Should Speech Be Restricted On The Internet? Shouting "fire" in a crowded theater — where there is no fire — isn't considered free speech. On the Internet, the rules aren't as clear. Some experts believe online expression should be unrestricted, but others say a medium with a memory needs some limits.
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Should Speech Be Restricted On The Internet?

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Should Speech Be Restricted On The Internet?

Should Speech Be Restricted On The Internet?

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JOE PALCA, host:

This is Talk of the Nation, I'm Joe Palca in Washington. Mention to a colleague in a newsroom that you're planning to do a show about restricting free speech on the Internet, and you get a look of shock (laughing), disbelief. What are you talking about? Restrict free speech, that's ridiculous. Come on.

But wait, think about this. Earlier this month, a popular Web site closed up shop. It was an online rumor mill, a place where college students could gossip about classmates and professors. The people who posted were anonymous, the posting - people they posted about, they weren't anonymous. And as you know, the Internet has an amazing memory. It doesn't forget much. So that post about a classmate written in spite, based on nothing at all could come back to hurt that person many years after he gets a diploma.

We already live with some restrictions on free speech. I mean, you're not allowed to run into a crowded theater and yell fire if there's no fire. Should there be complete, total, unencumbered free speech on the Internet or should there be some restrictions on images or video, on other people's private information. Should be there be anonymity, the expectation that you're able to post anything, perhaps everything, with impunity?

Where do you draw the line when it comes to free speech on the Internet? Our number here in Washington is 800-989-8255. Our email address is talk@npr.org. And you can join the conversation at our Web site, go to npr.org and click on Talk of the Nation. Later this hour we're going to talk about "Slumdog Millionaire," it won the Oscar, and we'll talk with the author of the story behind the film.

But first, free speech and the Internet. Daniel Solove is a professor at the George Washington University School of Law and the author of the "Future of Reputation: Gossip, Rumor, and Privacy On The Internet." He joins us now from his office in Washington. Welcome back to Talk of the Nation.

Mr. DANIEL SOLOVE (Professor, George Washington University School of Law; Author, "Future of Reputation: Gossip, Rumor, and Privacy On The Internet"): Hi. Thanks for having me back again.

PALCA: Well, it's good to have you. And I find this topic inherently important and interesting. But you think that there should be more restrictions on speech on the Internet. What are you thinking about?

Mr. SOLOVE: Well, currently, things are almost like the Wild West when it comes to the Internet. And I think that people should be able to speak what they want and speak very robustly, but I think they should be limited when that speech starts to really harm other people, when it invades their privacy or when it involves a defamatory rumor about them. And in these cases I think that people should not be able to freely smear other people with false rumors or gossip about their private lives.

PALCA: Is there no remedy for this sort of thing? I mean, obviously, I could - I don't know you, but I could say something about you to a friend, and that would be - could be wrong but it, you know, would it be actionable?

Mr. SOLOVE: Well it's complicated, because offline, there have been a number of protections against defamation as well as invasion of privacy. And so speech was never purely unfettered. If you invaded someone's privacy in - on NPR, for example, and spilled out very sensitive private details about their lives, you could be sued for a tort of public disclosure of private facts. And so you could potentially be liable on a civil lawsuit to them.

What makes things complicated on the Internet are two things. One is that now, anybody can spread information across the world and it could be anyone. It could be, you know, the teenager sitting in their room, typing on their computer. And so it's no longer the mainstream media. And not everyone has the same level of judgment that the mainstream media has. A high school student might just care about gossiping about their friends and their enemies. And two, that when you're - the way the law protects privacy and the way these privacy, the existing law protects privacy and defamation has not translated very well to the Internet, and the Internet provides certain challenges for that law that makes it really hard for the law to be effective at dealing with this problem and I think that combination has really presented a major problem.

PALCA: But using that example you just chose of somebody - if I were to disclose some private fact to the public, that would be actionable, why not if an individual post something to a blog that discloses some private or especially not correct thing, why are they not liable or - and can be, you know, brought into a civil lawsuit?

Mr. SOLOVE: Well, they would potentially be liable but there's a few things that complicated the process. One is that, in a lot of cases, they might be anonymous and very difficult to track down. One of the things that you see when they post it. So it was to hard actually locate the individual who actually set it. In addition, a lot of the people who are posting the information online, don't have deep pockets. They're students, they're teenagers, and if something's on NPR, NPR is the major company that has to risk substantial liability. It has the money to pay the damages, a lawyer might very well sue NPR, whereas the teenager in their bedroom, no lawyer's going to find it financially feasible to even bring a case in that instance. And so to some extent, they can get away with it because no one's really going to utilize the law to get them. And it might be very hard and expensive to figure out who exactly they are.

