Itâs rarely what you think it is.
No, it doesnât. Not even close.
Free speech is an interesting concept in general, especially in turbulent times. Take it to the internet, and things get even more âinterestingâ.
Yes, there are rules and even laws, but itâs an incredibly complex issue.
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The Internet and Free Speech
The internet is not an entity, and there are no rules or laws that span it completely. Actual laws vary, often dramatically, from locale to locale. Free speech, when afforded by law, does not mean you have the right to use someone elseâs venue for your message. Their platform; their rules. You can, however, set up your own platform (website, newsletter, magazine, streetcorner). The First Amendment only covers what the U.S. government can or cannot do, but does not prevent, say, website owners from setting up more restrictive rules of their own. Regardless of the situation, free speech does not guarantee you access to any particular audience, or any audience at all.
My big fat caveat
I am not a lawyer. This is in no way a substitute for legal advice from an attorney or other source better versed in all the nuances of free speech. If you need real, honest legal advice, then get a real, honest attorney1.
My discussion here represents only my understanding of and opinions on the assortment of issues related to free speech.
I could be wrong. I donât think I am, but I could be. (Which, by the way, applies to everything Iâve ever said or published. đ )
The internet
Letâs start by acknowledging that there is no such entity as âthe internetâ. Internet is just a term that describes a vast global network of interconnected computers.
It has no laws or rules.
Even the protocols, formats, and various ways devices interconnect arenât governed by enforceable laws. A more appropriate (if sexist) term would be âgentlemenâs agreements.â Adhere to this specific protocol and youâll be able to do X on the internet. Change that protocol (which can be done) and X wonât work.
Just look at all the cross-browser capability standards to display a webpage and youâll get an idea of those agreements at work. Or not.
But there are laws
There are laws that govern aspects of how we communicate with each other, including how we do so over the internet.
One problem is those laws are not global in nature. In reality, theyâre different for each of the hundreds of countries in which internet users live.
As you might imagine, countries rarely agree on everything, and exactly what youâre allowed to say is one of the ways they vary. In some countries, itâs illegal to speak ill of the ruling monarch. In others, itâs only illegal if you threaten them. In still others, you can pretty much say what you want.
The issues, concepts, and legalities surrounding the internet and what can be done on it are no different. Some countries try to strictly regulate the internet used within their borders; others, not so much. Many try to apply laws that were written before the internetâs existence to current internet-related issues and experience varying degrees of consistency and success.
In short, thereâs a bucket load of laws that apply to what happens on the internet. Unfortunately, itâs a bucket load of inconsistent, incomplete, and often contradictory laws that may or may not apply to any given situation you might encounter, and even then, only if it rises to the level of some government agencyâs attention.
To the issue at hand: not all countries have free speech provisions.
Just because you live in a country that affords free speech as a right doesnât mean that the service youâre using in that country has the same guarantees. Depending on the location of the company, the individual who owns the site, or the hosting company that provides the server space and network connection, there may be no such thing as any kind of free-speech guarantee. Period.
Free speech is probably not what you think
Letâs say I run a website. 
To keep things simple, weâll say that you, I, and the website are all within the United States.
You take issue with something I post on my website, and you say so, using the comment function on that website.
- I am not required to publish your comment.
- If I do happen to publish it, I am not required to keep it published.
- I can choose to edit your comment; in the worst case, I could make it say something other than you intended.
This has nothing to do with your free speech rights. If anything, I expect it has more to do with my rights as the website owner. I am not required to provide you a place for what you want to say, no matter what you say or how you say it.
But: you can set up your own website where you take issue with me. I can do nothing about that.
Thatâs what free speech really is, at least to me: the ability to set up your own pulpit and say what you want. Free speech does not mean you have the right to use someone elseâs venue for your message.
And it doesnât make a difference that you canât reach my audience to make your point from your site. Freedom of speech does not guarantee an audience. If you get one, fantastic. I have no right to reach them via your venue, either.
