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July 08, 2008

The Internet As Public Space

Grim poses an interesting question:

"Public" Online Space:

There was an interesting article on Yahoo/Flickr today, which touches on a topic that interests me. To what degree is the Internet "public" space? On the one hand, there's nothing to stop anyone at all from coming to visit; on the other, no part of it that citizens can use to express themselves is "public" in the traditional sense of the term. It is privately owned.

There are legal consequences to that, but those don't interest me particularly -- what interests me are the normative questions. In other words, I am interested not in what the law currently says, but rather in the question of what the law ought to say.

We increasingly live on the internet: don't we want some of these public-space protections for our speech?

Under what legal rationale would American citizens be entitled to legal protection for online speech? Our first amendment rights protect us against government censorship; they do not guarantee us the unrestricted right to bloviate on someone else's server (much less on their nickel!). How do we guarantee online speech rights?

Do we force site owners to grant access to all comers, even though they may be sued for the actions of commenters? Does this not amount to a taking of private property? Or have we, post-Kelo, simply abandoned the notion that individuals have any enforceable property rights against the collective?

The 'Net may be the one place where we face the disturbing notion that, as special as each one of us may be in our own eyes, other people's rights matter too...unless, of course, they happen to be lousy, stinking spicists.

Posted by Cassandra at July 8, 2008 08:17 AM

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I suppose we could pass a law mandating that site owners give access to all comers, while retaining full liability for it. That's the kind of solution Congress might imagine, which is why I thought we might want to think about it ourselves before they got to it.

What I actually had in mind was something more like creating a class of websites that could be a kind of "public space" -- much as we have classes of organizations that are formed to be "nonprofit."

To qualify as such a space, a provider would have to agree to respect 1A rights; but in return, would have their liability removed for what was said.

This would, I think, be a useful way to address the fact that there is otherwise very limited opportunity for the 1A to apply to the internet. Freedom of the press applies to those who own the press, and they also own the paper that goes through the press until you buy a copy of it. That's not so here. Even in the maximal case -- a well-funded newspaper like the NYT -- all I can really own is the server.

You're a good part of my inspiration for thinking about this subject, actually. You've often asserted that we should think of the internet as a sort-of public space -- "mixed company," as regards male/female interactions, children being present, and so forth. Therefore, I would think you would be amenable to considering ways in which we might want at least some of the "public space" mores available to us, in at least some internet spaces.

I think we need "private space" on the internet too -- but I see no reason to think that is all we need. We'd benefit as a society from having both concepts available online. It is possible to construct such a reality: we aren't bound by the model we have now.

Posted by: Grim at July 8, 2008 12:32 PM

SPICIST!!!! :)

Posted by: Cassandra at July 8, 2008 12:45 PM

Seriously, I think this is one of those male/female areas where we fail to communicate.

I think that we ought to realize that the Internet is "public space" in the sense that what we say there can never be anything other than "public". Therefore as INDIVIDUALS we ought to behave accordingly, and I have so stated. I am not entirely sure that this is an area law needs to address (though in the area of concrete, demonstrable harm to the innocent, I may be willing to revisit this).

If you take precautions (such as forcing people to log in with laborious security measures) then I'd argue perhaps your private areas could be effected - you can't very well argue you stumbled inadvertently into an area that forces you to log in with a secure password). If you end up offended... oh well :p However, if crimes are committed there, especially against children, I will support law enforcement in stringing up your sorry tuckus - online or not.

"You" being generic, of course, Grim. I know you would not do these things.

Posted by: Cassandra at July 8, 2008 12:51 PM

I realize your "mixed company" concept had not been a call for legislation. I just mean that it was what got me thinking of online space as being at least quasi-public; and the more I think on it, the more I think we could usefully develop ways to have both "public" and "private" space.

For example, when you say:

"The 'Net may be the one place where we face the disturbing notion that, as special as each one of us may be in our own eyes, other people's rights matter too..."

