Muir Woods. Photo by Brandt Luke Zorn.
We've all heard them. Smug, prissy little fanboyz and resmods chasing you off the forums of MMORPGs and virtual worlds and blogs and now the new social media sites, haughtily telling you that they are not required to enforce the First Amendment and you can go enforce your own First Amendment on your own page.
"Go start your own blog, this is a private company that can Do What it Wants" something is sure to tell you -- (and something I myself will tell anyone who doesn't follow my two simple rules here -- use an SL or RL name or bloggers' name and don't incite or cause harm in SL or RL.)
But...what does all this atomization mean for the public discourse, if many people can have little tiny First Amendment rights in their microblogs, but nobody can have them in a larger public space dominated by a powerful few? I'm concerned that as these new media services grow more huge and take up more of the public arena -- along with much of our attention and time as people online more and more -- we will be at the mercy of such "community managers" and "friends of devs" as Torley Linden (our latter-day Tigger) or others who will abitrarily decide which of their little friends should have freedom of speech (Torley banned me from the Linden blog, for example, for this thread saying the truth about Corey Linden's policy -- whereas he himself called my question "a good one". That's Linden Lab for you, nothing if not contradictory and arbitrary...)
I might limit my speech here on my blog (and my rules are more consistent and far, far less restrictive than on most blogs, where moderation is a norm and arbitrary banning very common) -- but I'm not a common carrier; I'm not dominating the public space; I'm not where everybody is 24/7. So it's my fervently-held opinion that the Lords and Masters of the Metaverse (i.e. Silicon Valley) who created all the new media and virtual worlds and blog services need to step aside and respect the public interest, and begin to accept the profound stewardship of the First Amendment which they inherited.
In fact, their inheritance of this august power requiring great responsibility is really accidental. Nerds started out writing solipsistic little ingroupie "web logs" about their own arcane coding activities; their tech blogs and even their virtual worlds were little proofs of concepts they fooled around with using their own money or VC capital -- not in any sense of greater purpose or mission to serve the public. The job of handling community speech is one they are thoughtlessy taking away from the august institutions of the deadtree variety like The New York Times or the Washington Post or The Nation or The Village Voice, but the culture they are infusing into this task comes from direct lineage to The Well -- where every turbulent discussion or unpleasant controversy can be discredited as "feeding a troll" or "flamebait" and where "killfile" is a necessary social-engineering tool applauded by users and devs alike.
The social media site Twitter is now consumed (well, the 2 percent who bother to suck up or pressure the devs and who follow the meta issues are consumed) about enforcement of the TOS against abuse, and "the community". I am so delighted that so far, developers Biz Stone and Ev Williams aren't caving to the supposed "community" pressure on behalf of a drama queen who appears not to be telling her entire story. (It turns out that she's community manager of Pownce, a Twitter competitor!). The correllary of this thread where I uphold the concept of not blocking track here is an important context -- there, the Twitter devs may cave, like the Lindens, and supply their mutinous and violent fanboyz threatening to leave them with Yet Another Tool to Resolve Social Conflict Unfixable by Tools.
It's a story so far having a good outcome because people can still reason with the devs and they still seem reasonable -- that won't likely last. Like the Lindens, they may stop talking to their customers and close their forums and put legions of resmods or automatic procedures in place to deal with the self-expressing hordes.
And the pressure to conform to the dictates of the self-described "the community" and notions of reputation and actionable "abuse" will remain strong, because it remains strong all over the Internet due to the anonymous culture of insolence best expressed in this video bit.
REMEMBER SECOND CITIZEN?
So where is the First Amendment supposed to live? Where are you comfortable having it live, and where are you willing to LET it live and just chose not to go there if you don't wish, rather than rabidly stomping and killing it? Do you make that distinction? (Paging Aldon Hynes.)
Everybody thinks it's supposed to be somewhere else, some place where you chase those people you don't like over to -- those tards, lamerz, trolls, goofs, obsessives, people with no lives. Where will they go? Well, you don't care, you say, because you want your "community" to be "nice" and not enable "anonymous fucktards" to "harass" you. We could all see where they went -- Second Citizen -- an anonymous, no-holds-barred cess pool that I was really glad I did indeed stop posting to it except for urgent needs to correct the slanderous record -- but now it's no more. It was sunk of its own weight -- when some of the most malicious on it began exposing private lives or threatening people in real life at their homes and driving people into furies with their sock puppets, it seemed to run afoul even of the very laissez faire policy of Mother FIC, because at the end of the day, he, too, had to face...guess what? The TOS policy of a private corporation. And that's just it. To obtain your First Amendment right in action, you have to go to *another* site. That site will have a TOS, too. It will have devs and mods and "the community" too.
