Big win for free speech online

The San Jose Mercury News reports on an important and common-sense ruling by the California Supreme Court: Justices hand victory to free speech online.

Legions of Web users and Google, Yahoo, Microsoft and other major Internet providers dodged a legal morass Monday when the California Supreme Court ruled they cannot be sued for posting or distributing libelous material written by others.

In a 34-page ruling, the state's high court overturned a lower court decision that had stripped immunity against such lawsuits and alarmed free speech advocates who warned it could chill expression on the Internet.

The Supreme Court unanimously concluded that federal law is clear on insulating Internet providers and Web sites against lawsuits for the inflammatory statements of others. The ruling does not, however, protect the original authors of defamatory material. ...

The Electronic Frontier Foundation has discusses the ruling here, and the court's decision is here (PDF).

Meantime, a federal judge in U.S. District Court in Chicago has ruled that Craigslist is not responsible for openly discriminatory housing ads placed on its site by users. Another important victory for the online community.

Teachers still have rights as citizens

Maggi Hall, a veteran public school teacher who has written four books and now owns a real estate firm in Florida, wrote a letter to the newspaper in Marion County, South Carolina, criticizing her school district more than a decade ago. That simple act escalated into a First Amendment lawsuit against her school district. In 1994 the 4th Circuit Court of Appeals determined that the district violated her civil liberties, and the cast now stands as case law to project the rights of teachers.

Hall now has a book out abou the case its continued relevance in an age when teachers' rights are under assault: Affirmed: Teachers as Citizens.

Student journalists granted freedom-of-speech rights

MediaNews: Student journalists granted freedom-of-speech rights. New law prohibits before-print censorship at state universities.

College journalists in California will soon have the same free speech rights as their professional counterparts, as legislation prohibiting the censorship of student publications was signed by Gov. Arnold Schwarzenegger on Monday.

The Assembly bill, AB 2581, grants first-of-its-kind free speech protections for college journalists. A recent federal ruling put the work of college journalists at risk for prior review by college administrators. ...

This is great news, and a cause I've supported since my high school administration confiscated the East Paterson, NJ, Scarlet Quill during my tenure as editor in chief.

Court to rule on bloggers' First Amendment rights

I'm sooooooooo tired of the are-or-aren't-bloggers-journalists? question. But the press continues to be riveted by the issue. ABCNews.com: Apple Lawsuit Could Define Cyber 'Journalists.' California lawsuit could determine First Amendment rights of bloggers.

The Netroots win at the FEC

The Daily Kos has the lowdown on the FEC's splendid decision not to regulate Internet content during federal election campaigns with the exception of paid advertising. An important victory for free speech online.

Get a clue on value of dissent

Wonderful letter from Melanie Kriese of Campbell, Calif., in today's San Jose Mercury News: Get a clue on value of dissent.

My kitchen table now has a forehead-sized dent in it. For this I would like to thank the myriad letter writers who regard questioning the president and the policies of his administration as unpatriotic and, yes, even treasonous. Perhaps as a public service, the Mercury News would consider printing -- in full -- the Federalist Papers, the Declaration of Independence and the U.S. Constitution. For those who have neither the time nor the inclination to reacquaint themselves with these documents (all once considered treasonous), a couple of quotes to ponder: Benjamin Franklin once said, ``They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.'' And from Albert Einstein, ``Unthinking respect for authority is the greatest enemy of truth.''

I'd add three more quotes, all from journalist Edward R. Murrow:

• "We cannot defend freedom abroad by deserting it at home. "

• "We will not walk in fear, one of another. We will not be driven by fear into an age of unreason if we dig deep in our history and doctrine and remember that we are not descended from fearful men, not from men who feared to write, to speak, to associate and to defend causes which were for the moment unpopular. We can deny our heritage and our history, but we cannot escape responsibility for the result. There is no way for a citizen of the Republic to abdicate his responsibility." - From the March 9, 1954, "See It Now" television broadcast on Senator Joe McCarthy.

