International Online Debate On Freedom of Expression

JL Fandiari writes "The Internet Rights Forum, a french non-profit organization, has just opened an international discussion forum on 'Freedom of Expression in the Information Society.'(http://www.foruminternet.org/en/ for the English version). This forum is co-moderated by three professors of Law : an Amerian (Burton Caine), a Canadian (Pierre Trudel), a Belgian (Etienne Montero), a Senegalian lawyer (Mr Elhadj Mame Gning) and is coordinated by Lionel Thoumyre (the author of Juriscom.net). Their contributions are regularly translated into French or English. This amazing experiment has been initiated to prepare a symposium organized by the French national Commission for UNESCO on 15 and 16 November in Paris on the same theme. Their say the content of the discussion forum will be synthesized in a report to be presented to the participants and the speakers of the symposium. This symposium is placed within the perspective of the World Summit on the Information Society (WSIS) in 2003 in Geneva. Be sure to answer the contribution of Burton Caine, professor at the Temple University School of Law, that starts by asking 'Who are we?'"

Comments

Transparency International

[justanyone]

I'd be glad to hear from the group Transparency International (often quoted in the Economist) in connection with this project. Perhaps they have a deleate they can send to this conference. I've been reading about their activities helping citizens in many countries ask questions of their governments about election results, closed-door meeting minutes, campaign contributions, budget expenditures, etc.

I'm sure that they'd have an opinion about Free Speech rights in many countries where such rights would do the most good in promoting good governance. Yet, though I've read about them in The Economist, I've not heard of them elsewhere. Is anyone out there a member? Where does Transparency International get funding and is it a good cause (I don't know either way, I just hear good stuff about their activities).

It seems to me a debate about free speech has to hit on the following issues:

• Commercial speech (copyright law);
  
• Personal speech about "innocent" topics ("my kid likes dogs");
  
• Personal criticism on controversial topics (e.g., "I hate people that..." ;-) )
  
• Personal criticism of people ("Joe stinks!");
  
• Personal libelous speech of people ("Joe beats his wife");
  
• Personal libelous speech of public figures ("Senator Joe beats his wife");
  
• Personal speech criticizing government actions ("the Army kidnapped my grandmother");
  
• Asking the government questions ("Hey, Senator, where is my Grandmother?");
  
• Challenging religious thought ("God looks like Bella Abzug!");
  
• Hate speech ("I hate everyone who thinks God looks like Bella Abzug!");
  
• Incitement to Riot speech ("Let's Kill everyone who thinks god looks like Bella Abzug!");
  

I'm sure my list is meager and could be added to, but perhaps it's a starting point for discussions on the nature of speech. Did I miss any?

Re:Transparency International

[Gorm the DBA]

I would like to see some discussions about the boundries of "Speech".

Where does something become speech?

Is code speech? If so, then you can't control code, which brings the entire "copyright" issue into question. Nor can you ban DeCSS and the like, which would probably wouldn't make the RIAA and etc very happy.

On the other hand, if code isn't speech, then it isn't really appropriate for protection under Copyright laws anyhow, since they are designed to protect profit for the benefits of your own thoughts and words. It might become appropriate under Patent laws, but then Microsoft would have to apply for Patents on all of the "New Technology" they develop...which could be subject to Prior Art claims from the companies they stole it from...

But, since the question has never been definitively answered, then the corporations get to use the definitions most benefical to them. "It's speechlike, so I can Copyright it", "It's not speech, so I can ban it".

Those sorts of things need to be redefined in the 21st Century.

Re:Transparency International

[renehollan]

The types of speech you mention are interesting, but I think it would be useful to ask, "When is speech harmful?" Surely, speech should only be restricted if it can be shown to cause what a reasonable person would consider objective, measurable, harm. That kind of rules out "hurt feelings", but may admit "brainwashing" (which generally includes more than just speech). In these cases, simply hearing the speech may lead to mental illness, that is, the speech itself is the agent of harm. I do think, though, that the burden to prove that such mental illness is brought on by particular speech alone, is a difficult one to bear (as it should be).

Another major kind of speech is that which compels us to act. Under normal circumstances, rational people will think about what they hear or read, and come to their own conclusions as to how they should act. My writing "Kill all Microsoft Windows users!" does not magically cause people to go on a murderous rampage. However, there are situations when one does not have the luxery of considering the speech one has encountered, and if one does not act correctly, one can expect to suffer greater harm than if one did. In such a situation, speech that is likely to cause a reasonable person to act incorrectly, to avoid harm might be best restrained.