PAMPHLETEERING AND 'FREEDOM FOR THE THOUGHT THAT WE HATE'
I was recently fortunate to attend a luncheon where Anthony Lewis, the dean of American columnists at the New York Times and a long-time campaigner for First Amendment rights, talked about his new book Freedom for the Thought That We Hate: A Biography of the First Amendment. Of course, in the days of the Pentagon Papers, people who were invoking the First Amendment wanted it for a leftist and liberal cause -- to stop the war in Vietnam.
I asked Lewis about today's life on the Internet, with newspapers dwindling in readership and ad revenue and with many adults spending most of their waking hours at work or in leisure online. The online space for most of us is dominated exclusively by private companies, not governments authorized to maintain the rule of law. Just where *is* the First Amendment going to play out -- where will it really be embodied? Can't more be done to get these private companies dominating the public space for discourse and people's attention and time be challenged to cease their arbitrary, overbroad TOS and uneven enforcements?
I'm not sure Anthony Lewis understood the full dimensions of just how much online does dominate -- but in fact, I'm not an unbiased source on this myself. The reality is, politics are still determined by television and face-to-face impressions, not by online life, the desires of the Dean -- or now the Obama campaign -- not withstanding.
But Lewis answered first by saying that blogs were a great thing. They represented the spirit of Thomas Paine. They are the lifeblood of democracy. In fact, blogs are part of a great American tradition, known as the "pamphlet". More than 200 years ago when America was young, just about anybody with a bit of money could go to a local printing press and get their thoughts printed, he said -- it took time for this freedom to be regulated and corporativized. Pamphlets like Common Sense flourished everywhere, and I could add -- to some extent, are still used even today -- every government office, high school, non-profit, corporation these days is awash in little brochures and pamphlets still meant to Instruct on things like Hygiene and Right Living.
When I complained that bloggers and forums commentators are at the mercy of arbitrary and arcane TOS rules that often make it possible to ban, mute, block, blackball people whose ideas are disliked (as I've been banned by Linden Lab and Terra Nova), he replied that many bloggers don't realize the sheer amount of work -- and legal back-up -- that goes into a story like the Pentagon Papers and don't show any where near the care in their reporting.
In order to produce the Pentagon Papers story, for example, the Times had to put multiple journalists working on the story with many different sources. They had to spend hours and hours of time with editors, staying up til all hours trying to discuss all the possible leads and implications. They had to constantly consult with their lawyers. They could resist the most fierce pressure from the U.S. government not only because of the First Amendment, but their willing to back up everything they were saying with skilled journalism and legal counsel -- and reams of paper.
And here's how I understood what he was saying: the sheer manhours and journalistic labour here are things that not only the average blogger can't afford financially, he often simply doesn't have the education or skills or connections to wield those resources in any kind of valid and competent way. Anthony Lewis, an eminently competent and sage person, of course, doesn't blog. He writes newspaper columns and publishes books -- and he is among the dying breed of New England liberals whose legacy simply may not withstand the onslaught of the Silicon Valley techlibs -- liberators for their own causes, oppressors for those they don't like.
And I could add further -- journalists didn't face so many people who had signed non-disclosure agreements with the very entities they were covering as we have nowadays, nor have they had to really contemplate the problem of the absence of a "firewall" -- one thing about these gentile old families who ran papers like the Times or the Wall Street Journal is they had a sense of public responsibility as *individuals* with a name and a place and a profile. They weren't faceless corporations.
So sure, it's a valid point that bloggers aren't investigative journalists, even if the ad revenues for newspaper, and the wealthy families of America, can no longer afford to keep these privileged creatures in fine suits and hotel and bar tabs. Investigative journalists are a good thing -- I don't care if they can be easily discredited as too rich or or too Ivy League, because these institutions built by those faculties are enduring and mean something. There is a reason why we didn't remain at the Thomas Paine stage -- the same reason why leftist experiments like CDS are engulfed in sectarianism -- the endless multiplication of subjectivities doesn't help to govern a diverse society reasonably and fairly.
COULD YOU GET A SKOKIE DECISION TODAY?
The First Amendment nowadays is in fact living a cramped, fearful existence. With all the speech codes against sexual harassment, racism, and being Negative About a Company, at work, school, government, or leisure (social media sites), the rules-abiding citizens are pretty much indoctrinated to mind their Ps and Qs. But an inintended backlash has taking place: mutant and mutinous strains of hate crop up all over in really virulent forms, with women in particular unable to blog the simplest thing without being called a "cunt". I learned a new word this week -- "overshare". And I feel about this woman's story the way I feel about the wonderful thing Andrea Dworkin once said about date rape. The punishment for having the misjudgement to get drunk and go in a frat boy's dorm room should be a hangover, not rape. Shame, but not humiliation and harm. Yet ironically, all this "oversharing" and its backlash covers up the paucity of an actual robust discourse. The paid posters like the author of "Exposed" isn't really a writer so much as an Internet weaver, recycling gossip to get page hits and substituting the "battle of who could care less" and "whatever, whatever amen" for meaning.
