Wednesday, March 05, 2008

Someone call the ACLU! The Internet ate my First Amendment rights!



Google.

news+blog+free speech

Results: 3,320,000

Results 1-10, front page.

What's relevant?

2 hours ago:

Appeals Court Weighs Teen's Web Speech
The Associated Press
Wednesday, March 5, 2008; 10:18 AM
NEW YORK -- A teen who used vulgar slang in an Internet blog to complain about school administrators shouldn't have been punished by the school, her lawyer told a federal appeals court.

But a lawyer for the Burlington, Conn., school told the 2nd U.S. Circuit Court of Appeals on Tuesday that administrators should be allowed to act if such comments are made on the Web.

Avery Doninger, 17, claims officials at Lewis S. Mills High School violated her free speech rights when they barred her from serving on the student council because of what she wrote from her home computer.

What did she write?
"`Jamfest' is canceled due to douchebags in central office," and also referred to an administrator who was "pissed off."

Color me surprised a teen said douchebag about a school administrator and used the phrase "pissed off."

Had she said this aloud, she would not have been punished.

But because she wrote it, the school and a court believe she should be.

That? In my humble opinion? Is excessively unreasonable.

She didn't threaten, nor did she employ libel, slander, hate speech or anything else we disallow from the protection the First Amendment provides.

What else?

Oh ho, another, in the last month!

Blog battle becomes free speech case
08:25 AM EST on Sunday, January 13, 2008
By Edward Fitzpatrick, Journal Staff Writer

The Reverend Anne Grant---head of the Parenting Project United Methodist Church in Providence---began a blog protesting what she deemed failures and injustices by the state state Department of Children, Youth and Families, particularly regarding the case of two children, whom she discussed using pseudonyms.
At DCYF’s request, a Family Court judge ordered the state agency to “advise” the Rev. Anne Grant to stop publishing the blog “as it pertains” to the two children.

Rev. Grant is appealing, saying the order violates her first amendment rights of free speech and her fourteenth amendment rights to due process.

What else?

I've already mentioned the case of the divorcing couple, one of whom the judge ordered to cease writing about the divorce and the ex-spouse on the blog.

I've mentioned employers who ban employees from blogging.

How about this case? It's fairly exciting.

The Hartford Courant ordered columnist Denis Horgan to stop publishing his blog, claiming he might (not he had, but he might) damage his employer's reputation.

Cyberjournalist.net has an interesting pro/con debate about this order. Click here to read it.

It doesn't take much Googling to see that the reasonable expectation that each blogger---or more specifically each blogger who has participated in this roundtable topic so far---has for freedom of expression isn't really there the way we expect it to be.

As many have noted, free speech isn't really free. It's freedom to speak, but doesn't grant amnesty from consequence.

Nevertheless.

We're not seeing reasonable expectations; we're seeing censorship. We're not seeing logical consequences to actions; we're seeing violations of our First Amendment protection of freedom of speech.

We're seeing it in the courts, in schools, and in workplaces.

As I wrote to Chani, specifically about workplaces and employers although the idea can be extended to cover courts and schools and society at large as well:
I do think some employers go way over the line. Sometime back, you and I discussed (posted, commented, etc.) the overbred sense of entitlement and ownership some employers have toward their employees' and their employees' time and loyalty.

I think there is a reasonable expectation of nondisclosure.

Then there is over the line, and I hear more and more over the line stories than otherwise.

Employers saying no blogging, period, as a condition of employment, for example. In that case, it wasn't "no blogging on company time or equipment" (reasonable) it was "no blogging period" (unreasonable).

The employer, in essence, was afraid of being Dooced (if you can apply that term back the other way).

Nondisclosure and employee handbook guidelines can manage that.

Violation could result in termination.

Both of those are reasonable.

To just broadbrush forbid it is not, and reflects, I think, that overbred entitlement and narrow-minded punitive style thought. Fear. It shows fear. And distrust.

I find the underlying elements the most concerning of all.

Clamping down on freedom of speech within blogging is the symptom.

We are allowed the right to speak. We are not free, though, from potential consequences such as people disagreeing, feeling upset with us or about what we said, or other opinions. They are free to express themselves, too.

In today's world, we increasingly speak via forms of writing: twittering, emailing, blogging, IMing, and so forth. In general, these communications fall more in line with the spirit of verbal communication than formal written and published communication. We must protect---no, we must respect the existing protections, of the right to speak freely, openly, even opinionatedly, occasionally with invective.

