Distinction now between way in which speech was primarily
regulated before the digital age and new ways of regulating. Old school is still around; new school
techniques are all aimed at digital infrastructure. Hardware, institutions: payment systems,
search engines. Large set of practices
and institutions. Old school target is speaker/publisher; new school target is
elsewhere. Old & new school
supplement each other. Edward Snowden:
they bring down an airplane to try to catch his body; British version of NSA
detains Glen Greenwald’s spouse as old-school courier; Chelsea Manning’s
military imprisonment used to make an example.
New school techniques: variations on the idea of prior
restraints. Collateral censorship. When you have a few media companies, state
can own them all; can license them; can use family/political ties to control
them. Not that difficult for state to have continuous relationships with them—a
global phenomenon. But what if you multiply the numbers? Traditional strategies
of control have to be changed—so you go after platform/conduit instead. Platform has different incentives and will
overblock/censor the individual speaker.
Digital prior restraint. Not the Pentagon Papers, but prior
restraint also covers licensing/control systems, many administrative. Prior restraint is when the state restricts
first, gives permission later. Deliberate overbreadth. Low visibility. Shifts burden of inertia and action. Force people to identify themselves,
promoting self-surveillance. Filtering:
direct by gov’t or inducing private parties—deliberately overbroad, no hearing
before the vact; very low visibility, shifts burden of inertia to you. Domain
name seizure is the same way.
SOPA/PIPA were designed to reorient how IP rights were
enforced online. Ingenious new
techniques for getting at pirates—many had digital prior restraint, such as
AG’s ability to allege that a foreign infringing site (defined to include some
nonforeign sites) exists and get an injunction.
AG could get ex parte order and go to search engines, advertisers,
payment systems requiring them to block/not do business with the site. Break the internet (don’t resolve the DNS):
that’s a prior restraints. Private prior restraint: if someone alleged that a
site was dedicated to the theft of IP, that private person could send a letter
to advertisers and payment systems. Ex
parte and not even in front of a judge.
McCarthyism: public/private cooperation to create
blacklists. You can do this in the new school too. Your ISP/infrastructure
provider can provide the gov’t with data access; gov’t can give them immunity
for that. Can give immunity for
collateral censorship. Can give immunity
for blacklisting people w/whom you refuse to deal.
New form of soft power, in which gov’t can’t actually go
after Wikileaks for a number of reasons. But it can suggest to others that they
not deal with Wikileaks.
Finally: national security letters. Gov’t has to cooperate with/commandeer
private structure of free speech to surveil—so infrastructure of free speech is
merging with infrastructure of surveillance.
National security letter comes with a gag order. Not even before a judge
ex parte: the gov’t just approves it through the FBI.
In the courts, it’s proven difficult to water this down. If
you applied even Friedman v. Maryland
(the rules for dirty pictures), it wouldn’t work because courts couldn’t handle
the 1000s of NSLs each year. Most times Google and Yahoo don’t want you to know
how many NSLs they receive, because that makes them look bad. Also, NSLs largely affect overseas customers,
which is bad business for them.
Chilling effects: when you combine prior restraint with
surveillance state, in most cases the gov’t would like its surveillance to be
in the background; gov’t doesn’t want you to get anxious or stop talking or
travelling with your GPS enabled phone.
Dawn Nunziato: Cooperation and informal controls are
weakening traditional constraints.
Optimistic story to be told: Regarding prior restraints, 1A doctrine is
still efficacious, esp. compared to Western democracies. Our 1A precedent/values are increasingly
informing int’l free speech protections and industry self-regulation—industry
players are resisting some of the cooptation. Not focused on national security
issues; more on content regulation.
CDT v. Pappert 2004: Penn. law requiring ISPs to block/take
down content on/accessible through their servers, on receipt of ex parte
judicial order on submissoin by AG of probable cause that content was child
pornography, or on receipt of informal notice from AG that content was child
porn without court order: if not taken down after court order, ISP could be
held criminally liable.
Danger of overblocking.
Despite informal nature of requests, despite illegality of child porn,
despite role of private parties, despite probable cause and judicial
determination, court found illegal prior restraint. Ex parte/no requirement that
publisher/distributor receive notice or have opportunity to be heard.
Informality of notice didn’t save the Act. ISPs didn’t want a court order; would prefer
informal notice, but those were still subject to constitutional scrutiny. Earlier case: Bantam Books involved informal notices sent by admin agency to
publishers with request for cooperation w/commission to protect use. Still unconstitutional prior restraints if
unaccompanied by requisite const’l safeguards.
Similar result where public library filtered to block access to child
porn, porn, materials harmful to minors: Mainstream
Loudon. Even ALA v. US upholding mandatory filtering as condition for library
funding rested on ability of adults to have filters removed, per Kennedy and
Breyer (concurrence whose votes were necessary to result).
