Computers, Information Technology, the Internet, Ethics, Society and Human Values
Philip Pecorino, Ph.D.
Queensborough Community College, CUNY
Chapter 4 Law: Freedom of Speech and Censorship
Presentation of Issues
Concerning Freedom of Speech and Limitations upon it
READ: Freedom of Speech
Concerning matters of security of information and freedom of expression
In his essay after the initial defeat of a government to regulate the internet in the CDA in 1996 Lawrence Lessig warns about the regulation of speech through the design and operation of the computer technologies and the internet in particular. Such things as filtering by governments and by companies and schools and by companies that operate the search engines. What Things Regulate Speech:CDA 2.0 vs. Filtering by Lawrence Lessig
As the internet was just a few years ago, its architecture facilitated very little centralized control of content on the net. Its design disabled such control. The consequence of this design was that speech was free. Our obsession with indecency on the net is pushing us to change this fundamental architecture of the internet. My aim in this essay has been to consider the consequences of two very different architectural changes. One change requires that attributes of individuals be authenticated; the other requires that content be labeled.
My argument has been that the second change would have a much more profound consequence for speech on the net, both within the United States, and outside the United States.
We have won the first battle in the struggle over free speech on the net. We must now make certain that we don’t lose the war. The victory in Reno will push Congress to be more careful before it acts again. It might push it not to act again at all. This, again, in my view would be bad. But in this lull, the threats that it will act, and the cajoling of the President to get private interests to act, are changing the architecture of the net. The threat now is not so much a regulation by Congress; the threat now a regulation by the code. Our attention must be on how the architecture of the net is regulation — what its values are, and what the government’s role is in making the values as they will be.
Our tradition is to fear government’s regulation, and turn a blind eye to private regulation. Our intuitions are trained against laws, not against code. But my argument in this essay has been that we understand the values implicit in the internets architecture as well as the values implicit in laws. And they would be as critical of the values within the architecture as we are of the values within the law.
America gave the world the internet, and thereby, the world an extraordinarily significant free speech context. We are now changing that architecture. My concern is that our change not take away what the internet originally gave.
SUGGESTED: through the Library Access to Lexis Nexis
James Boyle, Foucault in Cyberspace: Surveillance, Sovereignty, and Hardwired Censors, 66 U. Cin. L. Rev. 177 (1997)
The Moral Issues: Applying Ethical Principles and the Dialectical Process
In approaching the questions, issues, problems and dilemmas posed by the situations presented by developments in computer technologies there is a need to analyze the situation and identify the key elements and values that may be involved and the ethical principles that can be brought to bear. An argument needs to be developed in support of the position that is to be advanced as the preferred position on the moral question. That position is then examined by others who hold different values or hold the same values in a different order and who would apply ethical principles in a different manner, rejecting one or another for reasons which should be given. The process continues until there are enough people who think that one position is the best of the alternatives. Given the nature of the original problem or question and the size of the populace who hold the one position of the majority there may be social policies or even legislation that would result.
The values held by many people is that of the freedom to express themselves and to converse with others and to form associations with those who hold similar views and values. These are values that are held highly in democratic societies and are essential to its proper functioning.
People also value their lives and well being and they value the protection of the lives and well being of those who can not do well in protecting it for themselves due to immaturity or disability. Thus many people, indeed most people, hold as very important the protection of children and other vulnerable groups of human beings from being exploited or harmed. This in turn leads many to want to take actions, including legislation, to provide those protections. The dilemma arises when these value of free expression and freedom of speech is confronted with the need to protect vulnerable groups.
Ethical egoists might think that the use or exploitation of children for the pleasure of adults is morally correct, but there are no other ethical principles that could be used to support that conclusion.
Applying utility to this conflict between freedom of speech and the need to protect children from harm would lead to an appraisal of what particular measures would produce the greatest utility. What actions could be taken to protect the vulnerable that would satisfy the interests of the greatest possible number of people? Examining the actions that have taken place involving all three branches of government of the USA would indicate that there was broad rejection of measures that imposed so great a restriction on the value of freedom of expression that they were too great. The current resolution appears to promote measures of protection that are not thought to be unnecessarily restrictive of freedom of speech.
