Last week, Adam B talked about a case the Supreme Court will be hearing on April 25. While there's plenty about this case that's worth discussing, there was one question that -- at least in my limited, non-lawyerish, and very humble opinion -- seems to be at the crux of the situation. It comes at the end of the first of three issues he is concerned about:
The question, though, is whether saying "you can't do it on tv -- just use your website" is an effective substitute right now, a constitutionally sufficient alternative means of allowing these groups to speak.
I'll discuss this question out of context, as it should apply to all people equally rather than just the particular situation Adam discussed in his diary.
Let's start at the beginning. The issue we're talking about is Free Speech. I use capital letters here for a reason. We're talking about the grand ideals which we believe are held within the Constitution, not just simple words with dictionary meanings. So what are those ideals?
"Speech" should be pretty clear. It means any form of communication, including those that offend. However, irresponsible forms of communication (e.g. yelling "fire" in a crowded theater) are not protected. SCOTUS has traditionally upheld this interpretation (with possible exceptions), so I do not consider it controversial.
"Free" means that the average person should be able to easily, if not freely, afford the Costs of using any given medium as often as desired. (In this case, average refers to the median, not the mean. The mode might also be appropriate in certain cases.) The Costs need not be money, though that's what it usually boils down to. Thus, any medium, who's Costs over time make it unaffordable for the average person to use it as often as they desire, is essentially not Free due to the simple fact that it is overly restrictive of who can use that medium, effectively cutting off those who cannot afford it.
I admit that my interpretation of Free may be controversial, but I believe it is also more accurate than guessing every time. If we allow that Free applies only to those things which even the poorest or most disabled of people can afford, then there is no such thing as Free. Everything has a Cost of some sort, whether it be time, money, energy, or something else. As long as the Cost is not onerous, we will pay it freely. So when we look at the willingness to pay for the Costs, what we must remember is that we are looking at what the average person -- the person of median value, if you'll grant me the sufferance to phrase it that way -- is willing to freely pay.
From these separate interpretations of Free and Speech, we can arrive at a combined interpretation for Free Speech. That is to say, any form of communication (including those that offend) that can be transmitted over a given medium for a Cost which the average (by which we mean median) person can easily, if not freely, afford as often as they desire. It does not mean the average person may Speak irresponsibly. They cannot force others to Listen to their Speech, nor for that matter, does it guarantee anyone even need Notice it. (And I think you can gather the implications of my use of capital letters by now, so I won't belabor the point.)
Needless to say, any Speech which is not Free is Paid. Paid Speech allows those who are able to afford the Costs a greater opportunity to Speak than those who lack the Funds. Thus, Paid Speech infringes upon the Right of Free Speech and must be regulated -- the amount of regulation being concomitant with the (potential or actual) infringement.
Now, with these basics in place, we can begin to examine the issue at hand. We are posed two mediums of communication: TV and the Internet. Let us determine first if either or both are mediums of Free Speech.
TV should be pretty simple. The Costs of Speaking through this medium are greater than the average person can easily afford. Furthermore, much of the medium is self-censoring, banning "offensive" Speech. While we can argue about whether that censorship results in the loss of Speech, the fact that TV is not Free is enough to warrant regulation.
The Internet is a somewhat more complicated medium to examine. I think it's fair to say that, despite all the attacks against it, the Internet allows Speech, though I will still discuss it at some length below because there are limits in place that may not seem apparent. So we only need to answer the question of whether or not it is Free. That is not so easy.
According to a PEW study:
"While the percentage of Americans who say they use the internet has continued to fluctuate slightly, our latest survey, fielded February 15 – April 6, 2006 shows that fully 73% of respondents (about 147 million adults) are internet users....
And here's another report via Reuters:
Park Associates, a Dallas-based technology market research firm, said 29 percent of U.S. households, or 31 million homes, do not have Internet access and do not intend to subscribe to an Internet service over the next 12 months.
And this from (of course) a wikipedia article using data from a Nielson 2004 press release:
74.9% of Americans living in households with a fixed line phone have home access to the Internet. This amounts to 204.307 million Americans out of the projected 272.81 million who are at least two years old.
Also according to the wiki article, over half the people with internet access have a broadband connection. (Please, let us not get into a discussion over what speeds broadband should provide.)
So, we can be fairly confident that access to the Internet is Free. But access answers only one aspect of Free. If you have no access, you cannot Speak. But even if you do have access, you may still not be allowed Free Speech, much like with TV and radio, so we must continue with our investigation.
What is the Cost of Speech on the internet?
First, a Presence. You must have a place on the internet wherein you can Speak. Without that, you cannot Speak on the internet. Some places are Free, others are not. So, do the places that are Free offer a comparative venue to those that are Paid? That brings us to the second part of the answer.
Bandwidth. Bandwidth requires money. The more bandwidth you use, the more money you need. This should come as no surprise to anyone who's ever run their own website. Given this necessity, is it possible for the average person to be able to afford a Presence on the internet?
There are certainly a plentiful plethora of places where a person can go to set up a free website. However, not all of these hosts allow people to Speak Freely. For example, here is the first rule of freewebs.com:
Pornographic, obscene, nude, graphically violent, and other inappropriate content is strictly prohibited.
Whether you agree with this rule or not, there is no question that this host does not allow Free Speech. In fact, many free hosts have a similar "anti-obscenity" clause in their ToS. There are also some that still limit what files you can have on your website, along with limiting "extras" such as adding a forum or blog. Some may be even more restrictive. Luckily, there are other free solutions to most of these issues, so for the most part, it is not a problem. However, the "anti-obscenity" clause remains one of the most difficult impediments to Speech. So does this mean it is not possible to have Free Speech hosting?