1A is still effective by comparison to other democracies. In
UK, Internet Watch Foundation is private entity w/responsibility for
maintaining blacklist of websites w/child porn, hard core/extreme porn; used to
be responsible for racial hatred sites.
Since 1996; blacklists affect 99% of internet users, because ISPs are
required to check against the blacklist. No judicial supervision, notice, or
opportunity to be heard by affected websites or users. David Cameron plans to impose mandatory
nationwide family friendly filtering by default on all computers by end of 2014;
Australia has also made efforts in this regard.
UK’s mandatory filtering blocked an award winning British sex education
site, BishUK.com, as pornographic without notice.
US prior restraint law is influential—European Court of
Human Rights is actively borrowing.
Yildirim v. Turkey, 2012: found violation of European Convention Art. 10
in Turkey’s blocking of Google Sites to block an anti-Turkish Google Sites
page: borrowed Bantam Book’s language
of prior restraints being presumptively invalid. 2011 report of UN Special Rapporteur on
freedom of opinion and expression builds on key 1A elements.
Sullivan removes barriers that disproportionately discourage
intermediaries from carrying others’ speech, but no ISP would risk Sullivan
style liability--§230 was necessary.
Protects dontdatehimgirl.com, which allows critical statements about
men; JuicyCampus. Veseley v. Armslist,
2013: should protect arms sales, though several Congresspeople wrote that this
wasn’t what they meant. We don’t need to
worry about this aspect of Sullivan’s legacy being underprotected or
underenforced.
Private speech intermediaries are making efforts to resist
cooptation and increase visibility and transparency. E.g., Google’s resistance versus “Innocence
of Muslims.” Industry group: Commit to
respect free expression. Google’s
Transparency Reports. Microsoft and
Yahoo have also begun to detail how they respond to gov’t requests to take
down/censor content. Twitter too
publishes on Chilling Effects.
Yochai Benkler: Sullivan
is a realist opinion. A venerable common law rule of private law is a rule that
regulates speech. Less virulent member
of the line from the embarrassing Shelley
v. Kraemer, which exploded state action.
(Carol
Rose has a great article explaining why she thinks this isn’t accurate.)
The thing we care about w/regard to speech isn’t just about gov’t officials
deciding who should speak, but also about private law adjudication. It’s that realism that suggests that the 1A
may not be where the future of freedom of expression lies.
For example, there’s no prior restraint, but the single most
linked-to post about the problems of SOPA/PIPA on the single most linked-to
website (Techdirt) was unavailable for search on Google for a month because it
was included on a list of 1000 links sent to Google as infringing under the
DMCA. Took weeks for Mike Masnick to
figure this out. That’s not about law
and the 1A, just new school regulation.
All individual freedom can only take place in systems of
affordances and constraint. The
phenomenon is ubiquitous. If you read US v. Jones, you see that protection
from state surveillance in the past is primarily cost/inefficiently in an
environment not ubiquitously impregnated with sensors. Both the new capabilities and the new
constraints are functions of the disruption of the older model.
Crawford starts out by asking what the basis of free speech
is. She focuses on the negative—use to constrain regulation—but underlying move
is to retain architecture where bottleneck doesn’t have control. Common
carriage becomes more important to free speech than the 1A, except insofar as
1A gets in the way. Ammori: the source
of freedom he describes is the organizational capacity of individuals
acculturated in a certain mindset about the relationship between tech and
freedom. This isn’t new: NYT and Wash. Post had the same model, allowing
familes committed to model of professional journalism that couldn’t sustain the
tyranny of the margin—used that model of journalism/professional
norms/corporate law that allowed dual stock structure, not the 1A.
US is influencing all the systems of public/private
cooptation and collateral censorship through the USTR—trying to push them
through in ACTA; requiring them in bilateral trade agreements. SOPA/PIPA protest ripples through
Europe/blocks ACTA. Ammori played a
central role in that network. It’s that
set of systems and their interaction that matters.
Rise of mobile communication as a risk to speech. Speech isn’t
protected so much as implemented these days. Open standards, open software,
etc. Once you move to proprietary mobile handset, Apple can exclude a game that
mocks its labor practices, an app for reading Wikileaks cables, etc. Move from distributed storage to cloud =
points of intervention and control for soft power. This isn’t a self conscious gov’t move to
change controls, though that exists too, but rather a change in the market
dynamics of the tech that is shifting us for reasons of convenience and cost to
an infrastructure that is vastly more regulable. That’s a central threat to
freedom of expression without touching the 1A, and it’s more important as a
threat than all the doctrinal questions, which are marginal.
