Two stories of internet censorship, one very real, one not so much, highlight the possibility of both de jure and de facto internet censoring.
The first story comes from across in the pond in England. For some reason, Prime Minister David Cameron thought it would be a good idea to require ISPs to install safety filters to block children from accessing porn. Oh, think of the children. Customers (parents) can opt out of the filter.
Look at that choice!
From a policy perspective, this is terrible in more ways than I can count. Why should people have to affirmatively justify their need to look at porn (and you can be sure records are being kept about who opts out). What if two people share an internet account (roomates or couples), and one doesn’t want the other knowing that he/she looks at porn. This can chill so much conduct. Of course, the U.K. has no First Amendment, so sucks to that.
And, as could be expected, the filter is way too broad, and censors a whole host of sites that are not “hardcore pornography,” such as sex-ed web sites, and other risque blogs. Plus, it missed plenty of porn sites. And it took the internet a few hours to build a workaround.
The likelihood of the United States imposing a porn filter is close to zero. But, that is not to say that certain types of the undesired speech, lacking in social value, that may result in liability for ISPs may be censored from the internet in the United States, through a more indirect way (more on that later).
The second example has to do with this Duck Dynasty issue. I had only heard of this show because I teach Keeble v. Hickeringill and ask my students about duck hunting. Twitter blew up the other day with reports that Twitter was blocking people from tweeting to a website in support of Duck Dynasty, istandwithphil.com
But, it turns out, that website was flagged as spam. No doubt, someone who didn’t stand with Phil reported it as Spam.
Now, you may so, so what? Big deal.
But, for some time, because of Twitter’s filters, it was impossible to tweet about a web site that was expressing a very distinct form of speech. Tweeting that website, for some period, was censored. Thankfully, Twitter unblocked it.
But imagine if Twitter didn’t. Twitter has the capability to stifle wide swaths of speech, simply because someone finds it offensive.
Returning to my earlier point, imagine if ISPs could be held liable for posting certain forms of speech that people find undesirable, you can be damn sure similar filters will kick in to block that speech. No way Twitter will go to court for some dumb tweet.
And herein lies the paradigm for internet filtering if ISP liability goes away under Section 23o of CDA. We won’t need to be like the U.K. If we like our First Amendment, we can keep it. But the broad power of mediums like Twitter or Facebook to control the speech we see, even through indirect government nudging via liability, is extremely powerful.
I’ll have more about this soon.