That pesky first amendment
One of the things people like to throw around is the first amendment to the United States Constitution, (often in the context of having their first amendment rights violated). Typically, they are incorrect.
The amendment starts with the phrase, âCongress shall make no lawâŚâ. If no law was made, or you werenât arrested, or a court decision wasnât involved, then the first amendment doesnât apply. The wonderful webcomic XKCD explains it beautifully.
TOS, AUP, and common sense
Thereâs more to this than the whim of the site owner. Many will have thought through what their site is about and what they want it to look like. They may well have set up some rules or guidelines ahead of time.
Most websites publish âTerms of Serviceâ (TOS) about posting information. Be it writing your own blog on a blog-hosting service, making posts in a forum, or leaving comments on an article, by participating, you either explicitly or implicitly agree to abide by those terms.
Donât like the terms? Donât post there. Go somewhere else. Violate the terms? Expect to see your comments, posts, or blog disappear.
Itâs not your site. If you want to play there, you must play by their rules.
Similarly, if you make use of a hosting service or something similar to set up your own website, service, or blog, youâll likely be faced with an âAcceptable Use Policyâ, or AUP. As the name implies, when you use someone elseâs services â even if youâre paying for the privilege â youâre required to abide by what they consider to be acceptable use of their services.2
And regardless of where you post or host and what their rules are, there remain things that are simply wrong to say or do â at least morally, and perhaps legally. The classic example is that itâs not within free speech rights to randomly yell âFire!â in a crowded theater3. Where free speech guarantees are available at all, they donât trump the safety of others.
Making your point
âSo, if website owners can just randomly delete my comments or posts, how am I supposed to make my point to the people who are there and need to see it?â
You may not be able to. Whether youâre on the web or using another form of media, thereâs nothing about human discourse that guarantees you get to make your point to the people you think need to hear it. Thereâs certainly no legal recourse that Iâm aware of.
Except⌠(and this is where you really need to talk to a lawyer) âŚ
Defamation, slander, and libel are all terms that have very specific legal implications. I wonât try to delve into that. But depending on where you are and your specific situation, information on the internet that intentionally lies about or maliciously harms you may be one thing on which you can act. Like I said, get an attorney.
It even happens to me
Iâve been banned from one discussion forum (that I know of).4
And as unfair as it is, that site owner had every right to do so. In many ways, it really sucks, because it prevents me from communicating with the other users of that site.
But it simply must be this way.
Consider the alternative: that Iâm somehow able to force that site owner to let me back in. If there were a mechanism to let people force their way onto sites that others own and control, that would have a pretty chilling effect on the internet as a whole. In fact, itâs likely that sites like Ask Leo! wouldnât exist. Malicious entities would use that ability to their own ends.
As distasteful as it is, the website ownerâs ability to pick and choose whom they allow on their site is also an important form of freedom of speech.
Even if theyâre wrong.
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Podcast audio
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Footnotes & References
1: No joke intended. Get a real one. Get an honest one. Theyâre out there.
2: Perhaps the easiest way to explain AUP differences is that some hosts allow you to post porn, while others do not.
3: Unless, presumably, there was an actual fire.
4: Corgi-related, of all things. Go figure. Just goes to show that itâs not always politics. In this siteâs case, I take my ban as a badge of honor. đ
http://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater In some cases shouting fire in a crowded theatre may be prohibited even if there is an actual fire. Weird.
And wags would say that its illegal to shout Movie in a Fire Station⌠lol
Only a government authority can violate your First Amendment rights, because only the government can grant or protect those rights in the first place.
Iâm not sure thatâs 100% correct, but regardless â as soon a you say â1st amendmentâ you restrict your statements to the United States only â the rest of the planet may have very different rules and laws, or none at all.
Excellent comment. People need to realise that the internet is global and therefore cannot be defined by the laws of any one country.
Actually, the first amendment says the Government canât make laws abridging free speech. Says nothing about what a person/company can do. So even if the web site is in the US, it still can delete your comments for any reason.
