Common(s) Confusion

Gus Van Horn blog · July 8, 2008

By Gus Van Horn from Gus Van Horn,cross-posted by MetaBlog

A long, rambling, and very confused article about a lack of "free speech, rights" in the "seemingly public spaces online" serves as a perfect example of how poorly most people in our culture grasp the right to freedom of speech (which it is ostensibly about) and the right to property (which it evades or ignores -- at the cost of threatening both).

The headline alone excited a morbid curiosity on my part as soon as I read it: "'Public' online spaces don't carry speech, rights." Why is "public" in quotes? I doubted it was because the author is of the opinion, breath of fresh air though it would be, that a government should not own any online forums beyond what it needs to protect the individual rights of its citizens.

Does the author recognize that online forums are the private property of the companies that -- erm -- own them? If so, whence the complaint that a company doesn't simply amplify the rantings of every Tom, Dick, and Harry on its own dime? And what of the very idea of a non-governmental entity "carrying" rights, whatever that's supposed to mean?

To be fair, author Anick Jesdanun, like most of his readers, is preceded by a long history of deepening confusion about freedom of speech, property rights, the relationship between the two, and the nature and role of the government. Considering that the government can -- unlike even a big corporation like Google -- fine, jail, or execute us, not to mention affect our rights, we might pause for a moment to briefly consider the nature of government and why we have government.

We will, incidentally, consider the nature of rights along the way because, when we consider the nature and purpose of government, we will do what few have ever done: Start with the nature of man, whom the government is supposed to serve. Without doing this, there is no way to determine whether we need a government at all and, if we do, what it ought to be doing.

Actually, I have already done this here before and, lacking in time this morning, I shall quote myself. I was speaking about the lifting of an asinine fois gras ban at the time, but the same principles apply here. After our whirlwind tour of the nature of man, his requirements of survival, the nature of rights, and the nature and purpose of government, we shall apply our principles to the issues raised by Jesdanun.

[A]s

the rational animal, man

must exercise his mind to survive. Barring accidents of nature, the only thing preventing him from doing so is other men, specifically men who would initiate physical force -- be it by threat, constraint, fraud, theft, or murder -- in order to prevent him from enjoying the fruits of his hard-won knowledge and careful thinking.

Whether a man wants to build a clubhouse for his children or a bridge -- travel for a vacation or build a railroad from coast to coast -- pour a bowl of cereal for himself in the morning or prepare fois gras for paying customers -- that

man must be free from the forcible interference of others

to do so.

Man's most fundamental right is to his own life

, but since his life depends on the use of reason, the various manifestations of his ability to act upon his best judgement to further his own life (so long as they do not harm the lives of others) are derivative rights. It follows that a man must have the liberty to go about as he pleases and make his own calls about what to do.

What man produces to further his own life is likewise his property -- by right

. And in all cases,

a man must be free to communicate with others

to increase his knowledge or correct errors. Freedom of speech is also a right.

(By contrast, there is no "right" to free medical care since providing it against a physician's wishes would involve violating the physician's rights. [And there is no right to "free" use of someone else's Internet portal for the same reason.] ...)

While we all have the

right of self-defense

, the benefits of trade we can realize in a society would be impossible were we not to

delegate

this right (except in dire emergencies)

to the government

, whose

sole proper purpose is the protection of individual rights

, and whose

distinction as a social entity is its ability to wield retaliatory force

.

This is because honest disputes, even between citizens who would respect one another's rights, can and do arise, and because the less time we spend looking over our shoulders in fear (or having to fight off enemies), we have that much more time to go about our own business, our pursuit of happiness.

A proper government subordinates our right to the retaliatory use of force to objective standards

. [emphasis changed]

It is only now that we understand what rights are, what the government is for, and what makes it different from a "big" corporation, that we can even begin to tackle the subject into which Jesdanun jumps mid-stream, flails about, and drowns, completely confused.

We shall consider only a few highlights now. Below are excerpts from the article in plain text, followed by my comments in bold.