The classic example is crying "Fire!" in a crowded theatre. If, indeed, there is a fire, and it is serious, the resulting panic to reach the exits may cause some to be harmed, however, this is likely to be as risky as remaining -- oblivious to the danger at hand. However, if there is no fire, the harm caused by the panic is not warranted. Of course, relative likelihood of harm caused by acting vs. not acting is debatable, but that is why we have courts to decide what "reasonable people" would conclude, when the answer is unclear, and someone acted in a manner that many consider inappropriate.

This discussion has centred on what a "reasonable person" would think. Sadly, supposedly "reasonable people" all too often accept statements, espescially from purported authorities, at face value, not questioning them. Some of these statements may place certain individuals in a bad light -- "He is a child molester", harming their stature in society, with all the problems that brings. Should such speech (obviously I'm talking about libel and slander here) be restrained?

The problem stems from what constitutes a "reasonable person". Courts generally interpret that to mean "average Joe/Jane". Many of us might think that such supposedly "reasonable" people are all too quick to not judge what they hear, and read, and thus controversial speech should be restrained from reaching their ears and eyes, lest their resulting actions and opinions harm others. Alas, this prevent the more enlightned from deciding for themselves of the merits of particular speech because they can never encounter it. I suspect this is the greatest source of tension between those who want prior restraint on certain speech and those who unwaveringly accept the First Amendment in toto, with no if's and's, but's, or notwithstanding's.

I would think that the worst kind of restraint upon speech is that which restrains speech that has redeeming value, even if only to a small subset of the population. Software that permits access to lawfully obtained copyright material, even if this could facilitate copyright violation falls into this catagory. Here, the restraint is actually a cause of harm, where the promulgation would only result in a possibility of harm -- and one that would require at least as much effort as would be expended in the legal and useful application of the software.

So, while it may be possible that some speech might cause harm without having any redeeming value (and that is for the would-be censor to prove), the bar to restrain it should still remain very high, indeed.

Re:Transparency International

[jbolden]

Should such speech (obviously I'm talking about libel and slander here) be restrained?

I don't know the law in Canada regarding freedom of speech but from what I know on issues like politically controversial speech and gay literature there seems to be less freedom than in the US. Under US law a clear distinction is made between the right to censor and the right to sue after the fact. Censorship means that the government is suppressing speech, while libel and slander laws simple stipulate that after such speech is made you can be held financially responsible for the effects. Further the criteria for libel and slandar are rather high and except for the most clear cut cases are hard to meet. I'd have huge objections to censorship of either slandar or libel under any circumstances. Determing whether claims are true or not can take a very long time, and the right to hold back publication during that period of time can be effectivily the same as censoring information forever.

Re:Transparency International

[jbolden]

First off I think your list is excellent. My comments about the current state:

Commercial speech (copyright law);

I think US copyright law is quite good, though there are parts that I would like to see changed (for example copyright should probably expire in something like 35 years). US patent law is however terrible. I wonder if other countries have solved this problem, and advice to the US on this topic could be useful.

Also I think you want a seperate subcat for fraudulant speech -- i.e. commercial criminal speech issues.

Personal speech about "innocent" topics ("my kid likes dogs");

The question really is whether this is even controversial enough. I'm not sure this doesn't fall into the "no one cares" kind of bucket.

Personal criticism on controversial topics (e.g., "I hate people that..." ;-) )

This is interesting because the sharp divide in the US as to what private organizations can do (essentially anything they want) and public organizations (essentially nothing). I think this is a pretty good model for the internet as a whole where voluntary organizations maintain almost unlimited power of censorship with regard to their property but non voluntary organizations would have almost no power of censorship for public harmony. My fear would be non democratic societies, or marginally democratic societies often put a great premium on social cohesion and would want some levels of control here.

Personal criticism of people ("Joe stinks!");
Personal libelous speech of people ("Joe beats his wife");
Personal libelous speech of public figures ("Senator Joe beats his wife")

As I commented below I think the US model (no prior restraint and a difficult to win suit in all but the most clear cut cases) is pretty good here. The only thing that does bother me is I believe that public figures should enjoy the same protection against libel and slandar that private figure enjoy. It might do wonders to get politicians to focus on issues and not deliberately lie about their opponents.

Personal speech criticizing government actions ("the Army kidnapped my grandmother")
Asking the government questions ("Hey, Senator, where is my Grandmother?");

Well this is purely political speech and I think even the Europeans will be helpful on this issue.