• No one can terrorize a whole nation, unless we are all his accomplices." – Speech to staff, March 9, 1954

Online Freedom of Speech Act

Kos supports H.R. 1606, the newly reintroduced Online Freedom of Speech Act, which would "exclude the Internet from the definition of 'public communications' under campaign finance law." Sounds good to me, though I need to dig deeper into this.

China censorship: what now?

Rebecca McKinnon: China censorship: what now?

So now what? I hope that this draft legislation will be the beginning of a long and constructive process. I would like to see detailed analysis from all potentially affected U.S. technology companies as to whether they think this legislation would enable them to continue doing business in China, but more ethically.

Rebecca, a friend and a fellow at the Berkman Center, is someone I look to for a savvy and moral international perspective on these issues. I'm with her here, too: We need a smart cross-industry or government approach to conducting business in China rather than the current go-it-alone approach.

Business Week: The Web and China: Not So Simple. Google, Yahoo, and Microsoft say they face a stark choice: Conform to Beijing's edicts or quit the market. The truth is much more complicated.

San Jose Mercury News: Net censorship angers House. High-tech execs get a earful over China policies.

Cindy Sheehan's arrest at the State of the Union

By now, some of you no doubt read about peace activist Cindy Sheehan's arrest last night before President Bush's State of the Union address. She was arrested for "unlawful conduct" for wearing a T-shirt that said: "2,245 Dead. How many more?"

Not surprisingly, the media commentariat is lashing out at her for inappropriate behavior.

Here is what really happened -- Sheehan's blow-by-blow account, on MichaelMoore.com.

I was never told that I couldn't wear that shirt into the Congress. I was never asked to take it off or zip my jacket back up. If I had been asked to do any of those things...I would have, and written about the suppression of my freedom of speech later. I was immediately, and roughly (I have the bruises and muscle spasms to prove it) hauled off and arrested for "unlawful conduct."

After I had my personal items inventoried and my fingers printed, a nice Sgt. came in and looked at my shirt and said, "2,245, huh? I just got back from there."

I told him that my son died there. That's when the enormity of my loss hit me. I have lost my son. I have lost my First Amendment rights. I have lost the country that I love. Where did America go? I started crying in pain.

What did Casey die for? What did the 2,244 other brave young Americans die for? What are tens of thousands of them over there in harm's way for still? For this? I can't even wear a shirt that has the number of troops on it that George Bush and his arrogant and ignorant policies are responsible for killing. ...

Yes, I oppose the war, but even if I did not, the mere wearing of a political statement should not be grounds for physical removal and arrest, for God's sake, from the so-called People's House.

A Republican Congressman's wife also wore a T-shirt to last night's address. It said: "Support The Troops." (As I do. As Cindy Sheehan does.) She was not expelled. She was not arrested.

Why?

Later: CNN had reported that the Congressman's wife was not expelled or arrested, when she apparently was forced to leave the House. As the Daily News reports today: "Capitol Police said they were sorry for booting 'peace mom' Cindy Sheehan and a GOP congressman's wife from the President's State of the Union speech Tuesday night - all because they wore slogans about the war on their shirts."

Outwitting the world's Internet censors

Short article in the NY Times: How to Outwit the World's Internet Censors. Excerpt:

Every day in China, [Berkman's John] Palfrey said, an underground economy of proxy server addresses comes alive — usually connecting to servers made available by volunteers around the globe. These addresses are passed along and traded, using elaborately coded language, on electronic bulletin board systems or chat channels.

Elsewhere on the Web, the Electronic Frontier Foundation (www.eff.org) helps maintain Tor, a communications network that helps make Internet communications anonymous, and it appears to be accessible from within China. Peacefire.org offers a program called The Circumventor that lets anyone turn a Windows-based machine into a proxy, allowing others to use it to circumvent local Internet restrictions.

Even two small commercial companies, Dynamic Internet Technology and UltraReach Internet, offer software or Web services that try to poke holes in China's "great firewall." ...

No mention of darknets, oddly.

