ACS.gifThe second panel we attended at the recent convention of the American Constitution Society (ACS) focused on a topic near and dear to our heart: free speech on the internet.
The panel, The Internet Revolution and Its Effect on the First Amendment, featured the following participants:

  • Judge Merrick B. Garland, U.S. Court of Appeals for the D.C. Circuit
  • Ann Beeson, Executive Director, U.S. Programs, Open Society Institute
  • Gregory S. McCurdy, Senior Policy Counsel, State Government Affairs, Microsoft Corporation
  • Cliff Sloan, Skadden, Arps, Slate, Meagher & Flom
  • Paul M. Smith, Jenner & Block, LLP
  • Lee Tien, Senior Staff Attorney, Electronic Frontier Foundation
    A summary of the extremely interesting discussion, after the jump.


    Here’s our (somewhat rough) write-up of the discussion. Consider these remarks paraphrased unless indicated otherwise (with quotation marks).
    Cliff Sloan: There are different views of the internet and its relation to free speech. Is it a vehicle for a free speech revolution? Or could it be a tool for greater surveillance and censorship? There are elements of truth to both.
    Two very important events in the early history of the net define it to this day. First, the Reno v. ACLU case, holding that the highest First Amendment protection applies to the internet. This has been justly called the Magna Carta of cyberspace. Second, Section 230 of the Communication Decency Act, which broadly gives immunity to website operators for content posted by third parties.
    And there are some threats to free speech. You can see the problem of censorship and surveillance in different countries — e.g., China’s “Green Dam” project. But then look at Iran and Twitter. Technology can be used to get around authoritarian regimes.
    Finally, there is the issue of intellectual property. Rampant piracy is a threat to free speech on the internet.
    The challenges to quality journalism are also a threat to free speech. But I don’t think the internet killed journalism. The net has been a boon for quality journalism. We’re really looking at a business-side problem. Good journalism is expensive. But it’s not a question of internet vs. print.
    Ann Beeson: “The Reno v. ACLU case was pretty much the first case I ever filed. I was a lucky kid.”
    We were convinced we were going to lose. We thought the Court was going to hold that broadcast rules apply to the internet.
    Paul Smith: That was a remarkable time. The judges we were arguing before didn’t really know what the internet was. We had to set up screens so judges could see what a website looked like. This was back in the 1990s.
    Greg McCurdy: State AGs — my focus in my work at Microsoft — are interested in regulating indecency on the internet. We are talking about live political issues.
    There are threats coming from governments and regulators that want to clamp down on speech. Some reasons are legitimate, and others are not. Microsoft has to think about how to respond. We serve customers and we want to provide useful products (and generate revenue for ourselves).
    Some regulators want there to be age verification for certain sites. It could be done through credit card verification. But it’s not clear that such an approach would be effective — kids get can get their hands on parents’ credit cards quite easily. Currently Facebook and MySpace have minimum ages of 13, under their Terms of Service. This is not the result of any government requirement, just action by the private sector.
    Paul Smith: In the Reno v. ACLU case, we argued — and Judge Dalzell agreed — that the internet is the most effective form of mass communication ever developed. Communication has been vastly facilitated. But there are challenges. There is a huge cacophony of speech on the internet. What about effective speech on the internet? Where can people obtain reliable information? Lots of people commenting on one thing is just talk, not journalism.
    (This made us think of commenters working themselves up into a frenzy on popular ATL posts.)
    There is also a threat arising out of tracking everything you read and see. There is a loss in terms of people’s ability to be anonymous recipients of information.
    Look at the Obama Administration’s process for vetting possible hires. There was a long questionnaire (PDF) handed out, and it asked for every screen name you’ve used on the internet. Maybe now that’s just a concern for people aspiring to administration service, but the concern could expand to include more people.
    Lee Tien: I work for the Electronic Frontier Foundation (EEF), and we are in some ways a 911 line for free speech on the internet. We often hear from internet users complaining about other people trying to shut them up.
    Sometimes it’s internet service providers, internet intermediaries, who try to crack down on free speech. We call this “censorship by proxy.” There has always been a tradition of trying to find the weakest link and to prevail upon that link to crack down on unwanted speech.
    Section 230 was an amazing thing for free speech on the internet. But we need to be vigilant. Look at how state AGs are trying to crack down on Craigslist.
    Judge Garland: What about a notice and takedown approach to dealing with defamatory speech? Would that be a threat to free speech?
    Lee Tien: Yes. The point of Section 230 and intermediary immunity is not to destroy the cause of action for defamation, but to allow the intermediary to continue as a free speech platform. We agree that a plaintiff should be able to get the identity of an anonymous poster if they can make a prima facie case for the defamation and show the interest in obtaining the person’s identity outweighs the free speech value.