For Kant the Categorical Imperative would also lead one to refrain from wanting too great a restriction on speech and yet at the same time using that imperative one could readily will that there be measures of protection for children . No person, and certainly not children, are to be treated merely as a means to an end and not to the end of others. The abuse of children is certainly a violation of that imperative.
For Rawls the Principle of Justice involves promoting a maximum of liberty while improving the lot of those least well off-minimizing the differences. Preserving freedom of speech while protecting children in some manner least restrictive of speech would be consonant with the Principle of Justice.
Other arguments can be advanced in support of resolutions of this dilemma and an argument can be developed using a multiplicity of ethical principles in support of particular conclusion as to what resolution is morally correct.
Reflections on Free Speech and Censorship by Lindsey Pehrson, CUNY SPS 2009
Andrew Puddephatt once said that “A nation’s unity is created through blending individual differences rather than imposing homogeneity from above; that the ability to explore the fullest range of ideas on a given issue was essential to any learning process and truth cannot be arrived upon unless all points of view are first considered; and that by considering free thought, censorship acts to the detriment of material progress…It is up to each individual to uncover their own truth; no one is wise enough to act as a censor for all individuals.” 1 To me, Puddephatt’s declaration is the quintessential point of view for what democracy means. It is a nation that blends together individual differences and accepts contrary opinions; it does not require a singular viewpoint. We are extremely lucky for this because if everyone had to think like the elected official and could not speak out contrary against him, I can only imagine the types of injustice and horrors we could open ourselves up to, forced to turn a silent eye to wrongdoing. Giving a leader absolute power, without requiring that he listen to input by the civilians he is overseeing, is what caused Adolph Hitler and Lenin to take such liberties ending in death and destruction. Freedom of speech and expression is important is because it allows for the creation of new thought and understanding. It is by challenging opinions and commonly held beliefs that we as a society make progress. For example, if no one ever debated segregation, or women’s right to suffrage, this nation would be a very difference place today, and you can be certain a black man would not be president. Furthermore, it is through exploration of this world and the myriad of beliefs and ideologies in it that we as individuals learn to form our own opinions about what is right and true versus what is false and wrong.
The founders of this country hoped to establish a society in which man could live free from the tyranny of a single entity (namely a King) dictating every action that should occur. The early colonists fought a long-standing war and lost many a life in defense of this belief. They then established their Declaration of Independence that officially acknowledged the equality of all men, and the right to their free expression. As time has passed, this freedom has extended from verbal speech to written communications, and thereby, the Internet. The Declaration of Independence also called for a government body that would be accountable to its people. That is the foundation of the United States. Judge Steward Dalzell clearly reiterates these ideas in his quote regarding government control in cyberspace. He calls the Internet, and rightly so, a, “never-ending worldwide conversation,” where everyone and anyone with a computer and Internet connection can join in and state their ideas. For the United States government to call itself a democracy, it can not then turn around and act like a rigid dictatorship in which citizen participation and opinion is censored, with most of the contrary and controversial ideas willfully omitted.
Because the U.S. has declared itself to be a free nation, “it is up to individuals to uncover their own truth,” Judge Dalzell said. Furthermore, if everyone must search for the answers, then, “no one is wise enough to act as a censor for all individuals.” I had to think about this for a moment and compare it to the running of the United States government. A panel of people makes all of the big decisions in this country in place of a singular entity. Congress is made up of many different citizens with both conflicting thoughts, and some similarities. They act as a direct counterbalance to the President, ensuring he does not have too much power to take liberties with the constitution. The Supreme Court, which decides the fate of cases that will shape the judicial landscape, is comprised of several individuals from different ethnic backgrounds possessing varying opinions. Courts that decide the fate of common criminals rely on a panel of twelve jurors to come to a decision. The point is that power is balanced between groups because just one person acting alone has too much potential to be swayed by bias or personal feelings. A group of people will contradict and counteract each other, forcing themselves to come to a new idea and consensus based on all the opinions.