A young woman who wants to express herself about sex through
how she dresses: the threat of being killed is vastly more of a constraint on
free speech than even an authoritarian gov’t, simply because of the closeness
of surveillance. To say that there’s an improvement in free speech when the
gov’t seems more isomorphic with the US seems to miss the point.
Theory of freedom generally, not just free speech.
Overlapping systems of constraint and affordance that are necessary to allow us
to act autonomously while also providing others with channels of power. Essence
of freedom is capacity to read these systems and figure out how we can bob and
weave between them. That’s where freedom
is. Any focus on one to exclusion of others risks blinding us.
Mark Tushnet: If this is about realism (Shelley v. Kraemer), many of these things seem doctrinally
manageable. Getting back to Shelley
on state action isn’t easy, but might be done.
Post-New Deal vision was a vision of statism, which is fine
for Crawford and problematic w/r/t the surveillance state, but the realist
resolution of that tension was to say, yes we are statists; the location for
the discussion of these conflicts is through ordinary politics, not
constitutional ajudication, and that includes politics about the structure of
politics itself.
Q: wouldn’t we need to move away both from state action and
the model of an individual challenging a specific gov’t action.
Balkin: yes. Many of these things could be dealt with by
adjusting the prior restraint doctrine. But many of today’s problems are either
problems of regulatory structure (if designed a certain way, no 1A problems
arise) or a deeper set about the way in which the tech develops (no 1A right to
not move to cloud based computing; no 1A right not to develop smart
phones). Congress isn’t even the right
venue for that latter discussion.
Benkler: we tried to force courts to consider copyright/DMCA
in 1A terms. The refusal had massive implications for the architecture of free
speech, but the courts didn’t realize that.
If we accepted that the province of law is much narrower than initially
thought, and that interaction between 1A and people is always playing a chess
game on multiple boards, that’s a different kind of lawyering but doesn’t make
the 1A irrelevant.
Benjamin: if we’d never had a 1A, would we think about
Balkin’s examples differently? Would we
see them as ordinary political problems? How do the British think about these?
Balkin: distinguish between a text of the 1A and the power
of judges to create implementing doctrine. Modern 1A doctrine is a product of
the second half of the 20th century, created in short bursts in the
1940s and around 1976. Before that, the 1A is mostly norm-based, common law
understandings. Fights over the post office, labor unions, abortion, etc. were
political fights. We could talk about free speech traditions, but done through
politics. British too had a principle
against prior restraint. We are returning to an earlier q—how to build out an
infrastructure (like railroads and telegraphs) that supports free speech,
without the courts. Irony: Sullivan
represents the moment at which we hand the 1A to the courts but once again it
looks like we will have to resolve it through politics.
Mark Tushnet: we know what the British would do. The common law set of entitlements created by
background rules of contract, property, and tort can be adjusted in the
ordinary way by thinking about the purposes sought to be achieved, subject to
legislative revision. Common carrier
idea is exactly that. Direct
consideration of the background rule.
Q: if action is moving in direction of private restraints on
speech being more concrete than public restraints, then we might move to
legislation to force open private channels. How well is 1A doctrine suited to
evaluating those sorts of situations, where gov’t is operating on a private party
w/overarching purpose of enhancing speech?
(I wrote an
article about this.)
Nunziato: that’s the discussion we had with Crawford.
Benkler: greater capacity of some private and some public
actors to use this system in ways that may disturb us.
Balkin: so much more likely that 1A will be used to prevent
reform in the next 20 years.
Q: ECHR is active here—privacy in the cloud. Member States must adopt legislation to
protect data in the cloud. Net
neutrality exists in the Netherlands, and the main argument there was Art. 10
of the ECHR, with positive obligation to protect freedoms. Do you ever envision a future in which the
traditional negative freedoms, which are very much limiting, will transition
into a mix of negative and positive obligations?
Balkin: guesses that it could only happen through the
development of judicial restraint. There
are some exceptions—public forum doctrine as a doctrine of access; limited rights
of access to traditional court proceedings. But US free speech tradition has
protected positive access through custom, legislation, and institutional
reform.
Ammori: would our answer be different if we thought we could
win more cases in the courts? He’s all in favor of forum shopping.
Balkin: courts that were more sympathetic would dismiss
various challenges.
Ammori: what about surveillance?
Balkin: is it possible to use negative traditions to protect
the environment of free expression? Yes, we missed an opportunity and went
instead only to the 4th Amendment, but we could use freedom of
association to protect against surveillance.
Benkler: Lost disastrously in copyright in the White
House/Congress in 1998; lost disastrously in the courts; then moved to
culture/technology. The answer is consistent with a multisystem view of a
substantive commitment to freedom and a pragmatic catholicism about which
system to work in given openness at particular historical moment.
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