Trilight Zone

[digital8]

What happens when one’s good intentions materialize badly? What defense do those have who risk themselves in the pursuit of helping others? How do those who have supreme power deal with an entity they fear? Simple - They demolish it, and all involved.
About two years ago, I, along with a few friends, formed a webpage intended for use by the other students at my small New England private preparatory high school. In two days, when I return from vacation, I will face expulsion. Why? Because a few immature kids posted defamatory messages against other students and the administration visited the site before I could censor the messages.

A little background about myself:
I’m hardly an intimidating figure. I stand an impressive 5’10”, weighing in at 145lbs, or as I like to say, just under 200. I do not violate school policy – at least in the ways most of my fellow students do, i.e., drugs, alcohol, or girls. Apparently, this time I did. I maintain(ed) a website containing weekend activities, pictures from school events, recordings of performances that I had done on my free time, recaps from sports games, and of course the occasional jest at a humorous situation. The only problem was, I wasn’t getting many hits. When I asked students what feature of a school based website would make them visit more frequently, the majority said a real-time, uncensored message board. So I figure, what the hell, and I threw one up.

Within two days I had triple digit hits every day, the number increasing steadily each day. The number of posts grew exponentially, and while many were thoughtless, the number of intelligent things being said started to become a substantial amount. I was filled with optimism and the hope that I could actually make a difference. Students would forever have a place to express their ideas and beliefs without feeling direct physical pressure from peers or adults. Well, that hope is no longer.

A day or two before holiday vacation, the administration, as one would imagine, found out about the site. While I thought they would be less than amused, I never envisioned that they would force me to shut it down. But they, along with a few larger students, did. They did so on the basis that it led to the discovering of indiscretions of a few pupils, and also that it led to the attempted self-infliction of pain by one of the kids discussed on the message board. While I feel badly about these happenings, in no way do I feel responsible for what happened. I wasn’t the one smoking. I wasn’t the one drinking. I didn’t unzip my pants that night. If you are of the mind to take things said on the internet too seriously, you obviously have deeper problems. There are going to be people that dislike you in the world, and if they don’t say it on the internet, it will be on the bathroom stall, on a napkin, or by some ladies in a hair parlor. Get over it.

Just today, I was speaking to a good friend of mine, whose parent happens to be a school administrator, and he alerted me of the school’s newest scheme. They invented a rule that states “no student can provide a platform for discussion which is derogatory of members of the community”. How immoral is that? Now, you’re probably thinking, ‘ex post facto’, they can’t do that. Well, it’s a private school, they can do anything.

I spoke to a lawyer friend, and he told me exactly what I feared. The school is actually classified as a ‘business’, so they can make, break, and otherwise bend rules as they please – they are their rules. He advised me however, that if I were to find court cases supporting my arguments, the administration might actually listen. I mean hey, if you aren’t going to listen to me, at least listen to the United States Supreme Court. This is what I found.

In my opinion, there are three issues with which to be dealt:
1) Is the provider of an Internet Posting Service liable for each and every word ever posted on the message board at all times.
2) Does/Do the poster(s) or the messages even have the right to do so.
3) Does/Do the poster(s) of the allegedly indecent message(s) deserve/have the right to stay anonymous.

INTERNET SERVICE PROVIDERS
Documents:

1) Communications Decency Act of 1996, specifically Section 230(c) and Section 230(c)(2)
2) Blumenthal v. Drudge and American Online, Inc.
Section 230(c) and Section 230(c)(2) of the Communications Decency Act of 1996 provide:
No provider or user of an interactive computer service shall be treated as the publisher of speaker of any information provided by another information content provider.
No provider or user of an interactive computer service shall be held liable on account of--
(A) Any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
• (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
47 U.S.C. ß230(c)(1). The statute goes on to define the term \"information content provider\" as \"any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.\"
Summary - U.S. District Court decision in Blumenthal v. Drudge holding that America Online is immune from suits arising from content posted on AOL but created by other parties, even though AOL played an active role in censoring the subject matter.
April 22, 1998
While Section 230 does not preclude joint liability for the joint development of content, AOL maintains that there simply is no evidence here that AOL had any role in creating or developing any of the information in the Drudge Report. The Court agrees. It is undisputed that the Blumenthal story was written by Drudge without any substantive or editorial involvement by AOL. Drudge Decl. II 46-47. AOL was nothing more than a provider of an interactive computer service on which the Drudge Report was carried, and Congress has said quite clearly that such a provider shall not be treated as a \"publisher or speaker\" and therefore may not be held liable in tort. 47 U.S.C. ß230(c)(1).
As Chief Judge Wilkinson recently wrote for the Fourth Circuit:
By its plain language, ß230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, ß230 precludes courts from entertaining claims that would place a computer service provider in a publisher\'s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher\'s traditional editorial functions -- such as deciding whether to publish, withdraw, postpone or alter content --are barred.
None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. While Congress acted to keep government regulation of the Internet to a minimum, it also found it to be the policy of the United States \"to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.\" Id. ß230(b)(5). Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties\' potentially injurious messages.
>>Begin Plaintiff Arguments:
Plaintiffs make the additional argument, however, that Section 230 of the Communications Decency Act does not provide immunity to AOL in this case because Drudge was not just an anonymous person who sent a message over the Internet through AOL. He is a person with whom AOL contracted, whom AOL paid $3,000 a month -- $36,000 a year, Drudge\'s sole, consistent source of income -- and whom AOL promoted to its subscribers and potential subscribers as a reason to subscribe to AOL. Pls.\' Mem. at 2, 7. Furthermore, the license agreement between AOL and Drudge by its terms contemplates more than a passive role for AOL; in it, AOL reserves the \"right to remove, or direct [Drudge] to remove, any content which, as reasonably determined by AOL ... violates AOL\'s then-standard Terms of Service \"Jennings Decl. 16 (quoting Exhibit C to Licensing Agreement I, Ex. A to Jennings Decl.). By the terms of the agreement, AOL also is \"entitled to require reasonable changes to... content, to the extent such content will, in AOL\'s good faith judgment, adversely affect operations of the AOL network.\" Id.
In addition, shortly after it entered into the licensing agreement with Drudge, AOL issued a press release making clear the kind of material Drudge would provide to AOL subscribers -- gossip and rumor -- and urged potential subscribers to sign onto AOL in order to get the benefit of the Drudge Report. The press release was captioned\' \"AOL Hires Runaway Gossip Success Matt Drudge.\" Complaint, Ex. 1. It noted that \"[m]averick gossip columnist Matt Drudge has teamed up with America Online,\" and stated\' \"Giving the Drudge Report a home on America Online (keyword: Drudge) opens up the floodgates to an audience ripe for Drudge\'s brand of reporting AOL has made Matt Drudge instantly accessible to members who crave instant gossip and news breaks.\" Id. Why is this different, the Blumenthals suggest, from AOL advertising and promoting a new purveyor of child pornography or other offensive material? Why should AOL be permitted to tout someone as a gossip columnist or rumor monger who will make such rumors and gossip \"instantly accessible\" to AOL subscribers, and then claim immunity when that person, as might be anticipated, defames another?
>>End Plaintiff Arguments

If it were writing on a clean slate, this Court would agree with plaintiffs. AOL has certain editorial rights with respect to the content provided by Drudge and disseminated by AOL, including the right to require changes in content and to remove it; and it has affirmatively promoted Drudge as a new source of unverified instant gossip on AOL. Yet it takes no responsibility for any damage he may cause. AOL is not a passive conduit like the telephone company, a common carrier with no control and therefore no responsibility for what is said over the telephone wires.11 Because it has the right to exercise editorial control over those with whom it contracts and whose words it disseminates, it would seem only fair to hold AOL to the liability standards applied to a publisher or, at least, like a book store owner or library, to the liability standards applied to a distributor.12 But Congress has made a different policy choice by providing immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others. In some sort of tacit quid pro quo arrangement with the service provider community, Congress has conferred immunity from tort liability as an incentive to Internet Service Providers to self-police the Internet for obscenity and other offensive material, even where the self-policing is unsuccessful or not even attempted.
In Section 230(c)(2) of the Communications Decency Act, Congress provided:
No provider or user of an interactive computer service shall be held liable on account of--
(A) Any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
• (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).
47 U.S.C. ß230(c)(2) As the Fourth Circuit stated in Zeran: \"Congress enacted ß230 to remove disincentives to self-regulation fearing that the specter of liability would deter service providers from blocking and screening offensive material ... ß230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.\" Zeran v. America Online, Inc., 129 F.3d at 331.14
Any attempt to distinguish between \"publisher\" liability and notice-based \"distributor\" liability and to argue that Section 230 was only intended to immunize the former would be unavailing. Congress made no distinction between publishers and distributors in providing immunity from liability. As the Fourth Circuit has noted\' \"[I]f computer service providers were subject to distributor liability, they would face potential liability each time they receive notice of a potentially defamatory statement -- from any party, concerning any message,\" and such notice-based liability \"would deter service providers from regulating the dissemination of offensive material over their own services\" by confronting them with \"ceaseless choices of suppressing controversial speech or sustaining prohibitive liability\" -- exactly what Congress intended to insulate them from in Section 230. Zeran v. America Online, Inc., 129 F.3d at 333. Cf. Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 139-40 (S.D.N.Y. 1991). While it appears to this Court that AOL in this case has taken advantage of all the benefits conferred by Congress in the Communications Decency Act, and then some, without accepting any of the burdens that Congress intended, the statutory language is clear: AOL is immune from suit.