Before answering that, let's quickly review why the anti-obscenity clause is such a problem. To put it simply, it is completely subjective. I think the following passage in the wiki article on obscenity is perhaps about as accurate as it gets.
The definition of obscenity differs from culture to culture, between communities within a single culture, and also between individuals within those communities. Many cultures have produced laws to define what is considered to be obscene, and censorship is often used to try to suppress or control materials that are obscene under these definitions, usually including, but not limited to pornographic material. Because the concept of obscenity is often ill-defined, it can be used as a political tool to try to restrict freedom of expression. Thus, the definition of obscenity can be a civil liberties issue.
Because of this, the US uses what is called the "Miller Test."
The Miller test was developed in the 1973 case Miller v. California[1]. It has three parts:
- Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
- Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions [2] specifically defined by applicable state law,
- Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.
The third condition is also known as the (S)LAPS test ((Serious) Literary, Artistic, Political, Scientific). The work is considered obscene only if all three conditions are satisfied.
This seems rather rational, all told. Yet when we look at free web hosts, we see that in practically every case, it is the web host who defines what is obscene. This effectively grants them carte blanche to delete anything you might Say simply because they would consider it obscene. Further, the average person likely can't afford the legal costs to fight that decision. And that is why the anti-obscenity clause is a problem.
Now, there are certainly hosts that will allow pornographic content for free. (I'll leave it as an exercise to you, my gentle reader, to find them.) However, pornography is only one form of "obscene" content. What about language or violence? I did as much searching as I was willing to do, and I believe more than the average person would be willing to do. I could not find any free web hosts that don't have their own anti-obscenity clauses for which they are the primary, if not sole definers. Perhaps web hosts exist which are freer, but the Cost -- time and effort -- in finding them is more than I believe the average person can easily afford. Of course, this also depends on how badly the average person would wish to host their own "obscene" content, so take my attempt with the appropriate grain of salt.
How about paid hosting? Are they similarly restrictive? To answer that, we must look at the different forms of paid hosting.
- Own and maintain a dedicated server. This is expensive in many ways, and not something the average person can afford. However, the owner may allow any content they choose within the limits of the law. While there are certainly laws defining "obscene" content, it is up to owner to comply with them. They are not at the mercy of a third party. Thus, in this case, money buys you the access to Speech lacking in free web hosts.
- Use your home computer. Again, this is expensive, especially considering the ToS most ISPs force on their customers. Most simply will not allow you to run a server on a home-based connection and will terminate your service if they discover you doing so. (A server is technically any application that is passive rather than active. For example, a website. It sits there doing nothing until you come along and ask for a page.) Some ISPs do offer "business" lines which allow you to run a server. But even so, you may run into bandwidth limitations. Nevertheless, there are ISPs that allow you to run your website as you see fit, so long as it remains within the law. Once again, money buys you the access to Speech lacking in free webhosts.
- Use a paid web hosting service. This is the least expensive option of the paid services, but they are still not Free. Even if there were no free web hosting services, the Cost of using a paid web hosting service would be too expensive for the average person to easily afford. But that doesn't answer whether these services offer a person the opportunity to use what some might consider obscene Speech. As I looked through the paid services, they all had similar ToS to those of free services. So what you get with paid web hosting services are more features, which is greater access to Speech than free services provide, but not as great as the previous two paid methods.
So with all that, let's summarize the situation before returning to the original question.
The average person does not have access to Speak on TV. TV is also regulated and censored. Thus we can easily conclude that TV is Paid Speech.
The average person (though far from everyone, still) has access to Speech on the Internet. There are few, if any, regulations concerning the Internet. What censorship occurs is minor, especially when compared to what's allowed on TV. This leads me to conclude that the internet comes far closer to Free Speech than any medium save face-to-face conversations, and for that reason, I would tentatively grant it Free Speech status.
So what was the question again?
The question, though, is whether saying "you can't do it on tv -- just use your website" is an effective substitute right now, a constitutionally sufficient alternative means of allowing these groups to speak.
There are actually two main questions to look at here:
- Is using the internet a constitutionally sufficient alternative to the TV?
- Is the internet an effective substitute to TV?
The internet is not only a Constitutionally sufficient alternative, but I would further argue that TV is not a Constitutionally sufficient alternative to the internet. There is nothing in the Constitution which says that people must -- or even should -- be allowed a greater opportunity to Speak (and be given a greater audience) if they're willing to pay for it. Congress may not abridge Free Speech, but it certainly can, and has, regulated Paid Speech. Thus, the internet is the better medium when it comes to Free Speech. It's just that simple.
As for an effective substitute, this depends upon your point of view. From the wealthy person's (or group's) point of view, the internet is less effective because they can't use their money to drown out other voices in that medium. From the average person's point of view, the internet is a vastly more effective substitute because the Cost is Free, providing them a medium of equality with the wealthy. I would put greater weight on the latter view as it serves to positively affect the majority of people whereas the former view serves to negatively affect them.
So there is the answer. For people and groups that are interested in getting their message out without trampling on others' rights to Free Speech, the internet is more effective than TV. This doesn't mean they shouldn't also be allowed to use the TV, but they must still abide by the regulations for that medium.
Some final thoughts:
When I started writing this, the whole Imus thing hadn't hit the fan, yet. So as I watched that scandal unfold, it became ever clearer to me that TV is an inherently unFree medium. A short press conference for the Rutgers girls basketball team in no way provided them the same Freedom to Speak the way Imus did on his show every day.
Also, I was (obviously) unable to finish this diary before the American Constitution Society's Thursday discussion panel which Adam mentioned in his diary. However, I hope that I have provided something worthy of further thought and discussion on this site. Thank you for reading, and I'll meet you in the comments.