Monday, August 8, 2011

Candice Lanier - The Erosion of Free Speech on the Internet

According to the Electronic Frontier Foundation (EFF), a vaguely worded anti-stalking law poses a serious threat to freedom of speech online.  The EFF specifically cites a case involving the popular microblogging platform, Twitter:

EFF filed a friend-of-the-court brief today urging a federal court to block the government’s use of the federal anti-stalking law to prosecute a man for posting criticism of a public figure to Twitter.

At issue is a federal law originally enacted to criminalize traveling across state lines for the purpose of stalking. In 2005, the law was modified to make the “intentional infliction of emotional distress” by the use of “any interactive computer service” a crime. In this case, the government has presented the novel and dangerous theory that the use of a public communication service like Twitter to criticize a well-known individual can result in criminal liability based on the personal sensibilities of the person being criticized.

“Wielding the threat of criminal sanctions to punish the pointed, online criticism of public figures is not only bad policy, it is unconstitutional,” said EFF Senior Staff Attorney Matt Zimmerman. “While true threats can and should be opposed, public speech about prominent people must be vigorously protected.”

Anti-stalking legislation in California is similarly vague and can restrict any “annoying, embarrassing communications” leveled against an individual.   What’s more, across the country other legislation, such as this, is being drafted – at an alarmingly rapid rate.  Those laws which can be viewed broadly can severely restrict the rights of those who seek to express themselves online.

New cyberstalking law challenged over ‘annoy’ language
By David L. Hudson Jr. Arizona anonymous e-mail company contends little-noticed provision criminalizes much protected speech. 02.24.06

Mo. lawmakers vote to bar Internet harassment
Governor praises new cyberstalking law, a response to suicide of state teen who was teased online. 05.19.08
Mo. woman pleads not guilty to charges related to MySpace suicide
Experts say case could break new legal ground; statute used to indict Lori Drew usually applies to Internet hackers who illegally access accounts to get information. 06.17.08

Mo. governor signs anti-cyberbullying bill into law
Teen’s suicide prompts state to outlaw Internet harassment; girl’s mother says even more needs to be done to keep kids safe online. 07.01.08

E-mails sent to Va. Tech students were true threats
By David L. Hudson Jr. 4th Circuit panel says any ordinary, reasonable person would have understood Johnmarlo B. Napa’s messages as threats. 03.23.10

Anti-stalking legislation is not, by any means, the only threat to Internet free speech.   Successful social networking site, Facebook and its new competitor, Google+ both require that users use their real names.  Failure to comply can result in account deactivation.

Numerous reasons exist as to why some opt to use a pseudonym instead of a real name.  Some of those reasons are detailed at Liberty Voice:

They may be concerned about threats to their lives or livelihoods, or they may risk political or economic retribution. They may wish to prevent discrimination or they may use a name that’s easier to pronounce or spell in a given culture.

Longtime online inhabitants may have handles that have spanned over twenty years.
As Supreme Court Justice John Paul Stevens put forth in deciding McIntyre v. Ohio Elections Comm’n 514 U.S. 334, 357 (1995),

“Anonymity is a shield from the tyranny of the majority. It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation—and their ideas from suppression—at the hand of an intolerant society. The right to remain anonymous may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse.”

  • harassment, both online and offline
  • discrimination in employment, provision of services, etc.
  • actual physical danger of bullying, hate crime, etc.
  • arrest, imprisonment, or execution in some jurisdictions
  • economic harm such as job loss, loss of professional reputation, reduction of job opportunity, etc.
  • social costs of not being able to interact with friends and colleagues
  • possible (temporary) loss of access to their data if their account is suspended or terminated
Another addition to the menacing forces against free speech is the new legislation in Tennessee which bans images that may cause “emotional distress.”   Indeed,  according to  The Washington Independent, “Tennessee Governor Bill Haslam signed a bill into law that criminalizes ‘transmitting or displaying’ any image that under a ‘reasonable expectation’ might ‘frighten, intimidate or cause emotional distress’ to anyone who sees it. This is not limited only to images posted on the internet, but also includes TV and any other “electronic communications service” currently in existence.

In a nutshell, the law allows anyone to go after anyone – journalists, bloggers, users of social media – who will potentially face jail for up to a year or a fine of up to $2,500,  just for sharing a picture or other image.

Apparently, some people really can’t handle the truth…

Legal scholar, Eugene Volokh regards the law as “clearly unconstitutional.”  He states:

So the law now applies not just to one-to-one communication, but to people’s posting images on their own Facebook pages, on their Web sites, and in other places if (1) they are acting “without legitimate purpose,” (2) they cause emotional distress, and (3) they intend to cause emotional distress or know or reasonably should know that their action will cause emotional distress to a similarly situated person of reasonable sensibilities. So,

  • If you’re posting a picture of someone in an embarrassing situation — not at all limited to, say, sexually themed pictures or illegally taken pictures — you’re likely a criminal unless the prosecutor, judge, or jury concludes that you had a “legitimate purpose.”
  • Likewise, if you post an image intended to distress some religious, political, ethnic, racial, etc. group, you too can be sent to jail if governments decisionmaker thinks your purpose wasn’t “legitimate.” Nothing in the law requires that the picture be of the “victim,” only that it be distressing to the “victim.”
  • The same is true even if you didn’t intend to distress those people, but reasonably should have known that the material — say, pictures of Mohammed, or blasphemous jokes about Jesus Christ, or harsh cartoon insults of some political group — would “cause emotional distress to a similarly situated person of reasonable sensibilities.”
  • And of course the same would apply if a newspaper or TV station posts embarrassing pictures or blasphemous images on its site.
In other censorship news, a blogger on Twitter found out first-hand what the erosion of free speech feels like.    According to Jonathan Sangster, who goes by the name @TORARADICAL on Twitter, his account was suspended for several days without explanation.   It was finally explained to him, by Twitter, that a government agency had requested they suspend his account so that it could be investigated for suspicious activity.

I have read content on Sangster’s blog – none of which would arouse suspicion from a clear thinking, lucid individual.   Sangster was merely exercising a constitutional right.   These incidents represent an obvious threat to one of our most precious civil liberties.