Friday, December 4, 2009

Legitimate Limitations On Freedom Of Speech

Based on some of the comments I've received in response to last week's post about what defines freedom of speech, both ones I've posted and and the handful I rejected, I've decided a follow-up is in order. Many talk about freedom of speech as if it is an absolute right (it isn't) and as if it is always good and desirable (it's not). Let me explain.

In the United States courts have long upheld limitations on free speech that most of us find to be quite reasonable. The most famous example is that falsely shouting "Fire!" in a crowded theater is not protected free speech. The reason is obvious. Such speech could cause people to be trampled, resulting in injury or death. The United States Declaration of Independence only enumerated three rights as "inalienable": "life, liberty and the pursuit of happiness." Notice that life comes first and since being trampled to death denies someone their life it is perfect reasonable for the U.S. Supreme Court to rule the way it did in 1919. Chief Justice Oliver Wendell Holmes, Jr. laid out the reason why speech can be limited:
"The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

Other examples of where free speech is limited in free societies falls into the category of where allowing an absolute right of free speech would deny others of rights which take precedence. In the United States there are laws against incitement to riot and incitement to violence. Defamation of character, including libel and slander, is also not protected speech precisely because of the harm done to the target of such speech.

Laws against sedition are certainly more controversial but the principle is the same: the harm done to citizens of the country could conceivable deny them of their life or liberty. In the United States the Smith Act is still the law of the land. The same justification is used for laws against treason and espionage, as well as prohibitions against some news reporting in war zones. Many Americans will remember that Geraldo Rivera of Fox News was expelled from Iraq for revealing the location of U.S. troops, an act which could put those troops in danger.

OK, up until now I am talking about broad principles and governments. The reason I went off in that direction is to make the point that most reasonable people in free countries do understand, accept and support reasonable limitations on free speech. By the strictest definition of the word these examples are all forms of censorship. Censorship, in and of itself, is not evil. What is evil, or at the very least damaging to a free society, is the indiscriminate or unjustified use of censorship. This brings us back to last week's post. What about individuals, blogs and websites?

Let me reiterate the basic premise of what I wrote last week. You have a right to your ideas and opinions about pretty much anything at all. You have a right to express them. That is the essence of freedom of speech and expression. You do not have the right to publish your ideas wherever you want without the approval of the owner of the media where you want to publish. You do not have the right to order a website or a blogger to publish your comments whether they want to or not. That isn't freedom of speech. That's dictating what speech will be published. It is the antithesis of free speech which is being misrepresented as free speech.

Let's go back to the example of LXer.com and their Terms Of Service (TOS). There was a period some months back where it seemed to a number of the regulars in the LXer.com forum, including myself, that a few individuals were effectively hijacking the site, turning the forum into a soapbox for a particular political agenda. They would dominate threads and post long diatribes anytime someone would disagree with their views. I visit LXer.com to read news about Linux and FOSS (Free and Open Source Software), not to debate politics. Yes, the agenda in question was one with which I disagree but that really is irrelevant. I don't go to Linux news sites to read about politics of any stripe. A number of us complained to the editors and the Terms Of Service are now being enforced. I was sharply criticized and personal attacks were leveled at myself and others because we wanted a Linux site to be a Linux site.

I made the point last week that many websites and blogs are designed to express a particular viewpoint or opinion. That is no different from other forms of media. Fox News is known for expressing a conservative Republican political agenda in the United States. As I pointed out last week I cannot demand they air my decidedly more liberal views. In the case of a blog or website, particularly one that expresses unpopular minority opinions as I often do, without comment moderation it is entirely possible for the message to be lost in all the noise. Another possibility, particularly when a site has a an agenda, is that the other side of the debate tries to effectively take over and weaken the message. Moderation, even though some define it as "arbitrary" or "capricious" is an absolute necessity in these cases. Why? Without moderation the ability to express the viewpoint the author or editor wants to express can be diluted or lost. In effect, those who insist on their "freedom of speech" in the form of unlimited, unmoderated comments are denying those same freedoms to those they disagree with.

I received a perfect example in a comment I rejected today which concluded with the commenter telling me he want me to "shut up and get lost." I will do neither. It's funny how those who cry "censorship!" and claim a denial of "free speech" the most vociferously are willing to deny that speech to someone they disagree with. They demand the right to dictate what I or anyone else will or will not publish but would deny me the right to say something they don't like. As I said last week: some people have very strange ideas about freedom of speech.

19 comments:

The Beez' said...

I'm not clear what you're trying to say. You like 'censorship' or you like 'free speech'? Do people have a right to express their opinion or don't they? Is it possible to discuss non-technical FOSS issues or isn't it?

You're moving left and right and it's not quite clear in which direction you want to go. You're mixing up "expressing opinions", "revealing information" and "giving false statements".

Please don't shut up, but be clear in what you want to share with us.

mphill said...

