12.17.2011

Op-ed: Persuasion v. Coercion in Goverment Actions

We recently posted an article describing Senator Joe Lieberman's attempt, as head of the Committee on Homeland Security and Governmental Affairs, to get Blogger to stop allowing what he calls terrorist speech on the blogs it hosts. Blogger (the platform we use for the site) is owned by Google. Google also owns YouTube, and previous attempts by the Committee to have terrorist content removed from that medium have proven successful. Presumably, Lieberman would have Blogger monitor its blogs and/or respond to requests and remove the offenders whenever content therein could be deemed 'terrorist' in nature.

While I noted some first amendment constitutional concerns in the post itself, a friend of the site wisely pointed out in the comments that Lieberman, or anyone else in the government, has as much of a right to express free speech as anyone else, so long as they are not, in fact, violating the rights of others. While this is undoubtedly true, it did lead me to consider a broader concern: When does the power of persuasion become the power of coercion? When does government speech attempting to convince a company like Google to stifle speech slide over into the government forcing Google to stifle speech?

For purposes of this post, I am not so concerned with the jurisprudence on the matter; particularly in the realm of e-issues, this is somewhat ethereal. Even if I did not so casually eschew the opinions of our nation's jurists, there is a very practical problem which exists in the realm of internet cases. That is that the Supreme Court has itself chosen to leave some of the more important questions concerning with the internet tangled in a complicated maze of Circuit splits. This makes it difficult to determine just what legal precedent might be in this situation.

Therefore I will instead think about the reasoning behind the matter, taking a more 'natural rights' viewpoint. In other words, as the baseline for this discussion, I am hoping that our readers can take some time to think about what it means to have freedom of speech as a right. Then I want them to think about what it means to have restrictions on it.

Without getting too far into the concept of natural law, it is safe to say that most would agree that, in the absence of governments, freedom of speech would exist inherently. The only way to suppress it would be through force. Therefore, when governments guarantee rights to free speech, what they are really saying is that they will stop individuals and entities from stopping the speech of other individuals. This includes the government itself. While some restrictions on this freedom exist, it is so universal that states must have a very compelling interest when they put restrictions in place. However, many readers of this blog might be able to agree that state interests don't always align perfectly with the interests of the people. Politicians have power, they like it, and they don't like to give it up. Therefore, politicians often put self-interests above the interests of their constituents. It is human nature.

Of late, many in government have decided that putting restrictions on the internet is important. Whether it is important for their own interests of the interests of the nation is up for our readers to decide. In any case, one of the main topics of discussion as part of this system of restrictions is freedom of speech. While speech on the internet is protected speech just like speech from a soapbox, it is potentially easier for the government to restrict it. While stopping someone on a soapbox might require brute force, it is possible to think of many ways speech could be restricted on the internet. It could be by shutting it down entirely, denying service, viruses, or by stifling the platforms where speech occurs.

In this last case, restricting speech via the platforms where it occurs, is there a gray area where, short of issuing a cease and desist order to do something, that the government can be so 'convincing' as to stifle free speech in violation of constitutional rights? I would argue that there is. And again, I will dispense with the use of jurisprudence here (something readers might perhaps correctly criticize), but I would argue that if a speech by the government carries the threat of future pain if its 'suggestion' is not met with action by the platform, that this is akin to a violation of speech rights of those who post there.

In the situation at hand, Lieberman only asked Blogger to shut down terrorist blogs. However, at least in the letter, neither he nor the government he represents have ordered the site to shut down blogs. This is the distinction that our aforementioned reader touched on, and it is a critical one. That said, it would not be difficult to imagine some discussion accompanied the letter Senator Lieberman sent to Google/Blogger. What if Lieberman threatened increased monitoring of the platform? Would this make users less likely to utilize it? What if more devious threats accompanied the request?

We already know that one such request by the government to suppress content on YouTube was successful. That suggests that the government's argument was very persuasive. Maybe in that case, Google was persuaded, wanted to be a 'responsible corporate partner', and thought that it really was in the best interest of society to suppress certain video content. However, considering its recent moves in China, where it has, at different points, catered to government demands in consideration for a more favorable operating environment, it seems at least possible that it put simple bottom line concerns ahead of speech concerns. While that is completely fine for a company to do as a general matter in my opinion (and in the opinion of the law), having to make that decision due to the strong encouragement of the government just doesn't pass the smell test.

Let's shift gears and address another potential problem with this situation, one of potential overreach. In other words, who is to say what terrorist speech even is? While it might be simple in this day and age to point to an example of a jihadist bent on destroying America as Lieberman does, what else is terrorist speech? Is someone speaking out against government policies a terrorist? What if they speak out against a government's internet policies? Is a writer who doesn't like blacks, or whites, or Catholics, or maybe Muslims and writes about it terrorising them?  So far, under current law, these types of speech would not be forbidden, odious as the latter example is. So let's go a little further.

What if it is a group of individuals on Twitter discussing the idea that their system of government is broken and needs to be replaced?  It is this very type of activity which was so applauded by so many that contributed to the overthrows of several dictators throughout the Middle East earlier this year. Do Americans not think that it is incongruous to applaud this type of activity at a personal and even governmental level, but suppress it at home? For those who think this is merely alarmist, The Department of Homeland Security recently said in no uncertain terms that it would be stepping up efforts to monitor such speech

The internet is one of the last bastions of freedom for many in the world. While it may be sad to some that freedom can only be found virtually and often anonymously, it is a blessing for many, as we have seen in numerous examples throughout the world this year. Governments are, and should be, nervous about the potential of the internet to stimulate political discussion. However, this is no bad thing. To paraphrase (and slightly twist) Thomas Jefferson, when governments stop being afraid of the people, liberty is lost.

Americans should be concerned by federal overreach into internet freedoms, in the form of monitoring, suppression of speech, in legislation such as SOPA. It has been seen throughout history that freedoms, once given up, are nearly impossible to get back. People should strongly consider government actions to restrict the internet, even if they are merely persuasive. If they don't it is not inconceivable that, at some point, posts like this will be much more difficult to come by.

2 comments:

  1. I think you hit the nail on the head by spotlighting the difficulty of defining "terrorist speech." After all, the First Amendment still protects even the right to (verbally and textually) support the despicable Al Qaeda, though of course it does not protect actual plotting or logistical support.

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  2. Thank You

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