The courts, schools, employers and rest who believe that speaking out negatively or critically should bring solid and legal punishment and restrictions need a remedial course in the Constitution, the Bill of Rights and the Amendments.

Freedom to speak doesn't mean "free to speak only so long as everyone will like what you have to say."

It means free. to. speak.

Do I think people need to self-monitor and employ discretion, and keep in mind that the expanded opportunity to speak and be heard that the online world provides doesn't mean say anything?

Absolutely.

We should always consider issues we write about carefully, especially if they involve others. We should keep respect uppermost in our minds. We should use it, not abuse it.

But that's individual.

And it needs to be left up to the individual.

This means some individuals will abuse the medium and the right.

But they have the right to do that.

Copyright 2008 Julie Pippert
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18 comments:

thailandchani said...

Well, you've captured the essence of it. It's all about using common sense. The lack of common sense gets into another tangential issue that I'll leave alone for now. ;)

The first rule.. in all things.. "do no harm". If that was applied, these debates would become moot.

Julie Pippert said...

You know I agree with your rule, do no harm.

The sticky wicket, though, is that is really, really subjective, and sometimes, we decide to risk a little harm for a greater good.

For example...person running late to important meeting runs a yellow light.

The risk and benefit weigh-in weighed more heavily on "better to not lose seconds at light" than "rules are rules and I must slow down."

Everyone engages in this type of rationalization, and the light example probably isn't that great because it involves sorta breaking the law, which is fairly hard and fast.

A better example might be my post about "call me Hussein." I knew some people might disagree, some might not like it. But the racist undertones were so offensive to me that I decided to take the risk or offending (harming) someone and write and post on the topic.

Because we all adhere to unique boundaries, ideas, values, etc., where that line of "no harm" is will vary...and inevitably someone will get harmed (by their definition).

This goes back to the assertive discussion the other week, too.

Lawyer Mama said...

Those are outrageous! And clearly not in line with the legal standards. When I was in high school, I was writing letters to the editor about every topic under the sun on a regular basis. I shudder to think that a school administration might try to encroach upon a student's right to do that. Before I go off on a rant....

I would never work for an employer who insisted I couldn't blog. Or write. Or do whatever the hell else I wanted that didn't affect my professional reputation and therefore my employer. I guess it all depends on what you're willing to give up.

My husband, for example, cannot publish anything (on or off line) unless it is cleared by a certain governmental agency with which he holds a security clearance involving several polygraphs, detailed background checks, and an anal probe. When DC Metro Moms had a Dad Guest Post Day, he couldn't do it. He's perfectly OK with that. I, however, could never agree to such a restriction.

Gwen said...

I'm glad the lawyer in the group agreed that those cases are ridiculous (or "outrageous," to be accurate, lol), because that's what I was thinking.

wheelsonthebus said...

What bothers me is that it should be protected as long as it is true.

Chris Austria said...

The best part of all of these discussion is that there's a discussion. Which means that the law is doing its job. The Constitution will continue to be challenged and debated as long as our society continues to grow.

le35 said...

I think that there's a difference between what we write and what we say. It's easier for someone to forget spoken words than it is for someone to see it in writing. I also think that it's easier to think before you type than think before you speak (although we should be doing both.) However, because there is a difference between speaking and writing, I can see why there would be a legal difference as well. Writing is a lot more permanent, and many people view writing as a contract. When you go to the trouble to write something down, it's in stone. Therefore, when someone blogs negatively about someone, then that becomes worse for the person. When someone puts down ideas in writing, then those ideas are instantly available to be read, especially in the public blog world. I can see why some employers restrict blogging, and I also think that if you don't like that, find a different job.

Kyla said...

I agree, but I will say one thing...as someone who previously worked in a school, if a student council member was caught verbally calling an administrator a "douchebag", they'd be off the council, too, because of the policy. It would be a consequence to the use of free speech. In that case, I think the issue isn't that she can't say it...but that she can't hold her position and do so. The issue was that she was caught. And because it was on blog, it is a more magnified issue now than if she had said it out loud in study hall, been overheard by a staff member, and consequently removed from the council, I think.

liv said...

shout it loud, sister. free speech is in jeopardy. but, we do live in a country where millions are willing to sign away their freedoms for alleged or perceived security, so in a way, none of this surprises me.

blogs are becoming just another forum to accuse and persecute people in many ways. corporations are asking us to forgo any personal expression that doesn't specifically align with their bullshit corporate culture. espousing an opinion can cost you dearly. it just doesn't seem fair to me.

Julie Pippert said...

Amen, Liv.