Exactly. In _my_ house, _I_ set the rules (OK, my wife does). Your First Amendment rights do not apply. You do not have the right of free speech in my house. The government canât sanction your speech, but I certainly can.
Good article: Itâs important to know the difference between a right and an entitlement: when you speak/post someone elseâs patch, you have an entitlement to do so, not a right. And that entitlement can be abused and thus withdrawn. There shouldnât be an argument.
Free speech does not include the entitlement to be heard.
Yelling âfireâ is a metaphor used in free speech discussions, but perhaps a better metaphor here is private property. I may allow a contractor to place a sign in my yard, âRemodeling by Leo!â or maybe a politician, âVote for Leo!â, but if someone places a sign, âI think Leo is wrong, and this house is uglyâ, then I can take down that sign. My house, my rules.
Exactly! The U.S. Government is not allowed to pass a law that says, âYou may not say that Leo is ugly,â but if you stand on Leoâs front lawn and say it, he has every right to eject you.
The analogy I like to use is âMy house, my rulesâ. If a guest in my home uses foul language in front of my children, I have the right to demand they either clean up their language or leave. Same goes for websites.
If I were to post vulgarity and hate speech on this message board, I would be within my legal rights to do so BUT Leo would be within his legal rights to delete my comment and ban me from posting any further.
(Of course, this is simply my laymanâs understanding of the law)
This is a very good article. I sort of have issues with some free-speech rights. For example, the right for some sites to just flat-out reject comments even if theyâre clearly not spam. This has happened to me a few times in the past. I honestly have to wonder if itâs really that my or othersâ comments are for whatever reason flagged as spam, or if the website owners are just not wanting to publish said comments. Definitely agree though that personal attacks should not be tolerated on any website!
Well, again that has nothing to do with free speech. Itâs totally in the website owners right to do whatever he or she wants to with a site. Rejecting comments for no reason at all is completely permissible. I agree itâs bad form without a reason, and is often misused as part of some personal agenda or vendetta â but itâs all totally legal.
The First Ammendment is a FEDERAL document. The reason it is illegal to scream âFireâ in a theater is because it is a STATE law. States are NOT bound by the First Ammendment because the states are not âThe Congress of the United Statesâ.
Actually the 14th Amendment extended the Constitution to limit states from abridging Bill of Rights protections.
Amendment XIV
Section 1.
If you want to see a current example of this, look at the 2nd Amendment controversy which rages every election cycle. (Election cycles occur every year beginning Jan 1 and ending Dec 31 đ )
The First Amendment specifies Congress, in other words Congress is the only body that can break it.
So, youâre saying the 14th Amendment doesnât extend that protection against states when it explicitly does?
This is a little off subject, but I hear about many public figures who receive death threats. I have never heard about anyone being prosecuted for sending death threats. Is that free speech? Isnât that equivalent to yelling âfireâ? Thanks for listening.
Again, not a lawyer, but my guess is that it depends entirely on the situation.
Yes, people can be and have been prosecuted for making death threats. For just one example, hereâs Californiaâs take on the matter: https://www.shouselaw.com/criminal_threats.html
Yes, some people have been prosecuted for issuing threats. Search for âMark Feiginâ as an example.
Not sure this is true, but I was told saying âI would like to beat you upâ vs. âI am going to beat you upâ, one is legal the other not.
It is a subtle difference, but it is different. The later is a threat, the former is an opinion.
âI have never heard about anyone being prosecuted for sending death threats.â
Oh, but they have. You need to brush up on your research. Try threatening the president of the United States and youâll get a good dose of reality.
One arguable exception about the right to suppress contribution is sites that
â sell goods,
â post reviews of the goods they sell, and
â post ratings based on the average favorability of the reviews.
I have encountered two major retail sites, and there are probably many others, that suppress unfavorable reviews of their products. Consequently, their listings give false statements about the quality of their products. In that case, suppressing unfavorable comments is false advertizing.
While that all may be true, it has absolutely nothing to do with âfree speechâ. Sites are allowed to run however they please. Where they lose is when people realize whatâs happening, and then lose trust.