When the freedom of expression is against a conservative it's considered the highest form a patriotism. When it's against a liberal it's racist, hate speech or you get an ear full about limitations of free speech and it is suppressed. I just find the double standard interesting is all. I don't think Lxer.com should link to this blog. It's not really related to technology and seems to contain more rants. We already have enough negativity in the world. Just my two cents.

Caitlyn said...

I am clear and you have, in part, reached the correct conclusion. I don't "like" free speech or censorship. Free speech is not universally a good and censorship is not universally an evil or vice versa. That is very much part of my point.

I'm not mixing up anything. I was giving a detailed list of examples of legitimate limitations on free speech which include false statements which can cause great harm or revealing sensitive information.

As far as expressing opinions is concerned, everyone is entitled to do that. What they are not entitled to do is to demand that their opinions are published in one place or another. They are also not entitled to cross certain red lines enacted into law where their speech can do harm as determined by law and the courts.

Is that clearer for you?

Caitlyn said...

@mphill: Actually, I see the same sort of positive and negative reactions to both conservatives and liberals. A lot of people are willing to attack those they disagree with and praise those they agree with. A lot of people are very closed minded when it comes to opposing opinions which is really a shame. How can anyone enter into an intelligent debate without understanding both sides of an issue?

I don't think my blog is negative or "full of rants". You seem to be self-identifying as a conservative. Perhaps you just don't agree with me and therefore don't like my writing. I certainly am not writing "negativity." In any case it's my personal blog designed to express my personal opinions.

When you become editor of LXer.com you will be able to determine what the site links and doesn't link.

The Beez' said...

As a matter of fact, according to the ethical guidelines for journalists, they are entitled to show the other side of the coin.

I quote:
— Tell the story of the diversity and magnitude of the human experience boldly, even when it is unpopular to do so.
— Support the open exchange of views, even views they find repugnant.
— Give voice to the voiceless; official and unofficial sources of information can be equally valid.
— Distinguish between advocacy and news reporting. Analysis and commentary should be labeled and not misrepresent fact or context.
— Encourage the public to voice grievances against the news media.

It is common for 'technicians' turned journalists to forget about that. I know it's not nice to get the heat, but it's not nice either trying to censor or shut up those who don't agree with you. Even if they tell you to shut up.

Caitlyn said...

Blogging is not journalism. This blog is clearly labeled as opinion and is nothing more or less. This blog is most definitely includes issue advocacy. It rarely includes anything which I would define as news.

If you've read my blog and the comments you know that I do allow opposing voices, even strongly worded opposing voices, to comment. However, I feel no obligation whatsoever to post abusive comments or those with foul language in my blog.

I would also submit that most of today's news media does NOT follow those guidelines. I wish they would.

The Beez' said...

@Caitlyn
Foul language is a big no-no. I don't allow that on my blog as well. But you're not merely talking about "foul language". That's where the confusion begins. Can't you concisely formulate what you would allow or not instead of beating around the bush?

Caitlyn said...

No, I cannot concisely formulate guidelines. I have made clear in my previous post that this is editorial discretion, nothing more. There are no hard and fast rules nor would I want to impose any on myself. Having said that I do allow most things through.

The Beez' said...

@Caitlyn
Well, I can and I have. And every time I feel like suppressing a comment I examine my own standards to see if they fit. I would agree this is not entirely "objective", but I feel it is much better than a "Simon sayz" rule. Not only is it a little bit more fair, it also forces me to really contemplate about the guidelines I want to apply. I'm slowly understanding what it is that bothers me about this article.

Bob said...

I agree with Caitlyn on this. I find it very interesting how some folks demand this, that and the other thing ... but seldom contribute (sorry, a bit of a different topic...). But, really, if you want to exercise "your" free speech, by all means set up your own site and post away! And if it's important, witty, relevant, funny, etc. some folks might even read it. Might even agree with you.

The Beez' said...

@Bob
Thank you, Bob. Been there, done that.

4ebees said...

I can see clearly what The Beez is saying.

"...every time I feel like suppressing a comment I examine my own standards to see if they fit. I would agree this is not entirely "objective", but I feel it is much better than a "Simon sayz" rule."

In other words. If I decide I'll post it, I will. If I decide, I won't. My name is not Simon. Therefore this is not 'Simon Says'. It's 'The Beez says'.

Easy that one.

I can see why you're disturbed. I would be too if people thought I was called Simon.

You are using your own 'standards' to determine what is allowed. I note that you comment to Caitlyn that there are 'journalistic standards' even though, as she says, this is a blog and clearly stated as such. However I can't see in your reply where you state you apply these principles in determining what goes on your blog. I assuming that if you apply your own standards, then you don't apply those journalists are expected to and thus your post is actually more of a 'pot/kettle' statement.

Can you please identify the means by which you determine what is posted and how you came by these?

4ebees said...

Here's another related issue, Caitlyn.