Companies in charge of seemingly public spaces online wipe out content that's controversial but otherwise legal. The key word is "seemingly". The companies own these "spaces" and thus can do with them as they please so long as this does not infringe upon anyone else's rights. Refusing to host someone does not infringe upon his rights because nobody has the "right" to just take or use someone else's property without permission. If Yahoo refuses to broadcast my words, this is not the same thing as gagging me.
Service providers write their own rules for users worldwide and set foreign policy when they cooperate with regimes like China. They serve as prosecutor, judge and jury in handling disputes behind closed doors. Service providers that had any sense would refuse to aid tyrants and, if they eventually have their assets seized, lose trade secrets, or find themselves increasingly being told what to do, they will get what they deserve. Their cooperation with immoral governments does not, however, make illegitimate similar-looking activities that are merely applications of their property rights in free countries. To wit: In China, Yahoo will help the government send you to jail merely for stating your opinion. In America, you have to be guilty of an actual crime before this will happen.
The governmental role that companies play online is taking on greater importance as their services - from online hangouts to virtual repositories of photos and video - become more central to public discourse around the world. It's a fallout of the Internet's market-driven growth, ... Other than not serving as accomplices to crime, there is no "governmental role" for companies to "play" online.
... but possible remedies, including government regulation, can be worse than the symptoms. This is what happens when a physician confuses a sign of health for a symptom of a disease. A company exercising its property rights is not a violation of a customer's rights unless breach of contract or criminal conduct are involved.
Dutch photographer Maarten Dors met the limits of free speech at Yahoo Inc. (YHOO) (YHOO)'s photo-sharing service, Flickr, when he posted an image of an early-adolescent boy with disheveled hair and a ragged T-shirt, staring blankly with a lit cigarette in his mouth. No, he ran into the buzz saw of Yahoo's property rights.
Without prior notice, Yahoo deleted the photo on grounds it violated an unwritten ban on depicting children smoking. Dors eventually convinced a Yahoo manager that - far from promoting smoking - the photo had value as a statement on poverty and street life in Romania. Yet another employee deleted it again a few months later. This proves nothing except that the people at Yahoo need to communicate better with each other.
While mindful of free speech and other rights, Yahoo and other companies say they must craft and enforce guidelines that go beyond legal requirements to protect their brands and foster safe, enjoyable communities - ones where minors may be roaming. The reputation part of this "must" comes from the fact that they are doing this for a living. The part regarding protecting minors from sexual abuse comes from the fact that children have rights.
But that underscores another consequence of having online commons controlled by private corporations. Rules aren't always clear, enforcement is inconsistent, and users can find content removed or accounts terminated without a hearing. Appeals are solely at the service provider's discretion. In a free society, there is no "commons" because all property is owned. Rules are as clear as contracts make them, and a potential customer can get an idea of how well they are enforced before signing a contract. Caveat emptor.
To wit: Verizon Wireless barred an abortion-rights group from obtaining a "short code" for conducting text-messaging campaigns, while LiveJournal suspended legitimate blogs on fiction and crime victims in a crackdown on pedophilia. Two lines criticizing President Bush disappeared from AT&T Inc. (ATT)'s webcast of a Pearl Jam concert. All three decisions were reversed only after senior executives intervened amid complaints. Were people more in the habit of looking out for themselves than running to the government for help at the first sign of trouble, they (and one of Verizon's competitors) could have had a field day with this. If Verizon wants to run a lousy Internet service, that's their right as long as they can afford to.
"As we move more of our communications into social networks, how are we limiting ourselves if we can't see alternative points of view, if we can't see the things that offend us?" asked Fred Stutzman, a University of North Carolina researcher who tracks online communities. This is obviously a liberal who hates the idea that he can't force a company to broadcast unpopular (read "hard left") opinions on someone else's dime. Psst! Ever heard of Daily Kos? Obviously, if one company won't carry the trash, another will -- although none is obligated.
First Amendment protections generally do not extend to private property in the physical world, allowing a shopping mall to legally kick out a customer wearing a T-shirt with a picture of a smoking child. And there is no reason it should be different online. Just because you can't physically touch intellectual property does not make it any less real. And for anyone who might think otherwise, I have a pair of short questions: "Can you touch your freedom? Does that make it any less real?" The property of others is part of their freedom and harming it will eventually come back to haunt you.
With online services becoming greater conduits than shopping malls for public communications, however, some advocacy groups believe the federal government needs to guarantee open access to speech. That, of course, could also invite meddling by the government, the way broadcasters now face indecency and other restrictions that are criticized as vague. The moment the government starts talking about "guaranteeing" access to property -- which is what is being meant here by "access to speech" -- the government is talking about violating someone's rights. This is the only way it can achieve such a goal.
At least when a court order or other governmental action is involved, "there's more of a guarantee of due process protections," said Robin Gross, executive director of the civil-liberties group IP Justice. With a private company, users' rights are limited to the service provider's contractual terms of services. This is an obscene obfuscation. To demand that I give "due process" before I deny someone else the use of my property is to demand that I get government permission before using it. "Due process" applies only to instances of the government forcibly depriving someone of liberty or property in the course of protecting individual rights.
Still, should these sites even make such rules? And how can they ensure the guidelines are consistently enforced? Their call, and their funeral if they don't.

This degree of confusion about freedom of speech, the right to property, and the proper role of government is as common as it is alarming. We will lose all these values if we do not start working overtime to protect them today, or support those who do.

-- CAV 329845533