Unfortunately, sometimes the government can act as a single entity against the rights of another entity: the citizens. The constitution was written to give citizens power in these cases and make the government accountable to them, not the other way around. Of course, that does not stop the government from trying to take additional control. They poster and preen and pass bills, like the Telecom “Reform” Act which they think gives them the right to declare what is and what isn’t acceptable online, never mind the fact that in verbal communication, the words outlawed by the Telecom “Reform” Act are commonplace and very legal. Knowing full well they could not take these words out of the English language and the physical world, they decided to impose some control over a world still in its youth: the Internet. They did it in the name of protecting the people, but honestly, how much protection do we need from a four letter word like “shit” when there are terrorists and other much more threatening entities running around? We need to be able to see through these attempts at our “protection” for what they really are: invasions of free speech and expression and thereby, direct violations of the first amendment.
Judge Robert Bork, author of, “An Electronic Sink of Depravity,” has a very different viewpoint than that of Puddephatt. He states, “The Jeffersonian model for universal freedom which Mr. Gingrich so rightly applauds could not take into account the barbarisms of the modern mind. Nor could it imagine the genius by which such barbarisms can be disseminated as they are today, in seconds, to the remotest and still most innocent corners of the world. Someone, perhaps even the Speaker of the House of Representatives, is going to have to consider soon the implications for ill as well as good, of our venture out into the information superhighway, or else there are going to be some very messy electronic traffic accidents.” 3 A translation of his thoughts could lean one to successfully argue that human beings are barbarians. We have a long history of acting cruelly towards one another and it seems that with every subsequent generation, we are further sinking into depravity.
Part of the deterioration of society has been the slow breakdown of values that were ingrained in our parents, grandparents and forefathers. Things like hard work, being fair with each other, being able to trust a stranger and being respectful of elders. In place of these morals additional problems have crept up. Some of these issues include youth growing up too quickly, being subjected to ideas and opinions that they may not be ready to process or fully comprehend. During our daily interactions with each other, one thing that still keeps us in line is the immediate consequences of our actions. For example, if you say something in a conversation that someone else finds questionable or objectionable, they will usually tell you immediately and make you back up the statement in question. The same is true if you say something that is risqué. Another thing you (usually) can’t do freely in mixed company is look at porn or other salacious material. If you do, there is bound to be at least one set of eyes watching and judging your actions.
In cyberspace there are no eyes watching you, at least not physically (unless you want them to). It is just the person, the computer and whatever information they choose to seek out. During conversations with others, we judge from their verbal and physical cues how to proceed, when we are being inappropriate, and when it is time to walk away. On the Internet, we do not have any type of verbal cue to cause us to censor ourselves. We search freely for any dirty little secret we desire, believing no one will be the wiser. Among the more harrowing articles for access online are writings like those of Blackwind, an anonymous author who weaves graphic and disturbing stories about child rape, torture, mutilation and subsequent murder. Page after page of this material and others like it (by numerous sources) can be found online. They are quite outrageous to some, extremely objectionable to others and definitely not the type of thing someone would want their young, impressionable child to stumble across while searching for Sesame Street ’s homepage on the Internet.
It is this type of content that Judge Robert Bork refers to when he declares that the original constitutional model that was to protect our freedoms had not considered while being written. How could our forefathers realize that hundreds of years after their time the Internet would be born and it would be the home of smut and porn worldwide? Bork’s statement raises a very important point: though we did not count on these types of things being available, that does not mean we do not have the right to act to protect our more fragile members of society (our children) from generating the smut. Only about twenty percent of the images online have nothing to do with pornography. That means that 80% of the Internet is dedicated to these images and sexual perversions. Bork realized that we must find a way to keep this highway to the risqué blocked off from our children or we are going to end up facing some very tough situations when their curious minds come to us with a twisted idea of what sex is about. The Internet allows virtually anyone to be a published author. Individuals can establish their own blogs and host websites, channeling their ideas no matter how ludicrous, disgusting or depraved they are. Bork realized that society cannot just allow these people to say whatever wherever and leave it for our children to find. There must be some manner of regulation to protect this from happening and keep these youngest members of society safe from harm.