PALCA: But the other thing you said, which is a problem we always face in the media, and I suppose individuals face is, you know, one person's smear is another person's frank and honest description of the facts as they see them. You know - do you know what I'm saying?

Mr. SOLOVE: Yes.

PALCA: Who is gong to adjudicate those things, and how can you do that in advance, as it were?

Mr. SOLOVE: Well, that is a tricky thing. I think there is a range of things that are fairly clear if you put a nude picture of somebody up online, I think it's fairly straightforward that that's a privacy violation, and that, you know, that actually happens quite a lot. There are a lot of cases that are in the gray zone, and that's one of the things that makes privacy very complicated, is that a lot of things are very contextual, fact-specific. And they aren't easy, bright lines to make these distinctions. I think we must do something here because in every area of law there are often not clear, bright lines. And this kind of information, when spread about people, can really harm people, potentially for their entire lives. If you spread gossip about somebody's life, their - let's say their sexual activity or a medical condition they have, that could potentially affect them and their potential future employment for years to come and could inhibit them from realizing their dreams or pursuing their career or earning a livelihood or making friends, and I think that's a severe restriction on their potential future freedom and their self development. And so, I think that the issues at stake are too important not to do anything.

PALCA: OK, well, we have someone here in the studio with us who actually has to wrestle with these kinds of issues as part of her job description, because Google has occasions when it restricts Web searches - it some times is in countries but it's also, it sifts through YouTube videos for objectionable content, or sometimes what some people see as objectionable content is called to YouTube's attention. And so that's why my next guest, Nicole Wong, is the right person to talk to. She's the deputy general counsel of Google. She's been called "The Decider." I think it's a great name. Nicole Wong works on a team that decides what should not appear on YouTube and she's here in studio 3A. Welcome back to Talk of the Nation.

Ms. NICOLE WONG (Deputy General Counsel of Google): Thank you so much. It's nice to be here.

PALCA: Well, so, you just heard what Daniel Solove was saying. I mean, are there adequate people in place to carry out the kinds of oversight that's needed or are we woefully inadequate in that protection.

Ms. WONG: Well, so, I think Dan's concerns are understandable. But I also think it's very important to be viewing this experience with the Internet in perspective. We're currently watching the development of probably the most democratic platform for free expression we have ever seen in our history, and that's enormously important. I sometimes compare this to how the media grew up, right? So you had the printing press, and then many generations later you had the radio, and then sometime after that television, and then cable. And in the space of each of these, you had generations or decades for the society to identify what are the norms, about what's OK for us to say to each other and what's not OK and laws to develop around that. The difference with the Internet is that it all happens so fast. It feels like every month there's another Twitter, or Facebook or some other technology that comes out that changes how we feel about how we're communicating with each other. And so, to some degree, we're all feeling a little bit uncertain because these changes are happening so fast. But I don't think we should be afraid of the fact that we have this new and very powerful communication tools because they are so important in terms of permitting anyone with an Internet connection to have the potential to reach as many people as Joe Palca and NPR.

PALCA: Right. That's a little scary. But the other thing about it that strikes me is that it goes everywhere almost all at once. So, that you don't need a radio and, I mean, the goal of the Internet was to make international boundaries be completely transparent. You didn't whether you were talking to the person at the next cubicle or looking at a file on the computer on the next cubicle or looking at something that was in Taiwan. I mean, so how - I mean, it's not just you said social norms but this is planetary norms which obviously vary. I guess that's one of the things you have to deal with.

Ms. WONG: Yeah, at the top of your segment you sort of credit some of the statistics that I've talked about in terms of places where our services, the Google services, or YouTube services have been actually blocked out of certain countries. A total of 24 different countries have blocked us over the last several years. But again, see those blockages sort of in the context of the tremendous growth of the Internet. In the last fives years, we went from less than two million blogs identified on the Internet to more than a 110 million today. On YouTube, there are 15 hours of video uploaded every minute. That's astounding, and it's making really important impacts in this country, but particularly in other countries.