Defining the Web for legislation

Just received this from Markos at the DailyKos about proposals in Washington to exempt bloggers and others who use the Internet from campaign finance laws that regulate soft money:

As you may or may not know, I've been fighting for legislation that would protect the web from regulatory oversight (which I believe would kill it). Legislators and "reformer" groups are worried that a blanket exemption of the Internet would allow the free flow of soft money into the system, despite efforts by McCain/Fiengold to stamp it out. Those fears are mostly stupid, but they start making sense if you consider the near-future potential of Voice and Video Over IP, and the coming convergence of television and the internet.

A compromise in the works would provide the media exemption (which GE and Viacom and Disney get) for web publications. In other words, over inforrmation transmitted over the World Wide Web, which should prevent the VoIP fears. But, now, we need a legal definition of "World Wide Web".

It's a definition that should have some staying power, shouldn't become obsolete in a couple years, and should accommodate new
technologies like Podcasting and Peer to Peer networks.

TVoIP and VoIP must be excluded, but blogs, RSS feeds, podcasts, Peer to Peer networks, Yahoo and Google groups, message boards, chat rooms, and other such web communication technologies have to be included.

Any ideas?

It's a important and fascinating issue that will ultimately touch all our lives. It also should be pointed out that this is a definition relevant only to U.S. law, as other jurisdictions may define the Web as they wish. It's also hideously complex, and your position on this may depend on whether you think campaign finance laws make sense in the first place. (I'm assuming that VoIP can't be exempted from regulatory oversight because that would mean if you raise funds over an Internet-enabled phone you're home free.)

Feel free to reply to me or post your thoughts here.

Trying to squash free speech

Mary Hodder makes the important point that we shouldn't let bullies take away our free speech rights in the blogosphere.

Wal-Mart thought police

AlterNet: Wal-Mart thought police. The 'everyday low prices' superchain refuses to carry books and music that dare criticize conservative values.

I can't wait for Robert Greenwald's new documentary, "Wal-Mart," this fall.

Rathergate founder quits his blog

Kevin Cramer has quit his Rathergate blog because his employer, a Chicago area newspaper, doesn't want him critiquing the media in his personal blog.

I didn't agree with much of what Kevin wrote over the past year -- CBS's mishandling of Bush's National Guard records story was hardly on a par with the systematic misuse of federal agencies by the Nixon adminsitration that came to be known as Watergate -- but I agree with Kevin on this: a person shouldn't lose his First Amendment right to speak his mind just because he happens to work in a newsroom.

Media should ignore the propagandists

Terry Heaton of Donata has a very wise piece of advice for news organizations when confronted with the propagandists at the censorship-friendly Parents Television Council. The PTC is at it again with complaints about an use of the F-word during the Live-8 broadcast on ABC. The group wants the FCC to fine the network. Writes Terry:

This is not news and should not be reported as such. ...

"Earned-media" is PR speak for free publicity. It's calculated and manipulative, and the media is duplicitous in their formula. The more outrageous their claims, the more publicity they get, and the more publicity they get, the more money they get to grow their "business." And make no mistake about it, the PTC is very much a business. That it operates with a tax exemption simply means it makes money the old fashioned way -- through contributions.

I don't like the PTC. The goal is fine, but I detest their methods, and I'm intimately familiar with the corruptive nature of political power on the right.

If the press ignored them, they would go away. That's sad, but it's a fruit of the "professional" news and PR industries that I've written about so often.

Muzzling Chinese bloggers

At OJR, Mark Glaser looks at the cat-and-mouse game played by Chinese authorities and bloggers in China. The government has forced bloggers and Web sites to register, while MSN Spaces is trying to censor words like "democracy" and "freedom" in blog titles. But bloggers have the strength in numbers -- and quick and dirty work-arounds to censorship. Mark talks with several China Internet experts in a virtual roundtable.