The United States is a nation founded on the ideals of democracy. It is a place purported to celebrate a myriad of ethnic and cultural backgrounds where citizens hold varying opinions and live their lives by a series of different and often conflicting ideals. Underneath these contrary opinions, however, lives a solid, uniting theme which affords everyone, man, woman or child, a very unique truth: the legal right to say, think and express themselves however they see fit. As we grow into adults and listen to the unending stream of ideas, some in harmony, others in discord, we learn not only how society interacts, but also how to form our own opinions and find subsequent support for those beliefs. This act of learning how to become the person we grow up to be is universal. Depending on which country we live in, however, we learn what the unique societal norms are and what type government we are living under. Generally, the governments worldwide are thought to serve the purpose of protecting the interests of the citizens, though there are plenty of countries where the government officials main concerns are staying in office and becoming more powerful. In the United States , citizens rely on their government to uphold their individual rights as granted in the Declaration of Independence. Though three hundred years have passed since its inception, this document still serves as the founding ideal of the U.S.A, though some amendments have been re-interpreted and explained over the years in order to make them amenable to modern society.
The first amendment is one such legal right that has faced continual usage over the years. It has been a staple in American society, one that gives the United States the reputation of being a free civilization where you can speak your mind in public or private, whether it is criticism of or protest against the government, or simply a contrary opinion in a classroom setting. Here in this country people do not walk around facing fear of retribution for their words or thoughts, unless of course they are infringing on the rights of another human being. This gives individuals a great deal of leeway in their speech. One place where this tendency to be extremely expressive exists is in cyberspace. Since its inception, this medium poses numerous questions about and challenges to freedom of speech. The free thought and often questionable material found there have some calling for government censorship, while others angrily denounce the merits of such intervention. Having weighed the arguments for and against Internet censorship, in my opinion, though the Internet is full of potentially dangerous images and ideas that some individuals (such as young children) should be protected from, this does not serve as a valid reason to allow the government to place censorship on cyberspace.
Cyberspace seeks to give us a means for researching, learning and connecting with one another like never before. We are able to send images and words across the continent at record speeds. In a 1994 study by Carnegie-Mellon University it was established that 83.5% of the 900,000 4 Internet images surveyed were pornographic in nature. CMU, worried about the legal implications of the study, responded to this startling news by immediately removing sexually explicit newsgroups from the campus network, sparking a wave of outrage from students and a subsequent battle over their First Amendment rights. This scuffle between groups overflowed into the mainstream as other universities and news sites heard about the study and subsequent actions by CMU’s faculty and students. By 1995, the study had sparked the attention of Congress who felt their only response was to create the Communications Decency Act of 1996. It declared that anyone who intentionally solicited anyone under 18 years of age with, “patently offensive material,” would be fined and potentially imprisoned for up to two years, or both. Within record time, it seemed the United States government felt the need to exert more control over cyberspace. Through posturing and planning they came up with the great Telecom “Reform” Act of 1996. This bill, “passed in the Senate with only 5 dissenting votes, makes it unlawful, punishable by a $250,000 fine to say “shit” online. Or, for that matter to say any of the other 7 dirty words prohibited in broadcast media, or to discuss abortion openly. Or to talk about any bodily function in any but the most clinical terms.” 5 Never mind the fact that in the physical world, these actions are allowed, and legal.
The first problem with this “Reform” Act is that it is a blatant violation of democracy. The first amendment grants freedom of speech in the physical world. Conversations, regardless of whether they happen verbally or through text in a letter or on a webpage or email, are therefore protected as well. Having the government say only a few months earlier that soliciting minors online was illegal suddenly opened the door for others members of government to act and exert some sense of control and regulation in cyberspace, a medium which has been considered by members of the judiciary to be, “a never-ending worldwide conversation…” that the government has no business interrupting.6 John Perry Barlow responded to this act in disgust. In his, “Cyberspace Independence Declaration,” he responded by lumping the democratic United States with those countries known for their censorship and dictatorial rule. “In China, Germany, France, Russia, Singapore, Italy and the United States, you are trying to ward off the virus of liberty by erecting guard posts at the frontiers of Cyberspace…Your increasingly obsolete information industries would perpetuate themselves by proposing laws, in America and elsewhere, that claim to own speech itself throughout the world. These laws would declare ideas to be industrial product, non more noble than pig iron…These increasingly hostile and colonial measures place us in the same position as those previous lovers of freedom and self-determination who had to reject the authorities of distant, uniformed powers. We will spread ourselves across the Planet so that no one can arrest our thoughts.”7
Barlow is pointing out that the United States is placing its citizens under the same tyranny that caused the colonists to break away from England . He is declaring that no one owns speech and we can not give the government, elected body or not, the power to take away our right to say whatever we want and express ourselves openly. John Milton, the English poet and writer, concurred with this idea back in 1664. He believed that, “it is up to each individual to uncover their own truth; no one is wise enough to act as a censor for all individuals.”8 Apparently, at our nation’s founding they must have agreed. Our government is based on a series of checks and balances intended to prevent bias or control from interfering with what is right and true, and to keep any one person from having too much power. Even the judicial system relies on teams of people (12 jurors to be precise) to determine the outcome for alleged criminals. We have so much freedom in our speech, in fact, that we have the right to remain silent and not incriminate ourselves when we’re in police custody and being asked to admit our wrongdoing.
