Posted: February 28, 2008 in Daily Rant

free_speech.jpgHello class. We’re going to look at some research on the 1st Amendment and point out some things that perhaps you’ve forgotten, or slept through in U.S. Government 101 or Internet technology class. Take good notes — there WILL be a test. This is a study of the protections that exist with regard to free speech in the public forum, the right to protest and the government’s role in the restraint of expression. John Stuart Mill couldn’t have possibly forseen the Blogosphere, but he certainly understood the principles that protect its free expression.The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.
~John Stuart Mill, On Liberty, 1859

Freedom of speech is the concept of being able to speak freely without censorship. The right to freedom of speech is guaranteed under international law through numerous human rights instruments, notably under Article 19 of the Universal Declaration of Human Rights and Article 10 of the European Convention on Human Rights, although implementation remains lacking in many countries. The synonymous term freedom of expression is sometimes preferred, since the right is not confined to verbal speech but is understood to protect any act of seeking, receiving and imparting information or ideas, regardless of the medium used.

pinocchio.jpgDiscovering truth

A classic argument for protecting freedom of speech as a fundamental right is that it is essential for the discovery of truth. This argument is particularly associated with the British philosopher John Stuart Mill. Justice Oliver Wendell Holmes wrote that “the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” In Abrams v. United States Justice Holmes also invoked the powerful metaphor of the “marketplace of ideas.”

Adoption and the Common Law Background

James Madison’s version of the speech and press clauses, introduced in the House of Representatives on June 8, 1789, provided: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.” The special committee rewrote the language to some extent, adding other provisions from Madison’s draft, to make it read: “The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed.” In this form it went to the Senate, which rewrote it to read: ‘That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances.” Subsequently, the religion clauses and these clauses were combined by the Senate.” The final language was agreed upon in conference.

The “simple, acknowledged principles” embodied in the First Amendment have occasioned controversy without end both in the courts and out should alert one to the difficulties latent in such spare language. Insofar as there is likely to have been a consensus, it was no doubt the common law view as expressed by Blackstone. “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . . . The question in every case is whether the words used are used in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

In his book, “The System of Freedom of Expression,” (1970) Constitutional Scholar and Professor at Yale Law School, the late Thomas Emerson states: “the four values [in the 1st Amendment] are (1) assuring individuals self-fulfillment, (2) promoting discovery of truth, (3) providing for participation in decision-making by all members of society, and (4) promoting social stability through discussion and compromise of differences.”

protest.jpg Speech Plus–The Constitutional Law of Leafleting, Picketing, and Demonstrating

Communication of political, economic, social, and other views is not accomplished solely by face-to-face speech, broadcast speech, or writing in newspapers, periodicals, and pamphlets. There is also “expressive conduct,” which includes picketing, patrolling, and marching, distribution of leaflets and pamphlets and addresses to publicly assembled audiences, door-to-door solicitation and many forms of “sit-ins.”

Because all these ways of expressing oneself involve conduct–action–rather than mere speech, they are all much more subject to regulation and restriction than is simple speech. Some of them may be forbidden altogether. But to the degree that these actions are intended to communicate a point of view the First Amendment is relevant and protects some of them to a great extent.

Free Speech and the Internet — from The Electronic Frontier Foundation

In countless ways, the Internet is radically enhancing our access to information and empowering us to share ideas with the entire world. Speech thrives online, freed of limitations inherent in other media and created by traditional gatekeepers.

Preserving the Internet’s open architecture is critical to sustaining free speech. But this technological capacity means little without sufficient legal protections. If laws can censor you, limit access to certain information, or restrict use of communication tools, then the Internet’s incredible potential will go unrealized.

EFF defends the Internet as a platform for free speech and believes that when you go online, your rights should come with you.

woman_computer.jpg Whether you are quoting someone on your blog, inserting clips of CNN into your own video news report, or using a song sample in a musical parody, your free speech often depends on incorporating and referencing other people’s creations as part of your own. The courts call this “fair use”, and strong legal precedents exist to protect the limited use of copyrighted material in your work when you do so for expressive purposes.

Unfortunately, copyright owners often object to these uses, and may look for ways to take them offline via the legal system. A copyright cease-and-desist letter to your webhost or ISP may be all it takes to make your online speech disappear from the Internet — even when the legal claims are transparently bogus.

In particular, copyright claimants are increasingly misusing the Digital Millennium Copyright Act (DMCA) to demand that material be immediately taken down without providing any proof of infringement. Service providers, fearful of monetary damages and legal hassles, often comply with these requests without double-checking them, despite the cost to free speech and individual rights.

The DMCA also puts anonymous speech in jeopardy; misusing its subpoena power, copyright holders can attempt to unmask an Internet user’s identity based on a mere allegation of infringement without filing an actual lawsuit or providing the user any constitutional due process.

Unless IP claimants are held accountable when they go too far, the situation for online speech will only get worse. EFF has been fighting to make sure copyright and trademark rights don’t trump free speech by litigating against inappropriate uses of the law.

Hello ebay & Church of Scientology. Incidently, EFF has rather long list of Scientology related articles, including a treasure trove of links to many of their legal cases. Many of the links you’ll find contain statements like, “The Electronic Frontier Foundation (EFF) today expressed concern over…” “We’ve been watching with concern the latest turns…”

Here’s a case about a blogger in San Francisco you’ll find interesting:

Spocko and ABC/KSFO, 2007

EFF warned ABC not to pursue its bogus copyright infringement claims against ‘Spocko’ — a blogger who sparked nationwide debate over a San Francisco radio station — and asked the media giant to retract its baseless threats.

The free speech battle began when Spocko posted audio clips of what he deemed to be offensive talk-radio rhetoric from ABC-owned and San Francisco-based KSFO-AM on his blog at In response, ABC, Inc. sent a threatening letter to the blogger’s hosting company, claiming that copyright law prevented Spocko from posting the clips. The hosting company responded by shutting Spocko’s website down, forcing him to move to a different provider. In a letter sent to ABC, Inc. Thursday, EFF warned that further false copyright claims could compel Spocko to take action to protect his free speech rights.

“Copyright law is not designed to silence speech that you dislike,” said EFF Staff Attorney Matt Zimmerman. “ABC and KSFO know that their legal threats were absolutely groundless. Their time and efforts are better spent explaining why they think Spocko is wrong, and letting the public decide, instead of resorting to thuggish legal tactics.”

For other legal issues regarding blogging, refer to the Electronic Frontier Foundation’s Legal Guide for Bloggers. The goal here is to give you a basic roadmap to the legal issues you may confront as a blogger, to let you know you have rights, and to encourage you to blog freely with the knowledge that your legitimate speech is protected.


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