More than 30 years ago, the Supreme Court ruled in favour of the First Amendment, that Nazis in an extremist right-wing party could wear swastikas and march peacefully in Skokie. The ACLU defended their rights, and Aryeh Neier, the then-head of the ACLU, wrote a book (sadly now out of print), Defending My Enemy -- as a modern Voltaire. Jews, including Holocaust survivors were outraged; some pulled their financial and volunteer support from the ACLU though they were liberals. Neier himself fled the Holocaust as a child and lost much of his family, yet he felt that it was important to uphold the right even of hateful speech in a democratic society. It was a painful chapter that never went away -- as more offensive demonstrations against Jews and the State of Israel were mounted on college campuses and the ACLU could only continue to defend them. The ACLU, like a lot of other First Amendment purists devoted to litigating, didn't have a social movement's way of responding to nastiness by trying to set the tone. They don't wish to set the tone -- except on issues they care about.
So who will set the tone? But set it in such a way that tone is not a social good regulated like morality?
Today, the ACLU doesn't seem to be concerned at all about the problems posed by a public space of blogging, social media, and worlds utterly dominated by private companies. If anything, they embrace the new media because they find their like-minded leftist brethren there, and see it as a new way to promote their causes, as in this Freedom Blog campaign which isn't about freedom for bloggers, but is about using blogs to try to get more attention to a worthy cause like ending U.S. sponsorship of torture abroad.
Anthony Romero, today's ACLU leader, even came into Second Life this week to speak at the "progressive" talk show Virtually Speaking in SL -- whose owners simply view SL as one more "tool" without at all becoming engaged in the politics and rights issues of Second Life itself, which, like many private corporations, routinely violates any First Amendment concept *because it can* -- supposedly, although it aspires to "common carrier" status.
When you do get over to the Free Speech section of the ACLU's site, you'll find it chock-full of the "progressive" leftist causes we're familiar with from media -- new and old -- the misuses of anti-terror legislation and activities to suppress dissent.
Clicking on what at first might seem a promising section on "No Corporate Gatekeepers for the Net," you find that instead of being a page about how to end the tyranny of the abusive TOS, the concern about private property here is of the leftist variety -- raising the false flag of "a threat to the First Amendment" on the "net neutrality" issue which really ought to be called the "net congestion" issue and be about the "tragedy of the commons" as some resource-hogs like those downloading WoW patches slow down traffic for everyone else, creating issues for corporations that are not solved by waving a wand and saying "we need better technology with more bandwidth". Why, there's even a paragraph from Lawrence Lessig -- and of course, the problem of what happens when I'm simply muted off a big Silicon Valley talk show like News Gang for daring *gasp* to call a certain idea of Lessig's "Marxian" is not "on topic" for the ACLU.
Here's what the ACLU piously says about "Net Neutrality":
"The longer we continue without guidance in the form of proactive FCC intervention and/or legislative action, the longer millions of individual users of the Internet will need to contend with the whims of a few large corporate service providers. Systems put in place by government have permitted these private entities to control access to and communications across the Internet. The government must take positive steps to prevent these kinds of private speech restrictions imposed on Internet users."
Of course, this April fear-gram was unnecessary, as the FCC seems consistently to try to rein in these evil corporations which the ACLU so fears. This isn't about speech, but resources, and pretending it's about speech is like saying that the Nation is ruthlessly suppressed by evil corporations and the torture-sponsoring US government because it can't seem to muster enough Red Diaper baby subscriptions and more infusions from its leftist philanthropists to keep both its website and deadtree edition more in the public eye. Freedom of the press belongs to him who has one -- however, you can't force the government or a corporation to redistribute the resources for publishing -- like bandwidth -- unless you imagine that will have no effect on freedom write large for the whole society when government intervention becomes so intensive.
And in fact, that's what a lot of "progressives" and Obama supporters and angry forums-dwellers do want -- They want government -- or some big corporation they are all too happy to let stand in for government -- to rein in people they don't like with unpopular opinions. Taken to the extreme of their consequences, what they are advocating is even punishing them for "seditious libel" with heavy fines or jail time in some countries.
