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One of the most difficult concepts for some of my undergraduate students to grasp is that the First Amendment of the U.S. Constitution applies to _government regulation_ and is not a carte blanche for defamation. Just because there are limits on the kinds of speech that governments can restrict does not mean that all speech by individuals or groups is automatically free from consequences.
In later columns, I will be exploring the details of the legal framework governing speech, the definitions of protected (and unprotected) speech under the First Amendment, and definitions and consequences of defamation. Today I just want to address my students and anyone else who thinks that "It's a free country and therefore I can say anything I want to…" if they believe that the rest of the sentence is "…without consequences."
Back in 2005, a minor kerfuffle erupted when Prof. Brian Leiter criticized two organizers of the AutoAdmit discussion board. In a hard-hitting attack on the organizers, Leiter accused them of running a “Prelaw Discussion Board Awash in Racist, Anti-Semitic, Sexist Abuse.” Readers with a low offense-threshold may want to read that report with care, since the examples of racism and sexism are pretty sickening.
One of the fascinating aspects of the discussion is that the AutoAdmit organizers responded to criticism by stating that "We are very strong believers in the freedom of expression and the marketplace of ideas. This is why we allow off-topic discussion and almost never censor content, no matter how abhorrent it may be."
Prof. Eugene Volokh of University of California at Los Angeles Law School commented that private individuals may or may not choose to moderate discussion boards by removing objectionable or off-topic materials and that having strong responses by others to such racist and sexist postings may be a Good Thing.
He also added that there is nothing stopping anyone from moderating a discussion board if they so choose. I was the WizOp of the CompuServe NCSA Security Forum from 1991 to 1995. We had strictly moderated discussions where profanity, attacks on named religious or ethnic groups and _ad hominem_ attacks were removed from the board at once. We would write to the violators of our posted policies and explain that they could get their messages across perfectly well without being rude. Occasionally, we’d get back a rant from someone claiming that we were violating First Amendment rights by “censoring” speech; we had a stock answer we could paste into our reply that ran something like this:
"The First Amendment applies to _government_ restrictions on some types of 'protected' speech. We are not affiliated with any governmental entity; we are an entirely private organization and we can set whatever rules we wish. If we tell you not to use the letter e in messages, we may not get many postings, but we’re not violating anyone's rights. However, we don't remove messages because we disagree with the arguments or positions presented; we remove them only if they contain abusive language and attacks on groups or individuals. Abide by our rules or leave the Forum. And we will block you if you repeat your offenses."
M. E. Kabay, PhD, CISSP-ISSMP, specializes in security and operations management consulting services and teaching. He is Chief Technical Officer of Adaptive Cyber Security Instruments, Inc. and Associate Professor of Information Assurance in the School of Business and Management at Norwich University. Visit his Web site for white papers and course materials.