"I'm not saying that [Microsoft, Yahoo and Google] should fight for freedom of expression. But they should at least refuse to collaborate on the Chinese censorship system. And that's what they are doing in China. When you censor yourself, your search engine or blog tool, you collaborate on the Chinese censorship. I mean it: You don't only comply with its laws, you collaborate. And there's no excuse for that...I believe that it is through dialogue that these companies will find acceptable solutions." -- Julien Pain, Internet desk officer for Reporters Without Borders

Scoble admits mistake on censorship

Robert Scoble, after a week of justifying Microsoft's assent in censoring Chinese bloggers, now admits he was wrong.

You're right (now), Robert. There, that wasn't so hard, was it?

Microsoft censors blogs at Chinese Portal

AP: Microsoft is cooperating with China's government to censor the company's newly launched Chinese-language Web portal, a spokesman for the tech giant said.

On Monday, Agence France-Presse, the French news agency, said bloggers were not allowed to post terms to MSN Spaces such as "democracy,""human rights" and "Taiwan independence." Attempts to enter those words were said to generate a message saying the language was prohibited. ...

China's estimated online population is 87 million, second only to the United States.

Will McCain-Feingold control political bloggers?

Roy Mark at Internetnews.com on McCain-Feingold, the FEC, and free political speech on the Internet.

Standing alone against Apple

Alex Beam in the Boston Globe:

Where is the outrage?

Apple Computer sued 19-year-old journalist Nicholas Ciarelli in January for disclosing trade secrets on his Apple news website Think Secret. ...

Ciarelli is accused of doing exactly what reporters all over America are supposed to be doing: finding and publishing information that institutions don't want to reveal. ...

Where are the always-vocal guardians of the First Amendment? Where is the American Civil Liberties Union? Where is the American Society of Newspaper Editors? Where, for that matter, is Harvard's Nieman Foundation?

Absolutely. Thank you, Alex Beam, for pointing out the mainstream news media's hypocrisy.

Apple wins ruling against online journalists

Breaking news: Apple wins legal dispute over published trade secrets. A judge on Friday ordered three independent online reporters to divulge confidential sources in a lawsuit brought by Apple Computer Inc., ruling that there are no legal protections for those who publish a company's trade secrets.

Mike Langberg in today's San Jose Mercury News pens an open letter to Steve Jobs: Apple should think differently about suit. Excerpt:

I strongly believe online journalists, including bloggers, deserve the same First Amendment protections as print and broadcast journalists, but you would hardly expect me to feel any other way.

Instead, I want to make a dollars-and-cents argument for backing down.

The lawsuits pose an imminent threat to Apple's most precious asset: the company's reputation as a hip underdog, a cool alternative to bigger and blander competitors such as Microsoft, Dell and Hewlett-Packard.

Absolutely. My trust in Apple has eroded quite a bit over this.

The gathering storms over speech

Dan Gillmor blogs on The Gathering Storms Over Speech. Dan echoes the concerns several of us have been raising over the past several days. Excerpt:

Apple Computer's disgusting attack on three online journalism sites, in a witch hunt to find out who (if anyone) inside the company leaked information about allegedly upcoming products, has taken a nasty turn. Too bad it's not surprising -- and journalists of all kinds should be paying attention.

A judge in California has decided that the sites don't qualify as "journalism" (AP) under state law and/or the First Amendment. By his bizarre and dangerous standard, I apparently stopped being a journalist the day I left my newspaper job after a quarter-century of writing for newspapers. (Note: At the request of lawyers for the sites, I've filed declarations -- here (104k PDF) and here (1MB PDF) -- saying that in my opinion these sites are performing a journalistic function. I haven't been paid to do so.) ...

We're moving toward a system under which only the folks who are deemed to be professionals will be granted the status of journalists, and thereby more rights than the rest of us. This is pernicious in every way.

Mass media journalists and their bosses should be leading the fight against what's happening to bloggers. I fear they won't, because old media typically refuses to defend the rights of new entrants until the threats against the new folks directly threaten everyone. But my former colleagues in Big Media should understand that when we distinguish among kinds of journalists, discriminating against some because they're not working for organizations deemed worthy (or powerful) enough, trouble will arrive soon enough for everyone.