PALCA: All right. Well, that music means we're going to have to take a short break. We're talking with Daniel Solove - he's a professor at George Washington University - about the future of reputation. His book, "The Future of Reputation: Gossip, Rumor, and Privacy on the Internet." And Nicole Wong, the deputy general counsel for Google. Where do you draw the line when it comes to free speech on the Internet? We'll take your calls in a moment. Our address, if you want to write to us, is talk@npr.org. I'm Joe Palca, it's Talk of the Nation from NPR News.

This is Talk of the Nation. I'm Joe Palca in Washington. Pick your cliche - town hall, public forum, marketplace of ideas. That was the promise of the Web. Now, many argue that free speech goes too far on the Web that it damages reputation, offers too much anonymity and that sometimes it's dangerous. So, where do you draw the line when it comes to free speech on the Internet? Our number here in Washington is 800-989-8255. Our email is talk@npr.org and you can join the conversation that our Web site, yes, you have to follow the rules there too, go to npr.org - no inappropriate content, please - go to npr.org and click on Talk of the Nation. My guests this hour are Dan Solove. He wrote the book "The Future of Reputation: Gossip, Rumor, and Privacy on the Internet." Also here on Studio 3A is Nicole Wong. She works as deputy general counsel at Google and helps decide which videos run on YouTube and which do not. And let's take a call now and go first to - oh, dear. Is that Eera(ph) on Tempe, Arizona? Did I say that right?

EERA (Caller): Yes, you did.

PALCA: And welcome to Talk of the Nation, Eera.

EERA: Well, I totally agree with both the speakers. We have a case where technology has gotten ahead of society, and now we're trying to figure out ways of regulating it. It is true. Anything that is posted on the Internet will stay on that person's record. All that anybody has to do - future employers, schools, anybody - is just type in the name of the person and out come all the comments, real or false, will all come out. So what are we looking at here? We need to, again, find ways of policing. I hate the word, but it is true. We need to find ways of making people responsible for the content that they publish on the Internet. So I think that everyone(ph) should look at this, educators and the public in general because it affects everybody. Think about it.

PALCA: OK, Eera, thanks. Dan Solove, so I'm giving you the Czar of the Internet power to implement and enforce the kind of rules that you think should be in place, or the people who should be implementing the kinds of protections that you're for(ph). What would you do?

Mr. SOLOVE: Well, I certainly don't want a system of top-down censorship. I think that is a big problem. I also don't think that criminal liability is appropriate except in extreme cases of threats and harassment. So basically what I really ideally want is I think that you need law to be there as a credible threat in the background to encourage development of norms of responsibility. I think the current norms are so diffuse, there are so many people posting, millions of bloggers all around the globe, there really aren't much in the way of any norms of responsibility. It's a free for all. And I think that to rein this in, law needs to be a credible threat, although I don't want it to be a realized threat. I think too many law suits becomes very problematic, and so we need a system where the law is there and forces people into some kind of an informal negotiation settlement and so on, so that they can resolve these issues informally, ideally, before we have to resort to a full-blown law suit. And I think if we do that, we can help push along the development of these norms. It won't be perfect, but we can push that along and avoid having too many law suits, having too restrictive a regime on speech, because I really don't want that. I think that what Nicole describes about the fact that everyone can speak on the Internet is great. I just want to avoid cases where people are harmed in that process.

PALCA: Nicole, did I see you shaking your head? Are you - do you think that's the - this idea, that there needs to be some underpinning of law to make things work?

Ms. WONG: I don't know if it's law, and Dan also started talking about some sort of informal mechanism for us to work out these norms, and I probably tend to agree with that more. I think that the issues that both he and the caller who was just in were trying to address was, where does the accountability get held? We have what is - what can be an anonymous Internet right now, and how do we build in some way to weed out the bad actors. And I think there might be many mechanisms for that.

PALCA: Right. Let's take another call now and go Luke(ph) in Clarkson, Michigan. Welcome to the program, Luke.

LUKE (Caller): Thank you so much. As a Web developer, I find that the ability to do creative work that is the mass appeal and speaks to all the ingenuity that's been coming out almost every other month. But policing this creativity, I think, would end up doing more harm than good and undermine the efforts to expand in an arena that most of us only read about in science fiction novels. I think the answer from my perspective as a web developer lies in education, teaching children, perhaps in the middle school arena, the responsibility on posting, as well as we teach them dangers and we teach parents dangers about having unsupervised children on the Web, teaching them the potential for undermining their own efforts of getting a job down the road after graduating from college.

PALCA: All right. Interesting, Luke. Nicole, what about that? I mean, we all went through a learning curve with email where we learn what we could and couldn't say without getting ourselves into trouble with email. Is that what has to happen? Can we help people with that learning curve?

