teaching safe operation of an automobile. (Oh, yes, remember folks, Smallville Season 1 shows the gifted Clark Kent driving a car or truck at the legal age of 14; he also surfs the Internet.)

There is another problem, more subtle, that is emerging. That’s “implicit content.” The issue got mentioned in passing at least once from the bench during the COPA trial. Potentially, the concept means that a speaker could be held (criminally or in tort law) responsible for how another party (“the reader”) interprets is “intent” according to the socialization norms of the reader rather than the context intended by the speaker. One particularly troubling way this problem occurs is that the speaker presents himself as "vulnerable" according to the social (or even professional) norms of others but not of his own. Generally, in the United States, this sort of idea is supposed to be invoked only when there is a threat of “eminent lawless action.” (That may be less true overseas, as in Britain.) Recently, and especially in the past two or three years (as social networking sites became the norm), the major media has been representing the notion of “documenting one’s life online” as inherently dangerous to the self and to others – especially the family, and school. In fact, public school administrators are particularly concerned about this problem, partly as a result of a few sensational tragedies but also because of the way the major media outlets cast the problem. Public school principals and high school history teachers are generally not informed on the intricate theories on applying the First Amendment the way young lawyers are in urban happy hours. And they have real practical problems, related to the unequal incomes and circumstantial opportunities of their “customers” (the kids and their parents). It doesn’t help when a major US publisher refuses to publish a well-written controversial book because of perceived “threats” (there have been several other such problems around the world, mostly in Europe and Britain), and when the legal system invites subtle abuses (like “libel tourism”) among those who would subvert free speech for their own religious or political agendas. Protecting free speech from these more subtle threats is going to take real effort. Free speech (including free "meta-speech") remains an important fundamental right even when the "existential purpose" of the speech seems troubling to some people.

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