In a world where anyone can be a journalist, we can't let government or Big Media decide who has the right to inform the public about matters of interest or urgency. The priesthood should be dissolving, not gaining strength -- yet rulings and legislation like these move things in precisely the wrong direction.

Apple confronts three bloggers before judge

The San Jose Mercury News reports on yesterday's court hearing in which Apple Computer is trying to wring the identity of sources from three blogger-journalists. Excerpt:

A Santa Clara County Superior Court judge heard arguments Friday in a case that ultimately could determine whether ``bloggers'' and other online publishers share the constitutional rights of traditional journalists to protect their sources.

Judge James Kleinberg did not issue a decision Friday after tentatively ruling one day earlier that Apple Computer was entitled to e-mails and other documents that might help the company determine who leaked information about an unreleased product code-named ``Asteroid.'' ...

Government to regulate blogs?

Mark Tapscott: FEC Commissioner Says Court Decision Means Uncle Sam May Have to Regulate Political Speech on the Internet's Blogs. Federal Elections Commissioner Bradley Smith claims in a CNET interview that his panel is ony a few months away from officially beginning the process of regulating political speech on the Internet, including blogs.

Mark points to this CNET article on The coming crackdown on blogging.

Bradley Smith: The real question is: Would a link to a candidate's page be a problem? If someone sets up a home page and links to their favorite politician, is that a contribution? This is a big deal, if someone has already contributed the legal maximum, or if they're at the disclosure threshold and additional expenditures have to be disclosed under federal law.

Certainly a lot of bloggers are very much out front. Do we give bloggers the press exemption? If we don't give bloggers the press exemption, we have the question of, do we extend this to online-only journals like CNET? ...

How about a hyperlink? Is it worth a penny, or a dollar, to a campaign?

I don't know. But I'll tell you this. One thing the commission has argued over, debated, wrestled with, is how to value assistance to a campaign.

I'm with the libertarians on this one. This is nuts.

Obscenity on The Hill

Over at MediaCitizen, Timothy Karr has some thoughts about the House's passage of the Broadcast Decency Enforcement Act.

Apple suit is wrong kind of different

Dan Gillmor at MacCentral: Apple suit is wrong kind of different.

A court victory for citizens media

New Jersey's courts, for at least three decades, have been among the most forward-looking in the nation.

Paul Alan Levy of Public Citizen Litigation Group today reports on yet another good decision coming from the New Jersey court system:

I want to call your attention to today's excellent decision of the New Jersey Superior Court, Appellate Division in Donato v. Moldow, upholding a citizen's right to host a forum for discussion of local affairs without being held liable for offensive postings made by visitors to the web site. available online here (PDF).

This is the case involving the "Eye on Emerson" web site, created by a resident of Emerson, New Jersey to discuss local affairs in the Borough of Emerson. Several public officials sued over allegedly defamatory and certainly offensive comments posted on a bulletin board that was part of the web site. The officials sued both the anonymous posters and Moldow, the creator of the web site. After failing to obtain enforcement of a subpoena to identify the posters, because the plaintiffs refused to submit evidence to support their claims, they dismissed those claims and concentrated their efforts solely on the web site host, whom they held responsible on the ground that he had facilitated the offensive comments by creating the discussion site, and had failed to comply with plaintiffs' demands that he take down every post to which they objected, or require posters to identify themselves.

In the decision released today, the Appellate Division agreed with the vast majority of courts that have addressed this question, holding that the Communications Decency Act, 47 U.S.C. section 230 protects all persons who host discussion forums, whether or not they are Internet Service Providers like AOL. The court also refused to treat the Good Samaritan provision of section 230, which precludes liability for good faith efforts to remove offensive material, as modifying the CDA's basic grant of immunity. Thus, allegations that Moldow was hostile to plaintiffs, that we was happy that plaintiffs were attacked on the bulletin board, or that he made negative some postings more readable by toning them down or that he removed praise but not criticism, all failed to undermine the claim of immunity.

