Law in the Internet Society

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NatalieYoukelSecondEssay 4 - 13 Feb 2016 - Main.EbenMoglen
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There are two primary places where this argument needs to deal with fundamental objections, which we can call the legal and the philosophical intersections.

First, this is law school, so when we write about law, we do so precisely. The Supreme Court is a court, which decides cases. Whatever criminal law you think it should be willing to uphold some legislature must make and somebody must then litigate to challenge on First Amendment grounds. If you want to discuss such possible phenomena, you must be far more precise in doing so than you are here.

Whatever you may write on that subject, the central claim will involve the Court, it appears, in some "exception" you think should be made, which actually means, I think, that you want the Court to find under the relevant standard, which is strict scrutiny, that there is a compelling government interest being achieved by the most narrowly tailored means. You are going, therefore, in some context, to argue that a compelling government interest, presumably preventing children from taunting one another, is achieved by the means least restrictive of speech if we criminalize taunting by children. Perhaps you can make out such an argument, though I think it is exceedingly unlikely. At any rate, you must try.

Which leads to the second class of objection. I see no moral case whatever, either in this essay or in any one I can speculate up, for applying criminal sanctions to the horrible things children say to one another. We apply criminal law sparingly to acts of children because we understand that full moral responsibility for the consequences of their actions is not an appropriate expectation. To criminalize behavior of children that is not criminal in adults is, it seems to me, an absolute moral wrong. Moreover, the moral causation argument advanced here seems to me very flimsy. To say that suicide or other acts of desperation by children are caused by other children's savage words is just as evidently wrong as to say that a child who is killed by tetanus died of a cut, or that a child who freezes to death in the street died of inadequate clothing. In all cases it is clear that the child died because of inadequate care. We are accustomed to having a society so unrobust in its methods of caring for people (including but not limited to children) that its most vulnerable people, including those who suffer from mental distress and illness, are susceptible to crises—including those that cause hospitalization, suicide, and harm to others—precipitated by stresses that a healthy society would help its vulnerable members to weather or avoid.

In the same way, then, that it vindicates a small morality at the expense of the larger social responsibilities we like to ignore to imprison the drug addict or criminalize dangerous forms of self-medication for conditions we do not accept our responsibility to treat in the poor, the idea of subjecting children to criminal punishment for behavior the slightest acquaintance with literature will show is simply the universal reality of human child nature reduces to invisibility the real requirement to provide good mental health treatment as well as tetanus vaccinations in a public health context that reaches every human child in our society.

Could one, from a constitutional perspective, claim that the "more speech" of good psychotherapy for distressed young people is somehow not a superior alternative to the "less speech" approaches of social media censorship and outright criminalization? Why is harm done by speech any less capable of being righted by more speech here than in the case of sedition, or religious or racial bigotry, or any of the other contexts in which we express our most important and distinctive social value by the tolerance we show to the most repellent error where reason is left free, as Jefferson said, to combat it?

Thank you professor for your comments. After thinking about your comments and after re-reading my paper on cyberbullying I realize that the argument that I was trying to make, although the topic having meaning to me, has many many holes and counter arguments which I did not consider. For the revision, I have decided to try and make a similar argument regarding placing a limit on certain types of speech found on the Internet but I have decided to try and make the argument using a different type of speech. Instead of looking at cyber bullying I have decided to look at speech promulgated on the Web by terrorist organizations. When making my new argument I tried to take into consideration your suggestions surrounding the process of making and implementing such an argument. I hope this draft more clearly explains the justification and governmental interest for limiting speech and better explains the procedures for doing so.

This discussion doesn't make any sense to me. No one supposes that these "platforms" you are talking about are unable to make and enforce policies concerning what is published on their "platforms," or that they will not at government request make and enforce such policies with respect to speech advocating violence that falls far short of the clear and present danger required for securing judicial approval of prior restraint. The whole subject is a "red herring." Nor can we suppose, just "because the Internet," that there is something wrong with the particular proposition that government should not engage in prior restraints on speech unless the imminence of the consequences justifies preventing speech rather than dealing with those consequences on their own.

Perhaps we are to believe that there is something about this form of violence in society based on a complex mixture of religious and social strifes that justifies reversing the conclusion we built up over hundreds of years of experience with other forms of religiously- and socially-motivated violence. But those who framed and those who developed this body of our civil liberty were perfectly acquainted with the same problems that are supposed to justify the opposite conclusion here. Perhaps there wasn't any First Amendment thinker before Eric Posner whose views needed to be discussed. But I'm puzzled about why.


Revision 4r4 - 13 Feb 2016 - 17:59:26 - EbenMoglen
Revision 3r3 - 14 Jan 2016 - 17:57:49 - NatalieYoukel
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