    We support the Dendrite test. In many cases, the courts are being used not for lawsuits but for discovery: find out who the anonymous speaker is, so you can retaliate against them in other ways (e.g., by firing an employee for speaking truthfully about improper practices at a company — or, say, a law firm). There has been an enormous abuse of process. Given the high cost of legal services today, many speakers would rather settle than fight.
    Cliff Sloan: I’ve been involved in cases like this on behalf of media companies. There are guidebooks that tell companies to file John Doe cases to get identities so they can go after whistleblowers extrajudicially. That would be an abuse of process.
    Lee Tien: The notice and takedown framework of the Digital Millennium Copyright Act (DMCA), used in the intellectual property context, has been largely a failure. The pattern of behavior favors the takedown over the put-back. What we see is that takedowns, often issued by large and powerful companies, get priority over put-back requests.
    Ann Beeson: The first wave of threats to free speech online had to do with federal and state attempts to censor various types of content on the net. The second wave of threats has to do with the failure to ensure access to information and content on the internet.
    One is the utter crumbling of the business model of journalism — which the web has contributed to, along with other factors (like the economic crisis). We could shortly become the first developed country to leave large sectors of the country without a viable local press. Another is whether government is being sufficiently transparent about what it is doing. Take the economic stimulus program: do we have sufficiently granular information about how the funds are being distributed?
    The internet has made possible some amazing advocacy and investigative journalism (e.g., Talking Points Memo). Many major media outlets don’t have people on the ground in Iran, so citizen journalists are taking pictures and reporting on actions on the ground. But it’s still the case that the vast majority of original content is being produced by traditional journalism.
    Cliff Sloan: It can’t be denied that there is a desire for serious quality journalism. This is reflected online. People aren’t just flocking to frivolous sites.
    The conventional wisdom: the media’s economic wounds are self-inflicted; the MSM did this to itself, by making its content free. You’d think that advertising should pick up the slack, but advertising rates online are a tiny fraction of what they are in print. I suspect that we will eventually see more innovative advertising models being used online.
    Ann Beeson: We should look for greater innovation not just in advertising models, but in other revenue streams for media.
    Question and Answer Session
    Is it time to rethink the scope of Section 230?
    Cliff Sloan: In general, Section 230 plays a very important role in allowing the net to reach its full potential. There are legitimate issues — e.g., the differential treatment of classified ads in print and online. But I do think the basic principle of broad immunity has served us very, very well. Without Section 230, sites would become reluctant to host third-party content, and we’d lose out on a lot.
    In light of the problems of newspapers, who is going to generate the deep investigative work that is so essential for our democracy?
    Paul Smith: One approach — it’s not clear if this will be viable long-term — is the funding of non-profits that do investigative journalism. Many of these are bankrolled by public-spirited rich people. E.g., ProPublica.
    Judge Garland: But isn’t this what rich people were trying to do when they bought newspapers? And look how that turned out….
    Is there some modification we can make to Section 230 to better balance free speech and protecting the rights of victims? Sometimes you can’t find out who the original poster was.
    Lee Tien: This is not just an internet problem. If you have a judgment-proof defamer, you can’t get money either. Maybe we can have some kind of insurance pool or social subsidy for people who are victimized and can’t get redress.
    Will government get involved in the crisis of journalism? Should it?
    Ann Beeson: You may see some movement on this front. Look for hearings or perhaps a panel to investigate the crisis in journalism.
    Cliff Sloan: Getting government involved is dangerous. One proposal is to have the government subsidize journalism, but with restrictions on what the journalists can write — e.g., no political endorsements. That is not a good idea. One of the important roles of the media is to serve as a check on government.
    Could there be a potential threat to free speech arising out of efforts to hold information providers responsible for people who engage in harmful actions after seeing information posted online? (E.g., go after a service making home address information available on the internet because a stalker used that information and then broke in to someone’s house.)
    Lee Tien: We’ve been doing well on that front, generally because we have good law that draws distinctions between people who put information out there and people who take action based on that information.
    (And that is law that your friends at ATL are very, very grateful for.)
    The 2009 ACS National Convention [American Constitution Society]


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