Democrats Free Speech Power Grab: Is Your Blog a Press or a Public Accommodation?

By Dave Wieneke | in Free speech / censorship | 9 Jan 2011 | 4 Comments

If you follow my tweet stream, you may have noticed a conversation I had with Emer Kirrane, @Exxx, about how online culture encourages youthful indiscretion along with outrageously bad behavior. (And why my kids won’t be on social networks until they’re old enough to take Facebook, and the Net, with some skepticism.)

Emer pointed out there’s a cultural confusion between “attention and approval.”  When infamy, celebrity and virtue are confused, outrageousness becomes cultural currently.

That’s why I took note today when the unabashedly liberal Boston Globe ran an Ideas feature on the book The Offensive Internet. It highlighted a thesis of its chapter by Cass Sunstein,  the head of President Obama’s Office of Information and Regulatory Affairs.  In it, he poses that that public discourse needs greater “chilling effects” of regulation and social pressure.

“The goal of the law governing speech must be to ensure an optimum level of chill, whether face-to-face or online.”

The article suggests that the free-speech safe harbor enjoyed in social media is overly broad, by pointing out that graffiti on a public bathroom walls would enjoy less protection than if it were a posting on a website.

As Speech, Online Speech Is Subject to Law
Let’s be clear: I’m all for social pressure to be decent and “get it right.”  But online speech is already regulated through established law. Trademark, copyright, plagiarism, incitement, bribery, and a host of other laws are fully in force. In fact, online defamation has been stretched to a level of absurdity unparalleled in the physical world.

The call for “chilling effects” on speech by government regulation should be fighting words for speech advocates. (If you agree, you might want to follow the blog Chilling Effects, a joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, University of San Francisco, University of Maine, George Washington School of Law, and Santa Clara University School of Law clinics, to preserve free online speech.)

Your Blog is Not a Public Accommodation, Its a Press
The use of the analogy of graffiti in a public restroom is the foundation of a liberal claim (and regulatory power grab) that online spaces and the Internet as a whole are public accommodations. If accepted, just as that bar’s bathrooms must be accessible, free of offensive graffiti, open to all groups,  then the website on your private server must be too.

But pour right to privacy and self-determination is infinitely higher within the walls of your private home or enterprise. So attempts to establish websites as “public accommodations” would diminish your speech rights in these “public spaces.” Yet people using their private computers to access private servers over commercial networks are just as private as if the communication was by phone or teleconference. In many cases they are using the exact same infrastructure.

The metaphor we choose for online activity to some degree chooses which legal principals are most relevant. I’d suggest that it is much more obvious that every computer and server I’ve ever owned have been infrastructure for communication, often from one to many. This is closer to a press than a place. The rights of private owners to operate presses (singly or in virtual communities) seems obviously protected by the first amendment.

Liberalism and Free Speech Too Often Part Ways
Not long ago, Democrats in the Senate proposed a lobbying reform bill that would have required bloggers who communicate to more than 500 members of the public on public policy matters to register and report quarterly to Congress, in much the same way as K Street lobbyists.  This post would conceivably have made me a lobbyist, and require my self-expression to be registered and approved by the state.

Since the State Can’t Handle the Power of Chilling Speech, We Must Govern Each Other
There is a hunger in government to control the Internet, and the often-anonymous widespread communication it allows. And each time free speech has a negative consequence, the case for regulating the Net and speech increases.

If regulation invites censorship and state control of private expression, then what can be done about objectionable online conduct?  Start by objecting, and make it count.  And start to require the private platforms that we use to disengage from value neutrality.

We may, in fact, be in a better position to petition publishers and platforms such as Facebook, Yahoo and Google than federal regulators.  Plenty of you have joined me in occasional efforts to do just this here on this blog.

We need to stand up to potentially well-meaning (or self-serving) regulators. The pursuit of happiness, however it is defined, and free speech are now inexorably linked in the creative economy. And its protection almost certainly will require us to hold back the hand of government from fixing the problems of free speech. As long as free speech is abused, we know it is there.