âI can choose to edit your comment; in the worst case I could make it say something other than you intended.â
I think this may be incorrect. If, for example, you edited a comment of mine to falsely attribute hate speech to me, I might be able to sue you for libel. That could be true even if your terms of service reserved the right to complete discretion in editing comments. Itâs often the case that contract clauses that abrogate legal rights are unenforceable.
Good point. Ref my statement that I am not a lawyer. đ
Thank you, Leo, for pointing out the obvious. Most Americans are ignorant when it comes to âthe freedom to speak freelyâ. The fact of the matter is that âfree speechâ is protected ONLY when the government actively attempts to stifle your speech and even then there are exceptions, especially when those âexceptionsâ deal with the security of our nation.
There is no âfreedom of speechâ when such speech occurs outside the government, such as with privately owned businesses. If I own a business, and you are on my property, you have no right to speak freely unless and until I grant you that right. There is no freedom of speech when what one says is meant to incite violence and in some jurisdictions, hatred. I could go on and on and on but it wouldnât change the minds of people who believe that they have the right to say anything they please, at anytime and in any setting.
Exactly â the web site has the right to forbid just about anything they feel like. There is no free speech issue.
Hey Leo, Good article. sounds like some of the ârulesâ you statedâŚ
âYou take issue with something I post on my website, and you say so, using the commenting function on that website.
I am not required to publish your comment.
If I do happen to publish it, I am not required to keep it published.
I can choose to edit your comment; in the worst case I could make it say something other than you intendedâ
would be appropriately applied to sovereign countries. Sometimes it doesnât seem that way. By the way I live North or the 40th parallel.
What I find as an amazing display of ego are the people who come to an event that someone else is running, try to block that person from being heard by shouting or other annoyances, then claim that their right to free speech is being violated.
Letâs go back to the âshouting âFire!â in a crowded theaterâ argument. The Supreme Court decided years ago (please donât ask me to cite the case! This comes from a news reporting class I took 30 years ago) that speech that constituted a âclear and present dangerâ could be abridged. The majority opinion, written by Justice Oliver Wendell Holmes, specifically used the example of shouting âFire!â in a crowded theater. Of course the opinion assumes the theater isnât actually on fire.
âWhat are the Internetâs rules about Free Speech?â
There arenât any.
How do you get banned from a Corgi site? Do you like cardigans and the group administrator likes pembrokes?
Leo:
âI am not a lawyer.â
The correct âInternet-speakâ for this is âIANAL.â : )
âLetâs start by acknowledging that there is no such entity as âthe internetâ. Internet is just a term that describes a vast global network of interconnected computers.â
And Iâll âcontinueâ by saying that I disagree with this (and what it actually has to do with âfree speechâ in the first place is more than I can imagine. As fine a non sequitur as anything Iâve ever seen). That âvast global network of interconnected computersâ needs a name, and that ânameâ is, âInternet.â And, by extension, the things you find on that global network can legitimately be called a part of, or residing on, âthe Internet.â So, yes, Virginia, there is an Internet. (If the Internet doesnât exist, then what do you call âthat vast global network of interconnected computers?â The VaporNet? Really, doesnât it seem strange to you claim non-existence in something you refer to every day?)
Of course the Internet exists. Leo might be using a bit of hyperbole but the Internet is not a physical thing. The Internet is a protocol for connecting millions of independent computers which have nothing to do with each other which are connected using public and private cable, phone-line, wireless, and satellite connections. Right now, Iâm sitting at my computer connected to a computer which Leo rents by a bunch of those connections. Those connections have nothing to do other than to connect me to Leoâs computer. Those connections belong to phone companies, cable companies, mobile phone companies and government owned networks. There is no control other than to make sure the data gets from one computer to the other, and as Leo said, even thatâs only a gentlepersonâs đ agreement.
âNo joke intended. Get a real [lawyer]. Get an honest [lawyer]. Theyâre out there.â
Real? Iâm sure they exist?
Honest? Now, that Iâm not so sure ofâŚ