a constitutional mini-rant
After one too many meta posts...
You are not entitled to absolute freedom of speech on the internet.
No, seriously. You are not. Just read the First Amendment, okay: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
First Amendment Law in a Nutshell (abbreviated)(very)
1. The First Amendment of the Constitution is an American document. It does not bind foreign actors. Yelling about free speech rights on Chinese blogs is like bitching at Iraqi Sunnis for violating Shiites' free exercise of religion. Many other developed nations have free speech and freedom of religion clauses in their governing documents, but they generally operate differently than they do in the US, and bitching about First Amendment rights in an international forum just makes you look parochial. Don't do it.
2. The First Amendment binds the government. Who is that? That's the federal government, the state of Michigan, Kay County, the town of Willows Grove, Cal State Hayward, the New York City Police Department, the Department of Defense.
The government cannot, without legitimate reasons supported by substantial government interests, punish you or prevent you from speaking, based on the content of that speech. (There's a huge pile of case law interpreting when and under what circumstances the government can limit speech. They absolutely can, but please believe me when I say it's complicated.)
Private entities such as Six Apart, Yahoo, AOL, the local newspaper, or your ISP are generally not restrained by the First Amendment.
3. Free speech is allowed in public forums, or semi-public forums (fora; take your pick). The plaza in front of City Hall; the streetcorner; the park; even the mall (sometimes). It is not an absolute right in a private forum such as a private dwelling, or a store, or email.
4. The press is protected from government interference except when substantial government interests are at stake. And not always then: the Supreme Court did not allow the federal government to prevent the Pentagon Papers from being published. The definition of "press" is under re-evaluation right now, given the rise of the internet, but under most circumstances the press must provide a service in the public interest. This would tend not to protect your right to publish pictures of bacon taped to your cat. (TM John Scalzi)
OMG too complicated! What's it all mean?
It means that LJ can restrict your content if they choose: they are a private entity and you signed a contract agreeing to their terms and even if LJ were a semi-public forum you would be bound by the contract.
It means that a moderator on TWOP can forbid you from using foul language or posting squee about dog-humping, if they choose to. Private actor, private forum: their rules.
It means that if your employer sees you posting to MeanBossesSuck.com about how much you hate your boss, and you think he's a moron and a jackhole, even if you're posting from home, they can still fire your ass. (Depending on your employment contract, but I work in an at-will state, so I'm screwed.)
It means that I can delete your comment in my LJ if I choose, because it's a private forum. I don't have to defend myself, I don't have to have a reason, or I can do it because I don't like your OTP or because you're from New Zealand and I hate your beer. [Note: this is not true: I love Kiwi beers.]
So, you folks screaming OMG Cenzorrred!!!Eleventy!!! when the community mod deletes your post because you just spoiled half the fandom?
To quote the immortal words of Frank Pembleton: Please don't be an idiot. Thank you.
ETA 30 May 2007, with regards to the WfI business:
ETA AGAIN 31 May 2007:
Six Apart/Livejournal is potentially on the hook for violations of the Child Online Protection Act: the penalties for this include fines of $50,000 per day (possibly per violation, I'd have to check the statutory language to be sure).
If they stop to evaluate which communities are actually advocating pedophilia and which are not, they run the risk of losing their common carrier status and becoming a publisher, which would open them up to COPA liability. Publishers are responsible for content; common carriers are not--it's the difference between the editorial board of your local newspaper and the guy who delivers it. 6A cannot afford to be the publisher of your underage Weasleycest, and given that you pay them all of $50/year for their services, you should not ask them to.
In the absence of a ruling on the liability associated with online fictional depictions of underage children having sex, I do not think 6A is overreacting (well, much) to the situation.
I have no idea exactly what made 6A decide to start deleting comms and journals now instead of previously, or the decision-making process that led to selecting clearly fictional journals for deletion. Apparently it has to do with legal liability, but in the absence of them stating what that was, I can't speak for them. Given that they are now choosing to reinstate the fictional journals, I'm less convinced that the argument above applies. Not being an internet lawyer, and all.
(Frankly, we should have expected this long since.)
And in any event, this is not a First Amendment issue because 6A is not a government entity and they are not acting under direction of a government entity.
End all edits.
*
Disclaimer: I am not, nor have I ever been, a constitutional scholar. Nor am I a (practicing) attorney. But there's an awful lot of splooge out there on the nets about censorship and whatnot, and I thought it might be helpful to provide a few pointers.
Yeah, no, I'm not cranky. Much. But at least I have the perfect icon.
ETA:
Anyone is perfectly free to link to this post. Please do not repost it in its entirety elsewhere, however, and please keep my name associated with it.