Some individuals, for instance other members of the U.S. judicial society, like Judge Robert Bork, feel that freedom of speech needs to have restrictions placed on it for the good of the citizens in this country. Specifically, he feels that the government should protect minors from pornography online. In his view, there are serious implications about the impact of various subjects like pornography on young and impressionable minds. Of course, there are many parents who do not want the government telling them how to raise their children, including dictating what their children can and can not watch. These parents feel that, for better or worse, it is their responsibility to say what their child can and cannot do. To aid parents in the protection of children in cyberspace, many software companies have responded by creating programs, such as Net Nanny, which set access to the Internet and keep kids out of trouble both when parents are home, and when they aren’t. These programs have been very successful at patrolling children in cyberspace, rendering government intervention unnecessary.
Justice Oliver Wendell Homes, Jr. contradicted Judge Bork when he weighed in on this debate. He claims that, “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought-not free thought for those who agree with but freedom for the thought that we hate.”9 The United States is, after all, a country founded on democracy, where every citizen gets to have an opinion and a vote. That is the legal right afforded by the Constitution. “ America gave the world the Internet, and thereby, an extraordinary significant free speech context. We are now changing that architecture. My concern is that our change not take away what the internet originally gave.” 10 If we choose to give up our freedom to say what we want for the protection of our young children instead of finding alternative means (like software programs and parental supervision) to keep them safe, what will happen when they grow up and ask us how they could let their right to see and say whatever they want be taken away? And if we open the door to partial censorship of speech, what will happen when the government deems something else that is part of the physical realm to be offensive and thereby verboten online?
Blackwind is a writer who spreads cyber stories about the rape, torture, mutilation and murder of children. His words are twisted and despicable, even by the lowest standards. He is granted the same freedom of speech that I am. Would I seek to change his ability to speak his mind? I might want to. Everything he is flies in the face of everything I stand for. To me, his morals are seriously lacking and he is in desperate need of psychological help, perhaps even jail time. However, as much as I hate his words and his thoughts, and as much as I seek to protect my children from monsters like this, I would never take away his freedom to express himself because, honestly, “what is freedom of expression? Without the freedom to offend, it ceases to exist.” 11 Blackwind to some would be considered risqué, to others a hero, to me a blight on humanity. But, ensuring his freedom of speech ensures my own. Saying that he is allowed to vocalize his despicable thoughts is the same as me vocalizing my discontent with another person or with my job, or my President. I don’t like it. I don’t like what he stands for, but think about this from another angle. What if Blackwind were not allowed to write out his fantasies? What if he were forced to lock them up inside himself and carry them around like a poison in his blood for years and years. What if those thoughts were so tempting and twisted they became like a voice calling to him to act out the roles which he sees in his brain? Many a psychologist has said that talking is catharsis. It allows us to work through our issues. What if writing out his demons allows Blackwind to keep himself from acting on them? If we prevent him from speaking out aren’t we then responsible for his actions when he acts out the visions he can no longer repress by hurting a child in the physical realm?