Ms. WONG: I think that's a large part of it, and people have this conversation around child protection on the Internet, right? Which is you've taught your child how to cross the street safely, also teach them how to use the Internet safely. And there's a component of this when we talk about speech that's bad or harmful to others which is, you know, how do we talk nicely to each other, is sort of that the baseline of that. So, developing that early is obviously an important component.

PALCA: OK. Let's go now to Kayla(ph) in Reno, Nevada. Kayla, welcome to the program.

KAYLA (CALLER): Hello. Well, I have a bit more of a "Dear Abby" question about online ethics. A few months ago my husband went to see a chiropractor locally, and after seeing the chiropractor, we were advised to go to the ER, and in the end it cost us about $9,000. Now the thing is I knew the chiropractor on the more personal level. He was a teacher of mine. And I guess - well, the other day I was stumbling on line and I happen to come across this name, and he was in a, you know, find your chiropractor - find a local chiropractor and it said write a review. And I feel like he put himself in that area of opening himself up to review, but at the same time I feel like I was sharing a bit more of my opinion. And I was wondering where the lines are on free speech versus opinion, and honestly I felt an obligation to tell people, you know, just keep your eye out.

PALCA: Yeah, interesting. Well, Daniel Solove, does that - I mean, well, let's play "Dear Abby" what would you advise Kayla to do in this circumstance?

SOLOVE: Well, I think that these reputation sites in certain cases can be OK. I mean, obviously I think that if someones holding themselves out as a professional, a doctor in their professional arena, reviews can be informative and a valuable thing for people and patients and consumers and others. So I'm not inherently opposed to it. I think we need some care because if a doctor is unfairly attacked on these sites, it could potentially affect their livelihood unfairly. My main concern is less with that and more about people spreading gossip and rumor about other people and their private lives rather than their ability to perform, you know, professional services in their professional capacity. Because I do think that the value of the information about someone's private life is not the same as information about a doctor or information about a company. I think that we need to make sure that people's private lives are protected, especially young people who could - you know, their entire lives could be affected by information that is out about them in their high school days.

PALCA: Right.

Mr. SOLOVE: And so I do think that that is - presents a very different set of concerns for me than the example of the doctor.

PALCA: Right. Kayla, thanks for that call.

KAYLA: Thank you. I've been grappling with it since I wrote the review whether it's the right thing or not (laughing), so thank you.

PALCA: Right, OK. Thanks. Well, we actually have an email here from David in Citrus Heights, California, who at least offers a potential solution. He says, anonymous posts should not be allowed. There should be no censorship, but those who defame or libel others have to held to answer for such.

And I guess what I'm thinking is, you know, even in Kayla's case, if she is going to say something, it would be good if she - full disclosure - would say who she is, how she came to this and this was her experience. What about that as a way of solving the problem, Dan Solove?

Mr. SOLOVE: I wouldn't go that far. I think that anonymous speech is very important. I think that it's protected by the First Amendment to the Constitution. And there are a lot of messages that people might want to express that are not popular messages. They might want to critique their boss or somebody they know, and not want to be retaliated against. And so I think that we can't just do a blanket restriction of free - of anonymous speech. I think that's way too dangerous and chilling to free speech. However, I think that there should be - there's a difference between being anonymous and being completely untraceable. And I think that if - in certain circumstances people should not be untraceable. So they certainly would be able to post something anonymously, but if that comment winds up being defamatory or is invasive of privacy, I think they should be traceable, so that with the proper legal procedure that person's identity could be revealed - but only with the proper legal procedure.

PALCA: All right. Let's go now to Sarah(ph) in Tacoma, Washington. Sarah, welcome to the program.

SARAH (Caller): Hello. Thank you for taking my call. I - nearly a year ago I had a very close friend of mine who was physically abused by her boyfriend and obviously now, her ex-boyfriend, and we took all the legal matters, we filed a restraining order. And consequently, within this last year, he has proceeded to go onto the Internet, post blogs about her under a false name. He broke into her email and has cost her a few jobs. Also, due to her pseudo-celebrity status here in the state of Washington, pictures were leaked on to the Internet and the press was anonymously called, and it has just cost her dearly over the last year. And, well, when we approached the police with the information, with the IP addresses and, you know, with the restraining order, it was kind of blown off. And I feel like from now on, you know, her reputation will always be, you know, taken into account as all these different things that were posted about her and these falsities and these untruths that this gentleman, who has hidden in a cloak of false names and has not been - you know, the only person that has been hurt is her and her family.