Challenging religious thought ("God looks like Bella Abzug!");

I think the US is going to have to stand alone here on the absolutely no compromise position. Given the choice I'd rather lose the internet as an international medium than allow government control over religious / philsophical speech of any nature.

Hate speech ("I hate everyone who thinks God looks like Bella Abzug!");

While I like the US position the best here I would be willing to compromise with Europe

Incitement to Riot speech ("Let's Kill everyone who thinks god looks like Bella Abzug!");

I'd break this into 2 catagories:
a) The one you mention which IMHO is simply hate speech
b) "fire" in a crowded theature where the goal is to trick people into rioting.

Hitler, amyone?

[shaper]

Hmmm, apparently this forum is hosted primarily in France. So, what will they do when a skinhead or neo-nazi brings up their right to free expression?

What is speech?

[dpilot]

Let's cut to the chase, here.

Is money speech?

There's been a flurry of campaign finance reform attempts in the past year or two, driven by popular opinion. The current method of fighting it seems to be to describe campaign contributions as 'speaking' to the candidate, and therefor any attempts to limit those contributions are curtailing 'freedom of speech.' Sounds to me rather like claiming First Ammendment protection for bribary.

In Vermont we have a campaign finance reform law that has had its implementation 'delayed' by court action while things are figured out. In Tuesday's Primary one of the more contested races featured a candidate outspending his rivals by a large margin. He was criticized for this, and reminded of the pending law. His response, the 'money is speech' argument.

Perhaps the best counter to this strategy would be to extend OSHA (Occupational Safety and Health Administration) 'protection' to elected officials. Then assert that the 'speech' of excessive campaign contributions is so loud as to threaten the hearing of the candidate. Cap the decibels.

What is wrong

[nuggz]

Interesting summary, and I agree.

Some speech/expression should be permitted, and some not.

Re:other kinds of speech

[quintessent]

A few more manifestations of speech:

Misleading speech
* To protect your reputation ("I did not...")
* To protect yourself physically ("These are not the droids you're looking for"; "I've never met this person")
* To protect someone else ("He did not go through that door")
* To harm someone else (slander, libel)
* For profit ("I worked 25 hours last week"; Presidential candidate colors the truth to improve his image)
* To bolster a cause (PR company invents story in 1990 about Iraqi soldiers killing babies)
* To obtain evidence ("Your friends have already confessed...")
* Citing out of context
* Promises you won't keep
* Distorting the evidence; making claims you can't back up
* Fraud

Silence
* Withholding evidence (drug company conceals study results)
* Agreement through silence
* Silence about a crime in the present or future (Nevada man watches his friend go into a bathroom to rape a kill a child; wife says nothing about her husband's unlawful plans)
* To hurt someone's feelings
* To keep people in ignorance (someone is about to drink poison; harmful chemicals are in a river; Vatican withholds documents)
* Copyright laws forbid someone from displaying certain local legistlation on a web site
* Pleading the 5th
* Filtering (Great Firewall of China)

Non-verbal speech
* Harming property (Animal rights group burns down a building; someone sprays acid on a painting in a museum; de facto government destroys immense budhist sculptures; Boston tea party; Statues of Lenin destroyed in former Soviet Union)
* Harming people (a slap in the face; a kick under the table; mafia chief beats #2 man to death at a big mafia meeting; man pours gas on himself and burns to death in protest; chemicals thrown at an abortion clinic make people sick)
* Music
* Dance
* Appearance (Facial expressions; clothing; hair; piercings; tatoos; self-mutilation; gestures)
* Threats (a warning shot; laws; absense of laws; implied hit list of abortion doctors; carrying a gun)

Speech in context
* In court
* In office
* As a paid representative (attorney, PR, CEO, salesperson, teacher)
* In school
* To children
* In a church
* At a funeral
* In a hospital
* Broadcast speech
* Amplified speech
* Speech on the web
* Dropping leaflets (by hand; from a plane)
* In an airport
* To a country's President
* Spam
* In a crowded theater
* Going door to door
* Classified information (congressman leaks to press; double-agent sells secrets)
* Billboards
* Political ads
* In bed (with a politician)
* Attorney-client
* Religious confession

Transmitting information
* Napster
* De-CSS
* P2P
* Hosting web sites for others (lawful or not, ethical or not)
* Accessing a database
* Lending a CD with music or software
* MAME and game ROMs
* Encryption/steganography
* Wi-Fi
* Sharing internet or cable access
* Books (giving/selling/smuggling/banning)
* Writing "how-to" guides
* Cameras (web/government/corporate; face recognition)
* Gathering and selling consumer information