FREEDOM OF SPEECH

Documents:
1) The United States Bill of Rights, specifically Amendment I
2) Flaherty v. Keystone Oaks School District, CA-01-0586

Quotes:
1) Justice John Paul Stevens
2) Justice Abe Fortas
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Unlike television and radio, which has a limited channel capacity and affords viewers little control beyond the channel button and the on/off switch, every Internet user is a publisher with the capacity to reach millions of people at very low cost. Individual Internet users also have tremendous control over the content they receive online, and can prevent themselves from viewing objectionable material, whether explicit or otherwise, by employing inexpensive and easy-to-use blocking and filtering technologies which can filter based on the individual tastes and values of the user, not the school administration or federal government.

\"As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.\" -- Justice John Paul Stevens, writing for the majority

\"…schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are \'persons\' under our Constitution.\"
Justice Abe Fortas, Tinker v. DesMoines

November 18, 2002
PA High School Pays $60,000 to Student Who Was Punished for Private Internet Message
PITTSBURGH - A local school district has agreed to pay $60,000 in partial settlement of lawsuit brought by a former student who was kicked off the volleyball team because he posted an Internet message criticizing an art teacher. Jack Flaherty, who in March 2001 posted a message on an Internet bulletin board devoted to Western Pennsylvania High School volleyball. The message said an opposing player’s mother, who is a district art teacher, was \"bad\". Upon learning of the message, Keystone Oaks School District officials kicked Flaherty off the volleyball team, prohibited him from attending any after-school events, and forbade him to use school computers.
When the ACLU first filed the lawsuit, Judge Donetta Ambrose immediately ordered the school to reinstate Flaherty’s computer privileges. After further review, she ordered the school to reinstate his volleyball and after-school privileges.

ANONYMITY
Quotes:
1) American Civil Liberties Union (ACLU)

Documents:
1) Dendrite International v. Public Citizen
2) 2TheMart.com, Inc. v. InfoSpace
\"Anonymity is a shield from the tyranny of the majority ... It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation--and their ideas from suppression--at the hand of an intolerant society.\"—ACLU
New Jersey Superior Court Rejects Arguments Made by Dendrite to Discover Names of Anonymous Internet Message Posters

WASHINGTON, D.C. -- Adopting arguments made by attorneys for Public Citizen, a New Jersey Superior Court has rejected a company\'s attempt to discover the identities of anonymous Internet message posters by going to court.

In the first appellate decision to address the issue, a New Jersey appeals court established stringent procedural and evidentiary standards that must be met before the identity of an anonymous online poster can be disclosed through litigation. The court recognized the constitutional right to communicate anonymously and refused to order the identification of a \"John Doe\" speaker who had posted comments on a Yahoo! message board.
Federal Court Upholds
Anonymous Speech on Internet
April 19, 2001
In a precedent-setting ruling on free speech in cyberspace, a federal court in Seattle today upheld the right to speak anonymously on the Internet. U.S. District Court Judge Thomas Zilly quashed a subpoena seeking to force an Internet service to disclose the identity of persons who spoke anonymously on an Internet message board. The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) represented J. Doe, one of the anonymous speakers, in blocking the subpoena.
\"This is an important ruling for free speech on the Internet. The court recognized that you should be able to express opinions online without having to worry that your privacy will be invaded because of a lawsuit that has nothing to do with you,\" said Aaron Caplan, staff attorney for the American Civil Liberties Union, an organization with an 80-year history of defending freedom of speech. \"You have the right to speak anonymously on an Internet bulletin board just as you have the right to distribute a leaflet using a pseudonym,\" added Caplan. Caplan argued the case on behalf of J. Doe before the court.
\"By ruling for Doe, Judge Zilly has sent a clear message that the courts will not tolerate lawsuits designed to chill online speech,\" said Lauren Gelman, director of public policy for the Electronic Frontier Foundation, a civil liberties organization working to protect rights in the digital world. \"We hope that this decision will force companies to think twice before they issue subpoenas, and encourage users to step forward and protect their rights if they receive a subpoena

In 1995, in a much-publicized case, the ACLU-WA won an out-of-court settlement for Bellevue student Paul Kim after his principal disciplined him for creating a parody of his high school
In an ACLU case in Missouri in 1998, a federal district court found that a school district had violated a student’s free speech rights when it suspended him for posting a personal Web page critical of his school.
Also pending is an ACLU-WA lawsuit on behalf of a Thurston County high school student who was suspended for a month in 1999 for creating a Web site lampooning his school’s vice-principal.


So, what have I learned from this whole ordeal?
A) Never openly challenge the values of a minority at a private school
B) Never try to help others if it will possibly negatively affect you
C) Free speech as a student is a figment of the imagination

Hopefully, if you ever run into a situation as this, my findings will serve you well – or at least better than they have served me.