PALCA: Right.

SARAH: And I feel like the Internet has been this, you know, place for him to continue to violate her as a victim.

PALCA: No, no, I...

SARAH: Over again. And I just wonder about, you know, who regulates and how can we help these, you know, these victims who truly are being defamed - their characters are being defamed?

PALCA: Well, it's a clear problem. Nicole Wong, what do you - I mean, first of all, does this sound at all familiar to you, or have you come across things like this, and what should be done?

Ms. WONG: I think the caller identified two issues. One is the content that's offensive and put up there to harm her friend and how to get that removed or make it not findable anymore. And the second is the accountability for the person who put it up there. And I think those are two separate issues which probably call for two different answers.

The content part of it seems to me to be in part - there are existing causes of action that one can bring to get content removed - defamation, invasion of privacy - those exist. And the question is how to do that effectively and work with companies to make that happen, in addition to companies that have terms of service that don't permit certain types of content on their services.

The other, in terms of accountability for users, I think I share with Dan that you don't want to take anonymity away from the Internet in terms of free speech, because there is so much that's important about, for example, political dissidents in our country or other countries that rely on that anonymity to speak safely. On the other hand, having the right legal processes in place so that people who are victims can - holds the person accountable, need to be put in place as well. That's easier in our country, where we have rule of law and specific processes. I think that becomes a really difficult thing when you're talking about Egypt or Vietnam, or other countries.

PALCA: Right. We're talking about what rules should govern the Internet. You're listening to Talk of the Nation from NPR News.

And we'll take another call now and go to Susan(ph) in Aurora, Colorado. Welcome to the program.

SUSAN (Caller): Oh, well, good afternoon and thank you.

PALCA: You're welcome.

SUSAN: By - she just barely touched on what I was going to mention, and that is, how if you put any controls on this at all, would you control foreign countries using the Internet and abusing someone's personality or whatever they do. And I'll take - I'll listen to you on the radio.

PALCA: OK. Thanks, Susan.

SUSAN: Thank you.

PALCA: You've had it coming the other way, where company - countries have tried to stop your content appearing in the country. What about where somebody in a country tries to, does something that we don't feel comfortable in this country?

Ms. WONG: That's - I suppose we're somewhat lucky, in the sense that the First Amendment has so broadly protected speech in our country that you tend not to see other countries with more aggressive speech laws than our own. We definitely, though, run into conflicts in terms of what's permissible in their country, what's permissible in our country, and all of those countries are trying to work it out. The interesting thing, I think, that's happening right now is, you know, the Internet grew up for its first decade of life largely in the U.S., Europe, Canada, Australia, Japan, countries that largely held the same sort or values about appropriate speech and privacy. We're now seeing Internet penetration into another generation of countries - Turkey, Egypt, Saudi Arabia, all through Southeast Asia. And those countries don't come from the same baseline. So I think in the next 10 years we will see a lot of this type of conflict and hopefully resolution and figuring out how to work things out.

PALCA: Right. Let me just ask you, finally, Dan Solove. Is this a huge problem, a giant problem, a modest problem, or just a problem? I mean, how important is it that we wrestle with these things?

Mr. SOLOVE: Well, I think it's very important, because I think the Internet is one of the major ways of communication. And if you look at, especially, the younger generations, the people in high school and college today, they all have an online presence. They're all communicating online. The ability to capture information offline just about our daily occurrences with cell phone cameras, with various other cameras, is increasing. And so privacy is of immense importance and is really threatened by all these potentially wonderful developments, but they have this dark side. And I think we need to regulate that dark side or else people won't have the ability to change and have a second chance. And there's going to be all these fragments of information about people that are going to be used to judge them, often in fairly hypocritical and hasty ways that could be very unfair and could be very limiting to their freedom. So I think it's...

PALCA: We have...

Prof. SOLOVE: It's an issue of freedom versus freedom.

PALCA: OK. (Laughing) Well, we have to leave things there. I'd like to thank my guest Daniel Solove, He's a professor at George Washington University Law School. Also with us this hour was Nicole Wong. She's deputy general counsel at Google. Thanks to you both.

Up next, "Slumdog Millionaire" struck gold at the Oscars last night. The author of the book behind the movie joins us and takes your call. I'm Joe Palca. It's Talk of the Nation from NPR News.

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