This was posted on my own blog (not as well read as yours!):

It's also been commented on by Marcel Gagné's at http://ubuntu-user.com and will not doubt gain some more steam (I hope) in the following weeks.


So, I came across this post the other day:

http://www.google.com/support/forum/p/Google+Docs/thread?fid=35b7c6eb9943e9ed000479bdec3d9421&hl=en

It relates to filters put in place by Google when
using GoogleDocs.

In short, the person stated that he was writing
notes for a US college class. He was coordinating
this with others.

He received a notification from google saying "The
published version of this item cannot be shared
until a Google review finds that the content is
appropriate." This mean the couldn't share or
publish his document and there was no obvious
appeal (at the time). Nothing told him what the
alleged cause was.

Now what I find disturbing is the notion that
there are any filters in the first place.

What is the purpose of this censorship in the
first place? People sharing documents that someone
else doesn't think is appropriate? I can't quite
get my head around that. Blogger, for instance.
Does that have a filter that prevents people
sharing offensive things? What about Youtube? No.
What about images found during a google search?
Not from what was said about the images that were
intended to insult the USA president's wife.
Google indicated that it didn't intend to censor
such things.

Though the image has apparently since been removed:


http://www.huffingtonpost.com/2009/11/24/michelle-obama-photo-goog_n_368760.html


the issue remains as it was the image poster, not
google, who removed the image. Google merely
apologised.


So I repeat my question: What is the purpose of
this filter when Google provide other services to
which the broader community has great access?

If this is something Google believes is reasonable
and it would appear it does, then this would
surely be something that the adopters of Google's
ChromeOS should become more aware of and maybe
they should take greater notice of RMS (Richard
Matthew Stallman) who is seriously concerned about
keeping your documents etc in the 'cloud'.

http://www.guardian.co.uk/technology/2008/sep/29/cloud.computing.richard.stallman

This is more grist to the mill and raises
questions for me about the use of google docs.

m said...

@Caitlyn
I think you have been perfectly clear and that you have an absolute right to edit your blog according to your own lights without having to waste time responding to stupid "freedom" arguments. I would suggest an up front statement on your banner that says words to the effect that "I'll bloody well do what I like here and if you don't like it, blast me to the heavens anywhere else you think that anybody who gives a hoot will read it but quit wasting my time here! If nobody reads your blog, tough."

The Beez' said...

@4ebees
Oh yeah, easily: "The rules for commenting on my blog are pretty simple: don't break the law, don't make ad hominem attacks (what persons are, do or views those persons hold which do not matter to the issue involved), don't use four letter words, don't spam".

You can find them in the comments of the last blog of September. The trickiest thing was formulating the "ad hominem" rules, the others are common practice around the internet.

You see, it's not that difficult.. I made those for myself in order to make the debate as open as possible without derailing it. I don't believe in censorship. Period.

Caitlyn said...

@The Beez: I suggest you look up the definition of censorship. Comment moderation does NOT fit the definition. The only time the word censorship can be properly used is when the government denies you the right to express yourself freely.

The Beez' said...

@Caitlyn
It was not me who made a connection between "censorship" and "comment moderation", but if you look carefully, one could easily make one:

"Censorship is the suppression of speech or deletion of communicative material which may be considered objectionable, harmful, sensitive, or inconvenient."

It is not limited to governments, also media in general could be included (Wikipedia). *ANY* comment moderation *could* fall within the definition of being "objectionable, harmful, sensitive, or inconvenient". That's why it should be applied very carefully IMHO and by clear guidelines.

Geek Feminism has guidelines as well, which boils down to "anything against feminism will be deleted". If you want, I can find the exact wording. Result: in a recent discussion they posed that "under certain circumstances less than perfect contributions should be accepted". I commented that "if you don't accept sub standard products or services as a consumer, you shouldn't accept it as a producer". What do you think? Deleted!

The end effect is that the discussions over there resemble the minutes of a Leninist Party Congress. That's what censorship does for you. The question is: what kind of blog do you want or better: what do you want to achieve with your blog? A personal fanzine or a service to the community?

Caitlyn said...

The minute you brought up Geek Feminism you should know our views would be polar opposites. I fully support an issue advocacy website's right not to post opposing views, particularly your views on sexism, feminism, and equality between the sexes, which I personally find to be Neanderthal at best. Sorry, I'm absolutely fine with their policies, just as I'm fine when media which I disagree with (i.e.: Fox News) does not present a liberal viewpoint.

Don't try red baiting with me. It won't get you far. Besides, the alternatives you propose, a "fanzine" if there is comment moderation, or a "service" if there isn't, is simply not accurate. You are trying to paint this as black and white when there are all sorts of shades of grey.

Anyway, you've convinced me. You've convinced me that I shouldn't let you dominate the conversation further and that I should continue to proceed as I have been.

paleo said...

I think there is far too much restriction of free speech currently and would be for the court reversing its position and expanding the boundaries of free speech into areas currently defined as not protected.