When does the oppressed become the oppressor?
I remember reading a TechCrunch article around the start of the year, which talked about how the EFF defended three anti H1-B websites that were taken down due to defamatory messages against Apex Technology Group, an IT staffing and consulting services firm. [For those not in the know, an H1-B visa enables foreign nationals to work full-time in American corporations] Here’s a link to the article: http://tcrn.ch/cUsg3T
There was some shocking language on display, and as the article demonstrates, it was decidedly racist, and promoted hatred. Why, one of the posts was an open threat: the author said he would “stop blogging” if a senior official in an Indian IT firm was killed. Armed with some (basic) legal knowledge, I decided to visit the EFF blog post to understand their stand better.
The core of their argument is this: should an entire website be taken down due a few defamatory messages? The First Amendment should apply, unless there is a “clear and present danger or a serious and imminent threat to a protected competing interest”, or less restrictive measures are not available. Aren’t these serious threats though? Or do they suggest that these exceptions don’t apply in case of foreign nationals?
A reference is also made to section 230, arguing that websites should be protected from claims against them due to information published by another “information content provider”. However, I am not convinced that propaganda websites in this example can be classified as an “access software provider”, since they are essentially a forum for hate speech. Which also raises the question – when does free speech cross over to the dark side, and exhibit the properties of hate speech?
It seems as though EFF’s concern was based not so much on the actual content of the posts, but the fact that the entire website was taken down. The usual precedent was just taking down the questionable content from the website. However, the author of the EFF page (which can be found here: http://bit.ly/5S76b6) admitted that he hadn’t even read the disputed content.
Our readings for the Freedom of Expression lecture seemed to touch the issue, but none of them examined it in detail. The proceedings of the ACLU v. Mukasey case pointed to how content being objectionable was relative. Berman & Weitzner suggest that interactive media meant a lesser need for regulation – but doesn’t user controlled content introduce a bias of its own? The UN Joint Declaration asks us to differentiate between incitement and glorification of terrorism. If we adhere strictly to the definition of incitement here, we can find some justification for the NJ court’s ruling against the websites. However, the distinction may not always be that clear. The line between simply expressing one’s views and encouraging hatred is blurred, and the emergence of interactive media only means such occurrences would be more commonplace.
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