A nationwide free speech zone

On his blog, Larry Lessig writes about an astonishing display of democracy and free culture in Brazil, where an entire nation is a free speech zone.

Why is Apple suing a Harvard student?

Mark Glaser had this in OJR the other day: Sue Different: Apple Threatens Insider Sites After Leaks.

"I use the same, legal news gathering techniques that any other reporter uses. It's worth noting that large publications and major newspapers frequently publish news scoops about Apple, but Apple has never sued any of them, and is instead attempting to silence a small online publication." -- Nick Ciarelli, the Harvard student who runs ThinkSecret and is being sued by Apple

U.S. companies' complicity in Iranian bloggers crackdown

Ken Smith of Nice, France, emails to add some information to the LA Times story I pointed to last night about the crackdown on Iranian bloggers. Of particular interest, he points to Hoder, an Iranian journalist based in Toronto whom I've cited several times over the years:

There’s an interesting side bar to the Iranian blogger story that was not mentioned by the [LA[ Times. Apparently, Iranian web sites are also being dropped and blocked by US companies. This is not the physical danger bloggers are facing in Iran, but a reasonable person might wonder why those with web sites opposing the current government in Iran and are supporting the US (mostly) are having trouble staying on the air.

Hossein Derakhshan is quoted in the Times article, but not his recent plea for help in getting news coverage about GoDaddy banning registration of domain names by Iranians and The Planet’s termination of accounts owned by Iranians.

His most recent posting says he is having trouble getting a visa from the French consulate. He is not yet a Canadian citizen and has only an Iranian passport. “I really have to go to this UNESCO conference on Freedom of Speech in Cyberspace which will be held in UNESCO headquarters in Paris, on 3-4 February.”

It might be interesting to pay a visit to his site. Scroll down to “Lifting embargo on free speech” where you will find his posting about GoDaddy and ThePlanet.

Iran tries to silence dissident bloggers

LA Times: Iran Attempts to Pull Plug on Web Dissidents. About 20 online journalists and bloggers have been jailed. Some say they were tortured and forced to publicly denounce their work.

Lawyer to defend ThinkSecret publisher

San Jose Mercury News: Lawyer to defend ThinkSecret publisher

A lawyer specializing in freedom of speech and the Internet said Wednesday that he will defend free of charge a 19-year-old publisher of a Web site facing a lawsuit over an article that revealed what Apple Computer has called trade secrets about a new computer.

Nicholas Ciarelli, publisher of the site www.ThinkSecret.com and a Harvard University student, will be defended by Terry Gross of San Francisco firm Gross & Belsky.

Gross said in an interview that Ciarelli and his Web site used proper news-gathering techniques and deserve First Amendment protection. He said he plans to file a motion asking a judge to dismiss the lawsuit.

Targeting free speech

Mark Jurkowitz in the Boston Globe: As journalists face the courts, the FCC clamps down, and secrecy grows, is the First Amendment under attack?

Jarvis takes apart Michael Powell

FCC chairman Michael Powell has an op-ed piece in today's NY Times — Don't Expect the Government to Be a V-Chip — in which he wonders what all the fuss is about with all these damn First Amendment advocates decrying the government's crackdown on "indecency" on television and radio

In response, Jeff Jarvis flays, sautees and flambes our national nanny and censor-in-chief in a smart riposte today.

Here is your big lie, Powell. You know damned well that these alleged "escalating calls" are the Xeroxes of the few. Milllions upon millions watch and listen the shows you censor. Yet, as I proved, only three prigs like you bothered to write letters complaining about a show that you found to be the most indecent in history, since you brought the biggest fine in history against it.

You are supposed to be judging all this according to community standards, according to the average citizen. ... But, instead, you are censoring according to the dogma of the few, the three. You are no different in that respect, as the editorial below says, from an Iranian mullah.

Says Dan Gillmor: "Just read it if you care about free speech in America."