Towards a More Civil Internet Society

Part 1

“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 to the U.S. Constitution

“Congress shall make no law…” Thus begins the First Amendment to the U.S. Constitution.  The key word is “Congress.”  Throughout the Constitution’s long history the protections enumerated in the First Amendment were protections from Congress, not individuals.  In discussions about free speech and the Internet, the speakers/writers sometimes forget that salient point.  Individuals may say almost anything under the banner of free speech, which can be very frustrating for the targets of that speech.  Only Congress, and by extension state and local government, is prohibited from restraining speech.  What does this mean for the Internet?  In America it means that there is almost nothing under the sun that can be kept off the Internet.  It goes beyond a vigorous discussion of ideas.  Content and speech of all sorts, unless it is libel, slander, defamatory, or explicitly threatening, is allowed as much latitude as we care to give it.  As a consequence the Internet can be a messy, dangerous place.  Hidden behind their keyboards, people say things on the Internet that they would never say in public.  The consequences for a civil society should not be ignored.  This essay is focused on the American branch of the Internet and proposes that we must maintain our dedication to the principles that America was founded on.  At the same time, we must recognize the conflicts that arise in protecting those principles.  Finally, we must empower ourselves to act on behalf of civil behavior on the Internet.  We cannot, and should not, rely on government intervention.

How free is free speech on the American branch of the Internet?  If you are the Westboro Baptist Church of Topeka, Kansas you can run a website that is clearly anti-gay and includes a page devoted to Matthew Shepard burning in hell.  The ACLU and Electronic Frontier Foundation will stand up for free speech, and Chilling Effects provides resource information to protect website and message board operators, and their visitors from harassment by those who would try to muzzle speech.  Pornography is perhaps more visible on the web than it is on the street, as is its opponents.  The appearance of weblogs (blogs) has created new forums for the discussion of ideas and dissemination of opinion.  Anyone can buy a domain name and use it to promote ideas, products, or both.  There seems to be no limit.  Free speech in America seems to have taken on a whole new life with the Internet.  Content, whether good, bad or indifferent is to be found with a mouse click.  Should we allow such latitude?  Why wouldn’t we?

Americans generally consider adults capable of making their own decisions about what they want to read, buy, listen to, or participate in.  Regulating content raises the obvious question: whose content shall we regulate and how would we do it?  Americans can openly criticize our government and speak the unspeakable about any group, no matter how painful it may be.  Does anyone remember the Skokie case?  Other countries can, and do, implement restrictions, even on content Americans might not consider important.  French groups brought a lawsuit against Yahoo regarding Nazi memorabilia being sold at auction on one of Yahoo’s sites in America.  They insist that Yahoo block French citizens seeking access to the auctions of artifacts associated with war crimes.  Recently China lifted internal blocks to American, and other, news sites. The Canadian Charter of Rights and Freedoms begins by supporting free speech but inserts a caveat not found in the U.S. Constitution: "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."   We are not told how the limits will be justified, or what constitutes reasonable.  In 2000 the Internet Watch Foundation (a U.K. industry body) notified its members of the intent to identify and remove racist content from web sites, even if it has not been identified as criminal[i].  

In America, such actions would be construed as restraint of speech, which has been declared unconstitutional many times.  We cannot silence the groups that are anti-whatever we are for.  It is a given that there are any number of subjects that people find offensive for any number of reasons.  Many people find a platform on the Internet that allows them to lobby for issues they support and against the issues or groups that they find offensive.  Which ones do we keep and which ones do we ban?

I would say that we must leave the content alone.  No matter how abusive, disgusting, boring, or obnoxious a site may be it is a testimonial to a version of reality.  To ban content because it is painful, or is offensive to some people, or considered dangerous is to deny human experience and create an illusion.  Denial will not make unpleasant realities go away or bring their downfall.  The Holocaust was real as is the language Mark Twain used in Tom Sawyer and Huckleberry Finn.  The Pentagon Papers and Watergate scandals were real.  There are those who deny the Holocaust as a lie, would ban Mark Twain’s books for containing racist speech, and attempted to cover up the Pentagon Papers and Watergate to protect government officials.  When we try to limit speech we are also attempting to limit or direct thought to a preferred end.  Attractive as that may sound to some, it denies our very capability to exercise our intellect and free will.  Instead of thinking and reflecting on our options, and then making the choice for ourselves, we would become children waiting for the omniscient ‘parent’ to guide us.  To whom would we delegate authority over what we see or hear?  Who would we trust with such power?  Whose version of reality becomes the accepted version?  Who regulates the regulators?

But there is another aspect to the Internet to be examined in this discussion.  The First Amendment bars the government from limiting the exercise of speech.  It does not bar individuals from limiting speech or from allowing it to proliferate. The proliferation of chat rooms and message boards provide endless opportunities for individuals to meet and talk about whatever is uppermost in their minds.  It can be speculation over the preferred underwear of an athlete, a serious discussion about care giving for Alzheimer’s patients, or as frightening as a pedophile trolling for his (or her) next victim.  Hackers meet to discuss their latest exploits.  Lonely hearts meet even lonelier ones.  On top of that, the Internet provides anonymity.  Anonymity is useful for the whistleblower who may suffer retaliation if their identity is revealed.  Do you recall Deep Throat?  You can post in most places with a pseudonym and never reveal who you really are.  Anonymous posters are found everywhere and they don’t always have nice things to say.