End edit.
You are not entitled to absolute freedom of speech on the internet.
No, seriously. You are not. Just read the First Amendment, okay: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
First Amendment Law in a Nutshell (abbreviated)(very)
1. The First Amendment of the Constitution is an American document. It does not bind foreign actors. Yelling about free speech rights on Chinese blogs is like bitching at Iraqi Sunnis for violating Shiites' free exercise of religion. Many other developed nations have free speech and freedom of religion clauses in their governing documents, but they generally operate differently than they do in the US, and bitching about First Amendment rights in an international forum just makes you look parochial. Don't do it.
2. The First Amendment binds the government. Who is that? That's the federal government, the state of Michigan, Kay County, the town of Willows Grove, Cal State Hayward, the New York City Police Department, the Department of Defense.
The government cannot, without legitimate reasons supported by substantial government interests, punish you or prevent you from speaking, based on the content of that speech. (There's a huge pile of case law interpreting when and under what circumstances the government can limit speech. They absolutely can, but please believe me when I say it's complicated.)
Private entities such as Six Apart, Yahoo, AOL, the local newspaper, or your ISP are generally not restrained by the First Amendment.
3. Free speech is allowed in public forums, or semi-public forums (fora; take your pick). The plaza in front of City Hall; the streetcorner; the park; even the mall (sometimes). It is not an absolute right in a private forum such as a private dwelling, or a store, or email.
4. The press is protected from government interference except when substantial government interests are at stake. And not always then: the Supreme Court did not allow the federal government to prevent the Pentagon Papers from being published. The definition of "press" is under re-evaluation right now, given the rise of the internet, but under most circumstances the press must provide a service in the public interest. This would tend not to protect your right to publish pictures of bacon taped to your cat. (TM John Scalzi)
OMG too complicated! What's it all mean?
It means that LJ can restrict your content if they choose: they are a private entity and you signed a contract agreeing to their terms and even if LJ were a semi-public forum you would be bound by the contract.
It means that a moderator on TWOP can forbid you from using foul language or posting squee about dog-humping, if they choose to. Private actor, private forum: their rules.
It means that if your employer sees you posting to MeanBossesSuck.com about how much you hate your boss, and you think he's a moron and a jackhole, even if you're posting from home, they can still fire your ass. (Depending on your employment contract, but I work in an at-will state, so I'm screwed.)
It means that I can delete your comment in my LJ if I choose, because it's a private forum. I don't have to defend myself, I don't have to have a reason, or I can do it because I don't like your OTP or because you're from New Zealand and I hate your beer. [Note: this is not true: I love Kiwi beers.]
So, you folks screaming OMG Cenzorrred!!!Eleventy!!! when the community mod deletes your post because you just spoiled half the fandom?
To quote the immortal words of Frank Pembleton: Please don't be an idiot. Thank you.
ETA 30 May 2007, with regards to the WfI business:
ETA AGAIN 31 May 2007:
Six Apart/Livejournal is potentially on the hook for violations of the Child Online Protection Act: the penalties for this include fines of $50,000 per day (possibly per violation, I'd have to check the statutory language to be sure).
If they stop to evaluate which communities are actually advocating pedophilia and which are not, they run the risk of losing their common carrier status and becoming a publisher, which would open them up to COPA liability. Publishers are responsible for content; common carriers are not--it's the difference between the editorial board of your local newspaper and the guy who delivers it. 6A cannot afford to be the publisher of your underage Weasleycest, and given that you pay them all of $50/year for their services, you should not ask them to.
In the absence of a ruling on the liability associated with online fictional depictions of underage children having sex, I do not think 6A is overreacting (well, much) to the situation.
I have no idea exactly what made 6A decide to start deleting comms and journals now instead of previously, or the decision-making process that led to selecting clearly fictional journals for deletion. Apparently it has to do with legal liability, but in the absence of them stating what that was, I can't speak for them. Given that they are now choosing to reinstate the fictional journals, I'm less convinced that the argument above applies. Not being an internet lawyer, and all.
(Frankly, we should have expected this long since.)
And in any event, this is not a First Amendment issue because 6A is not a government entity and they are not acting under direction of a government entity.
End all edits.
*
Disclaimer: I am not, nor have I ever been, a constitutional scholar. Nor am I a (practicing) attorney. But there's an awful lot of splooge out there on the nets about censorship and whatnot, and I thought it might be helpful to provide a few pointers.
Yeah, no, I'm not cranky. Much. But at least I have the perfect icon.
ETA:
Anyone is perfectly free to link to this post. Please do not repost it in its entirety elsewhere, however, and please keep my name associated with it.
End edit.