Misunderstanding your Rights – Freedom of Speech and the Online World
By Bob Hubbard
Recently, events on several discussion boards, and online communities have left me shaking my head, yet again, in disbelief. It seems that too often, when someone is moderated on a discussion board, or mailing list, or chat room, that they start screaming about their “rights” being violated. As if they are somehow allowed to say whatever they want, whenever they want, without worry of censure, or repercussion. Often, these complaints bring up the American Constitution, more specifically the First Amendment, as the reason why these comments should be allowed. Other times, it is used as the reason why an online rant, vent or other such scree should be allowed, and the poster held not-liable for its contents.
I am going to cite one such comment here. I am not singling this person out, there have been many such comments made. Few however actually take the time to cite the actual Amendment.
“ Disclaimer: The following LJ entry falls under the first amendment of the U.S. Constitution. The Bill of Rights states, “congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” With that said, by clicking on the LJ cut, you understand that you cannot file any lawsuit or press any charges against me.“
Ok. Let us take this apart, piece by piece.
“congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof“
Translation: Congress will make no law saying you cannot worship as your believe.
“or abridging the freedom of speech, or of the press;“
Translation: Congress cannot deny you the right to say or print your mind.
“or the right of the people peaceably to assemble,“
Translation: Congress cannot deny you the right to gather together as long as you remain peaceful.
” and to petition the government for a redress of grievances.“
Translation: Congress cannot deny you the right to contact your representative and tell him about your problems.
Here is the misunderstanding. Congress, and by meaning, the Government, cannot do this. It does not deny private enterprise the right or ability to do this however.
If I, as a private enterprise, decide that I will not allow swearing, you may not swear while having dealings with my enterprise.
If I decide that I do not want you to discuss certain biological acts in the presence of my 5 year old, that does not “violate your First Amendment Free-Speech rights”.
If I decide that no discussion of Floppyology will be tolerated on this site, then, one may not discuss Floppyology here.
Too often, ill informed, poorly educated, and the outright stupid seem to think that the US First Amendment means they can say whatever they want.
It Does Not.
As I wrote several months ago in response to one such claim: “ We aren’t Congress. The people who scream the loudest about this right being violated, seem to constantly be those who understand it the least. Simply put, it doesn’t apply on a web board. The only rights as to what may be said on a private board, are the rights granted to you. Our rules are pretty clear on what is not allowed, and we allow a great deal of leeway as to what you may discuss and how. All we usually ask is that you do it in a friendly way. Before screaming at us about your rights being violated, you may want to take some time to actually understand just what rights you have, and the responsibilities they require of you.“
If I as a newspaper, or magazine, or book, or e-zine publisher refuse to publish what you wrote, I am not violating your 1st Amendment Rights. It may be censorship, it may not be. It may simply be that the publishers of said publication feel that your comments do not fit with their target. For example, an anti-war piece may be excellently researched, well formed, and well presented. But a very poor fit in a magazine about bunnys. The editor of “Bunny Weekly” would be within their own rights to not run your piece.
The First Amendment applies to US Citizens, and protects them from Government Censorship.
It does not protect you from Private Censorship.
It does not protect you in a foreign nation.
It does not apply to non-US Citizens.
It is designed, specifically to prevent the US Government, from denying certain rights to US Citizens. Period. It doesn’t stop a newspaper from pulling a story and it doesn’t stop a web forum from removing a post. Oliver Wendell Holmes said it best when he wrote “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic”. You have the right to free speech. You also can be held accountable for its use.
The writers closing comment “ With that said, by clicking on the LJ cut, you understand that you cannot file any lawsuit or press any charges against me.” is what is considered a “click-through” license. It does not magically forgive libel or defamatory comments. IF you write libelous and defamatory statements, regardless of any “click through licenses”, “waivers” or their ilk, you may still be guilty of libelous statements. You may still be sued by the wronged party. You may still be liable for damages. You may still go to jail.
This may look like I am targeting 1 individual. I am not. I have been dealing in the “online” world now for 20 years. For 5 years I have been running numerous online communities, full of interesting and wonderful individuals. There is sadly a trend it seems however, when someone is moderated, or suspended, or even banned from a forum or list, or simply doesn’t get their way, that they scream about their rights being trampled upon. Before one goes on about their rights being suppressed, one should take the time to see not just what those rights really grant, but also what responsibilities those rights demand of the holder.
Otherwise, you run the risk of not simply looking foolish online, but of losing those rights altogether in todays world of ever encroaching government abuse.
Bob Hubbard is an administrator of the popular martial arts sites MartialTalk.com and KenpoTalk.com. He is president of SilverStar WebDesigns inc., a web site design and hosting company specializing in affordable solutions for martial artists.