Yet exceptions apply here.  The laws against libel and defamation are intended to provide relief for those whose reputation has been so impugned as to cause actual harm.  Trademark and copyright law apply to the Internet and protect the economic interests of the holders of the marks and rights.  Threats to life and limb may be warnings of real criminal intent.  These are the major limitations I am aware of, and are not new laws, but an extension to the Internet of current law.  The challenge is balancing the principle of free speech with the right of aggrieved parties to obtain justice when such transgressions occur.  On the one hand we have companies that sue for the purpose of silencing critics, leading to anti-SLAPP (Strategic Lawsuit Against Public Participation) laws that limit the right to sue.  There are also the protections enumerated in Section 230 for ISPs and web site operators/owners.  Plaintiffs prosecuting a libel or defamation claim must work very hard to succeed.  The case of the Nuremberg Site is an example of how difficult it may be, even when the plaintiff is complaining about threats.[ii]  Even if a plaintiff prevails in a defamation suit they may be subject to continuing attacks while appeals work their way through the system.[iii]

This may be where the real rub is when we speak of the Internet and freedom of speech.  One of the unhappy truths about the Internet is that its shadow side enables all manner of speech that barely stops short of crossing the line into libel, defamation, or threats.  This includes message boards and chat rooms, not just the static content of a site.  Protected by Section 230, many web site operators consider themselves perfectly safe from prosecution should anyone step over that line, and don’t moderate their sites.[iv]  It is a caveat emptor environment.  Depending on where you go, you may find yourself at a board or room that is the equivalent of a saloon out of the Wild West.  If you are not a like-minded soul, and/or tough enough to withstand the posturing and bullying, you quickly leave to keep your sanity.  The speech you encounter can range from silly to downright vicious.  Complain about it and you may be flamed.  Discussions that have a serious content can degrade to personal attacks, which leave the original issue in the dust.  Not even the TrekBBS, which is moderated and requires a login and password, is exempt from such activity.

The consequences of such speech can be devastating.  The anonymity of the Internet also masks the underlying truths about who we really are and what we are able to deal with.  We seldom know who is on the other side of our computer screen.  Is it a small child or a rambunctious teenager?  Is it a lonely widow or someone on the make?  Is it someone reaching out for friendship or a bully looking for new victims?  Many of the more aggressive Internet posters operate with no consideration for their audience.  They believe in speaking the truth, and if doing so hurts someone’s feelings they really don’t care.  Would they speak as bluntly, as coldly, and with so much venom if the other party were looking them in the eye?  What sort of relationships would they have if that were a standard way of talking (in person) to others?

I want to emphasize here that holding people accountable for what they have said (written) and taking issue with their ideas or comments is a far cry from casting aspersions about motives, agendas, or personal qualifications.  Ad hominem attacks, which focus solely on the person making the argument or their character, or that focus on the emotional context of the argument, are popular but have no real validity.  What they provide is an opportunity for the speaker to demonstrate power over another by, in effect, shouting them down or degrading them.  It is the tactic of the bully, the person insecure in his (her) own capabilities and unable to bring forward well-considered arguments.  It is the behavior of the gang as the participants jockey for position, establishing a hierarchy of the strong (at any price) leader and the followers.  In some cases they are the same people running sites with content we may find objectionable.  They cannot be banned wholesale from the Internet, and probably shouldn’t be.  Why?

Like the unpleasant content of some sites, those individuals (anonymous or otherwise) who are filled with anger, or insecurity, or righteous indignation, or simply looking to aggrandize themselves are testimonials to reality.  They are expressing themselves fully, even by being ugly, in the one venue that permits them to remain in the shadows, and unaccountable if they so choose.  It is a reminder that the framework supporting a civil society must be nurtured not ignored.  A civil society requires vigilance; it does not spring into life like some modern day Athena, fully formed from the brows of citizens.

But unlike real life, the Internet does not require a recognizable identity.  At one time or another most of us have experienced the thrill that comes from subverting the system and not playing by the rules.  The Internet provides the perfect opportunity for many such thrills through anonymous subversion of the rules governing social encounters.  It does not require face-to-face contact and the emotional context of a conversation is not always well expressed in text.  How do we deal with visitors who subvert the rules of civil society, without stooping to their level?  We find ways to deal with real life bullies, why not on the Internet?

We have the latitude to operate our sites according to our values and preferences.  If we find certain visitors distasteful, what are we doing at our sites to limit their influence?  What are the rules of engagement at our message boards and chat rooms?  What tone and what standards are we setting?  What is the underlying philosophy and have we publicized it?  Do we set the example for civil behavior, or let events take their own course?  When I was a child the neighborhood children often came to our yard to play.  My parents were the toughest on the block and everyone knew they meant what they said.  Our yard was not exempt from civil behavior no matter how rowdy we got.  And with seven children at home, plus their friends, it could get real rowdy.  There is nothing that requires we give up privacy or anonymity while acting civilly.  I believe we can have both.

Let me add that civility does not mean we handle each other with kid gloves.  The U.S. Senate is famous for strong language and speech between its members on issues near and dear to their hearts.  Labor negotiations are equally famous for the posturing that occurs.  Participants know that personal attacks and abuse work against the achievement of common interests.  When such behavior occurs the players must find a dignified way to restore the basis for their relationships.  Otherwise the rupture may never heal and the potential for accomplishment is lost.  Seldom do you find Senators who cannot bridge differences and treat each other respectfully, at least in public.  If the Senators (given to calling each other “my esteemed colleague”) can forcefully express their views and maintain civil relationships in public, surely we can on the Internet. 

Chaos inevitably gives way to order in which stability is attained.  The Internet is no different in that regard.  Its self-organizing capabilities are quite obvious, but it is entering a dangerous phase.  Its expansion and evolution over recent years shows no sign of ending as governments, businesses, organizations, and individuals find new ways to utilize its potential.  While it is not a biological organism it operates at the direction of biological organisms: ourselves.  It is up to us to insert our influence into its development.  The alternative is to bow to government regulation, which I believe to be a reactionary response that will stifle the Internet’s future, as well as our own.  Recent information suggests more regulation is coming.  More on that in Part II.

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