***

Kyla, hmm that's interesting. After thinking about it a bit, I'm going to say I'd understand if they had a vulgarity policy and it happened on school grounds. If it happened elsewhere, then the school, IMO, can disapprove and possibly talk to the student and make a request or express a preference, but otherwise, I think they have to realize it's beyond their purview.

Some schools have some SERIOUS boundary issues as far as I can tell.

***

Le, good point that there's a difference between what we write and say, and that written words can linger. I'm not sure that written words definitively linger more than verbal---I'd have to look it up. But I concur that peopel often tend to take writing more seriously.

???I wonder if that is ending though? I wonder if this new generation growing up with all this online chatting views it differently???

The Web 2.0 style communication is still not the same as a formal publication.

Ooof. The job point.

There is a time to leave. But there is also a time to stay.

Some towns don't offer a preponderance of specialized jobs, such as that journalist had.

"Just leaving" isn't always feasible or reasonable.

Imagine someone had worked for an employer for ten years: you have accumulated vacation, benefits, seniority, retirement, etc. Imagine there aren't equivalent opportunities in your area. Imagine there's not much hiring.

There are a lot of factors that might make finding another job difficult if not impossible..

I would not be okay with having to choose between giving up my personal rights or giving up my job. Not reasonable.

That's WAY too extreme.

People don't generally respond well to extremes or ultimatums, and that's what that is: an unreasonable ultimatum---quit blogging or quit your job.

There is a wealth of compromise, middle ground. The employer can ask the employee to sign a nondisclosure agreement, or an agreement to not write about the job, inside the company...that sort of thing. A reasonable request.

Ultimately it may end up with a leaving, but it shouldn't begin there, and it shouldn't happen simply because an employer has major boundary issues such as in this example.

***

Chris, it's true---we're having discussion. My concern, though, is that people are abusing their power and authority by NOT upholding the law in places such as courts.

***

Emily, having slow day I guess. What?

***

Gwen, yeah me too LOL!

***

LM, schools have begin encroaching on that. I've heard some schools don't even allow op eds in school papers.

I'm telling you!

Kids will grow up taught to the test and restricted within an inch of not being able to think at all. <--- Julie's big fear and what keeps her up at night or suffering Orwellian nightmares

But am I ever glad you weighed in!

I guess at least your husband's work lets him do it with clearance. But yeah, not sure I could hold with that.

Angela at mommy bytes said...

Ah yes, to be honest, I think that writing on a blog is akin to publishing in a newspaper or other traditional media outlet. You do need to watch what you say so you don't wander into libel and slander, especially with big brother google ready to hand it over on a silver platter for anyone who asks.

I am very careful about what I say about my company as they are pretty conservative (they are never mentioned by name and my LinkedIn profile is not at all connected to my blog). Although there is no "blogging not allowed" rule that I know of, I'm sure they would not hesitate to enforce such a rule if it started to become a problem. That being said, am I at work? Oops!

Andrea said...

Exactly.

I can't imagine an employer thinking they have the right to control what an employee does in their spare time. Why not a no-smoking policy? A no-motorcycling policy? Wouldn't want to damage precious human resources. Or a no-purchasing-competitor's-products policy?

Those would never fly. But I think because blogging is new, it scares some people; and because it scares them, they try to control it and shut it down.

niobe said...

I worry a lot about saying too much on my blog about certain subjects. So I end up saying nothing at all. I can't talk about my work (for a whole bunch of perfectly legitimate reasons), but I really wish I could.

Mad Hatter said...

Interestingly enough, my library is actively trying to get all staff to start blogs and experiment with all manner of web communication tools. That's libraries, eh? Wanting to make sure we are on top of our patron's information seeking and processing habits. Suddenly, I am an authority on feed readers and Technorati even though I keep the free speech of my blog hidden from co-workers for fear of them reading it and thereby making me feel less free in my speech. Ha.

Jeff said...

Our town has been in the news a lot lately because they keep finding swastikas on our college campus. As crazy as it seems, some people are defending the right of the whoever is leaving them. Ugh, how do reconcile that?

Julie Pippert said...

Jeff, as much as some people like to argue "history and corruption" when it comes to symbols associated with hate, the overriding factor in my mind is connotation, not denotation.

People leaving swastikas are leaving a hate message.

Those are not generally protected.

We've decided to not tolerate racism, bigotry or hate.

Unless it's joking or about women.

;) <-- only half joking

flutter said...

Your last paragraph says it all

Jen of A2eatwrite said...

Julie, this is an amazing post!