In terms of ethics, freedom of speech to the ethical egoist would be the right thing merely because it affords him that which he desires: the ability to say and be whatever he wants, be it in person or online. There is unfortunately no other ethical support for an egoist, and this alone is not enough of an argument for freedom of speech. In the Utilitarian point of view, freedom of speech is only the morally good choice if it makes the greatest number of people happy. In this case, the United States has been founded on the principles of freedom of speech and, its citizens rely on it to express themselves in their daily lives. It is the element that makes the majority of the population happy, regardless of the large minority who dissent, and therefore, it is the ethically sound option for the Internet. In the point of view of Kant’s Categorical Imperative, Kant claimed that good lies in intent. He believed that those actions born of our sense of duty and not our sense of benefits or consequences for ourselves, are the ones that can be deemed as good. He theorized that people should act in the same ways that they would expect other “rational” people to follow. In Kant’s theory, people are good because of their sense of duty. Therefore, people have the right to freedom of speech online because they possess a sense of duty and good intent (to use it without harming others), and are rational of mind. Unfortunately, Kant’s argument falls apart in the case of Blackwind. Blackwind shows us that people are not always filled with good intent, they do seek to harm others. And, there is the matter of whether or not Blackwind is indeed a rational human being. From his words we can gauge that he very well may not be. Therefore, Kant’s theory can not be used to support the argument of free speech.
The Natural Law theory follows a different path. It states that our natural tendencies are the ones that are ethically “good.” That means that our desire to express ourselves openly and honestly is the best option because it is part of our nature. Since the Natural Law says that anything that is a natural tendency is good, then it can be said that Blackwind’s ideas about child torture and mutilation are not ethically wrong if they are part of his inherent inclinations. Therefore, free speech should be granted to all if they feel it in their nature to speak it, regardless of what words or thoughts spring forth from their mouth. Similarly, Rawl’s Maxi Min principle seeks to maximize liberty and minimize inequality in society. In this point of view free speech, which is a legal liberty, should be granted to U.S. citizens and all citizens of humanity because it minimizes the inequalities that seek to separate us. These inequalities include variations in positions of power that might ordinarily allow some to speak out and keep others repressed. By seeking to make things better for the group that is the worst off, which in this case would be those without freedom of speech online, we would be accommodating the liberty and opportunity that the Internet gives us to communicate and vocalize.
In conclusion, there are numerous arguments that can be made for or against freedom of speech online. However, in the United States where democracy is the foundation beneath us and the right to express ourselves, no matter how dark or twisted, has become part of our moral fiber, it is clear that the Internet must be afforded the same protections for free expression that we are given in the physical world. Life without expression of contradictions means a world where everything is stagnant and nothing ever changes. It is through speech and interaction that we really learn to understand and see one another’s point of view, perhaps even forming or revising our own. If we take away this ability to say what is on our minds, and we repress our true thoughts and feelings deep inside of ourselves, it may be only a matter of time before we act on our worst ideas. A world without dissent is a world without color or vibrancy. We must defend our children by watching over them online, but above all we must protect them by ensuring their right to free speech and expression, and subsequently the right to make the decision about what is appropriate and what isn’t for themselves. The bottom line is that we are all part of the same human family: young, old, black, white, Chinese…every race, every ethnicity, we are tied together by our right to speak our mind. Some governments have sought to deter this right, but we can not allow the United States, a country founded on the principles of freedom, to digress and violate the ethically natural law to say what is on our human minds while we are online.
4“ Banning newsgroups at Carnegie-Mellon University in 1994” The Internet Censorship Saga 1994-1997 http://groups.csail.mit.edu/mac/classes/6.805/articles/cda/saga.html
5, 7 “A Cyberspace Independence Declaration” by John Perry Barlow, Feb 9 1996
9, 11 “ Readings on Computer Communications and Freedom of Expression.” http://groups.csail.mit.edu/mac/classes/6.805/readings-free-expression.html
8, 10 Justice Oliver Wendell Holmes, Jr. in U.S. v. Schwimmer, 279 U.S. 644 (1929)
6 “What Things Regulate Speech: CDA 2.0 vs Filtering,” by Lawrence Lessig
Web Surfer's Caveat: These are class notes, intended to comment on readings and amplify class discussion. They should be read as such. They are not intended for publication or general distribution. email@example.com @copyright 2006 Philip A. Pecorino
Last updated 8-2006 Return to Table of Contents