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What are the Internet’s Rules about Free Speech?

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Can you advise me on the “rules” of the internet regarding free speech? I’ve had comments on some sites and posts on a discussion group deleted by the owner. Doesn’t that violate my right to free speech?

No, it doesn’t. 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 “interesting”.

Yes, there are rules, and even laws, but it’s an incredibly complex issue.

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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 don’t think I am, but I could be. (Which, by the way, applies to everything I’ve ever said or published. 🙂 )

The internet

Let’s start by acknowledging that there is no such entity as “the internet”. Internet is just a term that describes a vast global network of interconnected computers.

MicrophoneIt has no laws or rules.

Even the protocols, formats, and various ways devices interconnect aren’t governed by enforceable laws. A more appropriate (if sexist) term would be  “gentlemen’s agreements.” Adhere to this specific protocol and you’ll be able to do X on the internet. Change that protocol (which can be done) and X won’t work.

Just look at all the cross-browser capability standards to display a webpage and you’ll 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 that those laws are not global in nature. In reality, they’re 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 you’re allowed to say is one of the ways they vary. In some countries, it’s illegal to speak ill of the ruling monarch. In others, it’s 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 internet’s existence to current internet-related issues and experience varying degrees of consistency and success.

In short, there’s a bucket load of laws that apply to what happens on the internet. Unfortunately, it’s 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 agency’s 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 doesn’t mean that the service you’re 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

Let’s say I run a website. 🙂 To keep things simple, we’ll 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.

That’s what free speech really is, at least to me: the ability to set up your own pulpit and say what you want. It does not mean you have the right to use someone else’s venue for your message.

And it doesn’t make a difference that you can’t 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 rights 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, “Congress shall make no law…”. If no law was made, or you weren’t arrested, the first amendment doesn’t apply. The wonderful webcomic XKCD explains it beautifully.

TOS, AUP, and common sense

There’s 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 “Terms of Service” (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.

Don’t like the terms? Don’t post there. Go somewhere else. Violate the terms? Expect to see your comments, posts, or blog disappear.

It’s 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, you’ll likely be faced with an “Acceptable Use Policy”, or AUP. As the name implies, when you use someone else’s services — even if you’re paying for the privilege — you’re 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 — at least morally, and perhaps legally. The classic example is that it’s not within free speech rights to randomly yell “Fire!” in a crowded theater3. Where free speech guarantees are available at all, they don’t trump the safety of others.

Making your point

“So, 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?”

You may not be able to. Whether you’re on the web or using another form of media, there’s nothing about human discourse that guarantees you get to make your point to the people you think need to hear it. There’s certainly no legal recourse that I’m aware of.

Except… (and this is where you really need to talk to a lawyer) …

Defamation, slander, and libel are all terms that have very specific legal implications. I won’t 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

I’ve been banned from one discussion forum (that I know of).4

And as unfair as it is, that site owner has 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 I’m 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, it’s likely that sites like Ask Leo! wouldn’t exist. Malicious entities would use that ability to their own ends.

As distasteful as it is, the website owner’s ability to pick and choose whom he or she allows on their site is also an important form of freedom of speech.

Even if they’re wrong.

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Footnotes & references

1: No joke intended. Get a real one. Get an honest one. They’re 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 it’s not always politics. In this site’s case, I take my ban as a badge of honor. 😉

34 comments on “What are the Internet’s Rules about Free Speech?”

  1. Only a government authority can violate your First Amendment rights, because only the government can grant or protect those rights in the first place.

    • I’m not sure that’s 100% correct, but regardless – as soon a you say “1st amendment” you restrict your statements to the United States only – 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 can’t 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 can’t sanction your speech, but I certainly can.

  2. Good article: It’s important to know the difference between a right and an entitlement: when you speak/post someone else’s patch, you have an entitlement to do so, not a right. And that entitlement can be abused and thus withdrawn. There shouldn’t be an argument.
    Free speech does not include the entitlement to be heard.

  3. Yelling “fire” 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, “Remodeling by Leo!” or maybe a politician, “Vote for Leo!”, but if someone places a sign, “I think Leo is wrong, and this house is ugly”, 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, “You may not say that Leo is ugly,” but if you stand on Leo’s front lawn and say it, he has every right to eject you.

  4. The analogy I like to use is “My house, my rules”. 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 layman’s understanding of the law)

  5. 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 they’re clearly not spam. This has happened to me a few times in the past. I honestly have to wonder if it’s really that my or others’ 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. It’s 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 it’s bad form without a reason, and is often misused as part of some personal agenda or vendetta – but it’s all totally legal.

  6. The First Ammendment is a FEDERAL document. The reason it is illegal to scream “Fire” in a theater is because it is a STATE law. States are NOT bound by the First Ammendment because the states are not “The Congress of the United States”.

    • Actually the 14th Amendment extended the Constitution to limit states from abridging Bill of Rights protections.

      Amendment XIV
      Section 1.

      All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      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 🙂 )

  7. 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? Isn’t that equivalent to yelling “fire”? Thanks for listening.

  8. One arguable exception about the right to suppress contribution is sites that
    – sell goods,
    – post reviews of the goods they sell, and
    – 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 “free speech”. Sites are allowed to run however they please. Where they lose is when people realize what’s happening, and then lose trust.

  9. “I can choose to edit your comment; in the worst case I could make it say something other than you intended.”

    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. It’s often the case that contract clauses that abrogate legal rights are unenforceable.

  10. Thank you, Leo, for pointing out the obvious. Most Americans are ignorant when it comes to “the freedom to speak freely”. The fact of the matter is that “free speech” is protected ONLY when the government actively attempts to stifle your speech and even then there are exceptions, especially when those “exceptions” deal with the security of our nation.

    There is no “freedom of speech” 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 wouldn’t change the minds of people who believe that they have the right to say anything they please, at anytime and in any setting.

  11. Hey Leo, Good article. sounds like some of the ‘rules’ you stated…
    “You 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 intended”
    would be appropriately applied to sovereign countries. Sometimes it doesn’t seem that way. By the way I live North or the 40th parallel.

  12. 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.

  13. Let’s go back to the “shouting ‘Fire!’ in a crowded theater” argument. The Supreme Court decided years ago (please don’t ask me to cite the case! This comes from a news reporting class I took 30 years ago) that speech that constituted a “clear and present danger” could be abridged. The majority opinion, written by Justice Oliver Wendell Holmes, specifically used the example of shouting “Fire!” in a crowded theater. Of course the opinion assumes the theater isn’t actually on fire.

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