A One-Two-Punch Against Free Speech

[WARNING: This post is part of an April Fools Day prank. The Arizona bill is real, but the bill by Senator Lieberman is completely fictional. Eric Turkewitz was the ring leader for this event, and he has the wrap-up. The short version is that no one bit who should have known better.]

This weekend we’re seeing a one-two-punch against freedom of speech — at least as it exists on the internet — one from Arizona, the other from the U.S. Senate.

You may have heard of the first punch, in the form of a stupid law that I can only guess is an overreaction to the “bullying” panic. The Media Coalition offers this description of Arizona House Bill 2549:

Arizona House Bill 2549 would update the state’s telephone harassment law to apply to the Internet and other electronic communications. It would make it a crime to communicate via electronic means speech that is intended to “annoy,” “offend,” “harass” or “terrify,” as well as certain sexual speech.  However, because the bill is not limited to one-to-one communications, H.B. 2549 would apply to the Internet as a whole, thus criminalizing all manner of writing, cartoons, and other protected material the state finds offensive or annoying.

The Media Coalition explains what’s wrong with this in their letter to Arizona Governor Janice Brewer:

Government may criminalize speech that rises to the level of harassment and many states have laws that do so, but this legislation takes a law meant to address irritating phone calls and applies it to communication on web sites, blogs, listserves and other Internet communication. H.B. 2549 is not limited to a one to one conversation between two specific people. The communication does not need to be repetitive or even unwanted. There is no requirement that the recipient or subject of the speech actually feel offended, annoyed or scared. Nor does the legislation make clear that the communication must be intended to offend or annoy the reader, the subject or even any specific person.

In other words, this law would enact broad censorship of the press, and precisely because its result is so blatantly unconsitutional, I’m not too worried about it, even if it spreads outside of Arizona.

The second punch comes at the federal level, from reliable internet panic-monger Senator Joe Lieberman.

I know a lot of blogs attract crazy people, but I don’t get too many of them here. I was reminded of this recently when I got a comment on this post about Julian Assange blaming me for the decline of journalism since Walter Cronkite died (or something). Perhaps the most dangerous sounding was “Albatross,” who stopped by to defend writing about his fantasy of killing one of my former co-bloggers, and even he wasn’t as crazy as that short summary makes him sound. I’d like to think the relative lack of crazy is because all of you regular readers are so goddamned intelligent and level headed, but I suspect it has more to do with the fact that there just aren’t very many of you.

But even if the craziness in the comments got much, much worse, I don’t have to spend too much time worrying about it, largely due to Section 230 of the Communications Decency Act, which makes it clear that web sites that accept content from third parties are not considered publishers of that content, and are therefore not legally responsible for it. Essentially, comments I receive are not editorial content of this blog; they’re more like sheets of paper pinned to the billboard at a neighborhood community center.

All that could change if Senator Lieberman gets his way with a stupid new bill he’s just proposed. The bill changes Section 230 to essentially strip away the protection against third-party content, making every blogger responsible for what commenters post. This will kill or cripple the lively comment areas of many blogs.

Even worse, remember that in many cases the blogs themselves are third-party content on someone else’s site, such as blogs hosted by Live Journal, Blogger, or WordPress. (The Huffington Post media empire itself would never have gotten off the ground if this law had been passed a few years ago.) There’s no way those companies could afford to police the millions of blogs for which they would now be liable, and I suspect most of them would go out of business. Even my own humble blog might go under, since the company I pay to host it might somehow become liable for its content.

The Arizona law seems blatantly unconstitutional, but I’m not sure to what extent something as technical as the status of third-party content is constrained by the Bill of Rights, especially since 1st Amendment lawyer Brian Cuban seems concerned:

One may look at this and think, “good riddance to sites like the Dirty” but free speech for one is free speech for all, even commentary we find offense.  If this amendment passes, we are all stripped naked in our ability to engage in the honest and blunt discourse that anonymous commenting protects. It  puts an unbearable burden on not only the sites we might not like but the sites that encourage legitimate discourse. All consumer rating sites would disappear practically overnight.

Hat-tip to Florida criminal defense Lawyer Brian Tannebaum, who takes a Voltaire-esque stand:

I’m not a fan of the sewage that is most anonymous comments. In my little part of the blogging world they come from lawyers, lawyers parading as cowards – afraid to express their thoughts unless protected by anonynimity. But I certainly don’t support federal legislation controlling the sewage.

Strangely, Mark Bennet thinks it might be a good idea:

Obviously, making it possible for web hosts to be held responsible for the conduct can’t help but raise the tone. Letting people who have been libeled online seek justice from those who allow the comments rather than chasing anonymous ghosts will essentially bring much-needed grown-up (but — and this is the key — nongovernmental) supervision to the Internet, raising barriers to entry and therefore the quality and utility of the discussion.

I think the Other Mark is forgetting that he doesn’t own the servers his blog is hosting on, and if this stupid bill passes, he might get an ugly surprise when his hosting company decides they don’t have the time to research the facts behind some of the potentially libelous things he writes.

First Amendment Badass (and restauranteur) Marc Randazza confirms my interpretation and, naturally, stands strong, so I’ll let him have the last word, in his inimitable style:

Although Lieberman is touting this amendment as an anti-terrorist effort, this action will have a chilling effect on all forms of Internet speech. Service providers from Comcast to Consumerist may now be treated as publishers to content posted to their websites. This opens up the possibility that review sites and others that rely on third parties for content will be held responsible for those very same deranged, sub-literate contributions. Lieberman’s proposed amendment will have a chilling effect on free speech, as any site that does not want to drown in legal bills likely won’t accept anonymous comments.  If you’re a sissy with paper-thin skin or an obsession with “bullying,” rejoice, I suppose.

Needless to say, inhibiting anonymous speech is an attack on this right in gross.  It will be a grave day if this amendment succeeds.  Although anonymous speech on the Internet is not always the most intelligent, it still has its place in public discourse — for me to poop on.  Civil liberties should not be victims in the attempt to curb terrorism, yet we have already succumbed to the Scylla and Charybdis of the TSA and NSA in entrusting our rights to the benevolent government.  At this point, what’s one more right ceded to the security theater’s alphabet soup?

Eternal vigilance, folks. Enternal vigilance.

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