You're talking there about property rights, but I'm not sure that the current system protects them very well. If I were a server owner, in a sense I am "free" not to have a restrictive policy that prevents racist comments; but that leaves me open to legal strategies designed to punish me for what people say who rent space on my server.

Similarly, if I have no policy preventing people from saying things "offensive to Muslims," I could find myself in civil court over it.

So yes, my rights as a property owner are protected: as long as I am willing to adopt exactly the same policies as other such owners; where those policies are defined by not by my preferences, but by what lawsuits have been successfully waged against server owners like myself in the past.

Having an online "public space" concept of the type I was describing would protect both property rights and speech rights. I would be free to opt into the system as a server owner, or not; and if I did, I would be protected in that decision by having my liability removed. I could thus, as a property owner, choose to allow free speech on my site -- really free speech, not free-within-the-constraints-of-lawsuits -- or I could choose not to do so. That's real liberty, where now we have only an illusion of the protection of property rights.

Meanwhile, people who wanted to express their speech/press rights online would be able to make contracts allowing them to do so. Right now, I can't really do that -- any hosting service has to have some variation of these policies out of self-defense. So my rights as a speaker would be better protected as well.

What's the downside to the proposal?

Posted by: Grim at July 8, 2008 01:00 PM

I would call the Internet a public forum ("public" in this case not being part of the public/private rights issue, just public in the sense that what you say is accessible to everyone. Whether they read or not is another matter).

I think of it as the Town Square, where anybody with a soapbox, a heated opinion and an iron bladder can say whatever he wants for hours on end.

Nobody ever considered soapbox makers responsible for demented ravings of madmen, so why should we hold ISPs responsible for the same? Their role is to provide (anybody notice the "P" in ISP?), not regulate.

Just as some people were undoubtedly offended in Hyde Park, people will be offended by what some of us say (just as we'll be offended by what some others say). In the old days, in the charming era of ante-bellum South, if someone offended you, you could whisk your glove across his cheek and settle your differences at dawn. But those halcyon days are long gone.

With close on 300 million people here in the states, it woulld be extremely rare to find anybody who doesn't offend at least one other of the 300 million. At least, a live person.

(It took me a while to figure out that you didn't mean "spikist". I saw that story from Formerly Great Britain - just when you think they couldn't get more stupid, something like that happens. Boy, am I offended! Orwell was right.)

Would it be wrong to shout "VIRUS" in a crowded chat room?

Posted by: ZZMike at July 8, 2008 04:50 PM

Common Carrier. End of story.

Well, maybe not quite. Repealing the DMCA would help at first.

And don't forget that I'm typing this in Malaysia. Trans-national laws make this issue even more complicated than it would be if you restricted it to the USA.

And what happens (along the same lines) when the company you buy server space from is based in the US, the server farm itself in Aruba, the legal jurisdiction in Switzerland, and the commenters from Africa?

Posted by: Gregory at July 8, 2008 08:58 PM

Ah, yes, Malaysia. Is Steven Gan still out of jail?

Posted by: Grim at July 8, 2008 09:05 PM

Perhaps the professionals at the NYT could help by establishing standards with which every public forum would voluntarily comply from sheer enlightened self-interest.

Then again, maybe turtles will start building condos atop fence posts...

Posted by: BillT at July 9, 2008 07:36 AM

Ah, Grim. You got me there. I don't know.

Of course, I don't know who Steven Gan is.

Ah, the editor of Malaysia Kini. Yeah, I think he's fine. One of his co-bloggers/writers/editors is not so fine, though.

But like I said, trans-national law. It complicates everything.

Posted by: Gregory at July 9, 2008 09:26 PM

He was on my watch, a while ago.

Posted by: Grim at July 9, 2008 09:43 PM

Like you said, Grim, Malaysia.

Stay small, do stuff like this outside the country, you're likely to be fine. Get too big, and well, it's the tall poppy syndrome.

Posted by: Gregory at July 10, 2008 02:42 AM

Around here, it's called the Mushroom Syndrome, Gregory.

Pop your head up out of the b.s. too far and you get canned...

Posted by: BillT at July 10, 2008 02:46 AM

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