To be sure, the ACLU has a few token feints and thrusts against the behemoth that San Francisco TechLib culture has spawned through its various creations. They challenge the mayorlty of SF itself in their uneven handling of the Chinese Olympic torch walk:
"Michael Risher, a staff attorney at the ACLU of Northern California, who recorded a podcast about the ACLU’s negotiations with the city about the torch relay, reports that despite securing previous agreements with the city that it would not discriminate against protestors based on message, the ACLU’s legal observers witnessed police ordering peaceful protestors carrying Tibetan flags and signs to leave Justin Herman Plaza, the planned location of the closing ceremony. The police were also standing at the entrance to the plaza discouraging people carrying signs or even wearing T-shirts relating to Tibet or Darfur from entering, telling them that if they entered the plaza there would be ‘confrontations’ and that the police could not promise to protect them."
To go further, you'd have to ask why San Francisco did this -- and it has a lot more to do with the dependence of Silicon Valley on China, Inc. than it has to do with fears of public safety.
'THE VALUE OF ROBUST DEBATE'
Jack Meyers has an interesting report of the commencement speech given by David Rubin, retiring this month as dean of the Syracuse University S.I Newhouse School of Public Communications. ("Si" as people actually call him is the dev, so to speak, of the Conde Nast empire which includes the New Yorker). Here's what he says:
"Americans have lost sight of the value of wide open and robust debate. There is far too great a sensitivity to speech people think is offensive and too many Americans think criticism should be met with lawsuits. The First Amendment exists to protect offensive speech, yet this country seems to be offended by what each individual finds offensive."
He ponders various known ills like "media consolidation" and debt and ads and asks, "how is it that technology has dramatically transformed the media, yet all of this new media content has not done more to transform society for the better?"
And there he introduces a problem that will exacerbate further the initial problem he identified of oversensitivity to offensive speech -- ascribing a social role to the media, exhorting it to "make a Better World" -- something that I hope it will avoid doing, as if it falls captive to this or that vision of a "Better World," it will become unfree.
New media is really going off the deep end with these exhortations lately, with various jaded bloggers bagging on Scoble, for example, because he hasn't saved China, only reported on the earthquake first on Twitter. It's good to confront the bloggerati and A-listers with this sort of reality-check, but frankly, I actually don't WANT Scoble or Arrington or any of those characters to "make a Better World". I can't trust them to do that because we don't agree on what constitutes "better" -- if they think "better" constitutes nutty things like "Net Neutrality" as a "free speech problem".
What, then is the solution?
1. We need a new non-profit, non-governmental, non-affiliated organization -- not like the ACLU, which are rightfully consumed with more pressing issues like torture and themselves tending toward the left and therefore beholden to social media creators -- and not like Electronic Freedom Foundation which is also a creature of the left in its tastes and forms of advice. Nor do we need something from the right, like the Eagle Forum or even from the well-regarded establishment, whether a Freedom House or similar group funded in part with government and corporate funds.
2. This new organization has to exist on volunteer labour and individual donations and not seek any big infrastructure, so as not to become beholden to fund-raisers. It has to use the new media to become as light and portable as democracy is supposed to be come under them -- but work to protect the democracy they are rapidly conspiring to take away.
3. We need some really good cases for this organization -- or perhaps consortium campaign of other existing organizations. And that would involve suing some of these MMORPGs, VWs, social media sites that ban people. Oh, I realize "you can't do that"? All kinds of laws prevail making it difficult, in fact. But you have to try. You have to start. You have to get them feeling a sense of accountability.
4. The FCC should be challenged to take this issue up more, now that they've been bullied into siding with various extremists and interest groups bagging on Comcast for net congestion management. You can't achieve big victories here -- what might be a reasonable start is to get the FCC to enforce a more limited concept like non-arbitrary enforcement of a company's TOS -- to try to call to account those companies that behave in a capricious and whimsical manner even on their own TOS.
5. Better yet, taking on the whole territory of the TOS is an urgent matter -- with all its existing arbitrary, overbroad, and abusive "no reason or any reason" sort of language that enables gangs of thugs and ruffians incited by fake damsels in distress to come banging on devs demanding "enforcement of abuse clauses". The clauses themselves are abusive and the "community" shouldn't be enabling their enforcement by torch-bearing.
Meanwhile, I'm heartened that at least rich and affluent and connected bloggers with money to burn on lawyers and court cases are trying to keep some of our freedoms open -- as you can see from this piece in the Times. The rulings in favour of tell-all bloggers who expose abusive spouses and then later get sued by those spouses for their "oversharing" aren't swaying judges reviewing First Amendment protections.
Practically, I don't see an immediate viable way to wage this necessary battle except for people like me to do what they are doing, pushing the limits in person.