Freedom of Speech, Blogs, and Trollocity

Last week, the editors at Wizbang agreed to ban a poster by the username of Lee Ward. Mr. Ward had participated at the site for several years, and at one time enjoyed the rights to edit a spin-off site, Wizbang Blue, created to provide liberal alternative posts to complement the main site’s right-of-center political opinions. The Wizbang Blue experiment failed and Ward lost his editorial rights in early 2010. After that time, his behavior became disruptive, the consensus of the editors was that Ward made no effort to engage in debate but attempted to hijack or derail discussions he disliked. After a number of individual editors announced their intention to ban Mr. Ward from their articles because of his consistent abuse of commenting privileges, a decision was made to ban Ward from the site altogether. The debate, between the site editors and among commenters in a number of articles, including the one announcing Ward’s banishment, has focused on three key points – the right to free speech, the private ownership of the Wizbang site, and the quality of debate when a voice is silenced, for whatever reason.

First, the easy points. The First Amendment of the United States Constitution bans Congress from making any law which abridges free speech. There’s nothing at all in the Constitution that says a person can go anywhere and say or do anything they please, or that the people they attack or deride must put up with it. In fact, insulting a person can actually be illegal under certain circumstances; according to the free dictionary, “assault” is defined as ‘threat of bodily harm coupled with an apparent, present ability to cause the harm’. Those members of the New Black Panthers who stood in front of a polling place and harassed selected passers-by, for instance, fit that description, and so no reasonable person could claim they were merely performing an act of ‘Free Speech’. Obviously, the lack of physical presence seriously impacts the viability of a charge of assault viz a viz a blog comment, but I mentioned the definition for two reasons – first, the clear fact that speech has limits in a free society, and second, the foundation for the statute rests on intent – again referring to the legal dictionary; ‘Intent is an essential element of assault. In tort law, it can be specific intent–if the assailant intends to cause the apprehension of harmful or offensive contact in the victim–or general intent–if he or she intends to do the act that causes such apprehension’. One step back from an actual charge of assault, we see that the intent to attack is out of bounds. Keep that in mind, because I will come back to it. For now, it should be readily apparent that the Constitution of the United States restricts federal interference in religious and political speech, even if commonly found to be offensive. It does not protect a right, specific or implied, of an individual to attack another person or group in a non-federal venue.

– continued –

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The second point rests with the right to private property. People familiar with history understand the linear progression in the observance of property rights, with which I will not bore the audience, except to observe that private property is one of the fundamental rights in any free nation – without such rights the people are at the mercy of whomever controls the government. The counter-claim, that private property can also be used to create social injustice through the weight of mercenary influence, is refuted by the fact that all nations where private property exists, are also nations governed by law and regulated by representatives of the public interest, such as Congress and the various state legislatures and city councils here in the United States. The condition is not perfect but governance does exist in fact and function. With regard to speech as a right, privilege or condition of permission, when a person enters private property, they are bound by the rights of the property owner. This is neither new nor unreasonable. The State of Texas, for example, used to enforce a rule that anyone entering the Alamo must remove their hat or head-covering as a sign of respect to the fallen heroes of the Alamo (heroes of Texas, by the way); I don’t know whether they still do that but that rule is an example of how an entity in control of property can enforce rules of conduct. In fact, the maxim trotted out by exasperated parents-of-teens, ‘my house my rules’ is simply an extension of that same concept. A property owner may control behavior, bar or allow admittance according to his personal will and right to free association, or expel undesirables as he finds necessary (hence the use of bouncers and doormen as employees at certain entertainment establishments).

Weblogs are by definition private property, as they have clearly been created by a specific entity and control of the website belongs to that entity, whether an individual person or a group of people engaged in an enterprise. Like a brick-and-mortar establishment, the blog may impose restrictions on access or participation, such as registration for comments or membership requirements to read all or some of the material published on the website. It should further be noted that such restrictions are common on the most popular blogs for participation, and on those where certain behaviors are dissuaded, such as Democratic Underground or Hot Air.

These two points bring us to the third issue; whether the quality of debate depends on allowing everyone access to the stage. This may be considered with the analogy of a chess tournament. Consider that a certain chess club wishes to hold a tournament. They may set up the tournament in different ways, and one consideration is eligibility for the tournament. Should it be open, limited to members, or perhaps an invitation-only affair? The answer depends on what the club wishes to accomplish by the tournament. If the club is new or small, and the purpose of the tournament is to bring in new members, then the tournament needs to be open, in order to attract members who are not already part of the club. If the club is established and merely wishes to rank its existing members and to perform an orderly tournament without surprises or excitement, then the tournament should be limited to the existing members. If the tournament wants to produce a predictable result and build its name in connection to known masters, then an invitational tournament is the type which makes sense. And the same case is true for blogs. Many blogs start out as small enterprises, and so any reader is welcome and comments are treasured, even attacks from trolls. This allows the blog to build membership through traffic. Well-established blogs, however, may decide to lock the doors in order to conduct their business of discussion in an orderly manner, and such blogs may allow public entry but warn of consequences for poor manners. This is, I think, a reasonable description of Wizbang. Finally, there are blogs which enjoy a genuine business brand, and as such they protect the, hmm, climate of their sites by requiring registration and monitoring of members and comments. Bland as day-old oatmeal but safe. The opportunity for controversial comments, let alone troll raids, depends on the risk a site is willing to accept in hopes of increasing reader interest, measured against the distractions created by the incursions of antagonists.

But that addresses motive, not right to free speech. The right to free speech is not, however, linked to participation in a given website. In addition to the fact that blogs are not created or supported by government institutions and therefore cannot be morally connected to Constitutional rights, and the fact that blogs are private property and therefore the rules under which they operate are part of any blog’s identity, there remains the fact that anyone who not accepted at a given blog is welcome to join another, or simply write what they wish in their own blog. It is, quite literally, impossible to prevent someone from speaking their mind and making their opinion known. It is merely possible to control comments at one site. The question of rights is, at best, merely one more attempt by trolls to divert discussion from the site’s original focus.

Earlier I discussed the importance of intent. When discussing rights, it is important to recognize that in any debate the rights of both sides are valid to the extent that they focus on the topic or issue. Personal attacks and attempts to derail the topic are, in essence, admissions of failure, and therefore it may reasonably be said that troll behavior demonstrates that the offender has abandoned the discussion and, in the same way that a drunk is ejected from a bar for everyone’s benefit and well-being, a troll may be expelled from a discussion, either by having his ill-chosen comments deleted, or by other measures, up to and including banishment from the site. Once intent to subvert or deface the site is demonstrated, the offender has demonstrated intent which is incompatible with participation, even if no specific rule prohibiting such behavior has been published.

Some will note that in essence, this article merely states the obvious. While I agree that this may be so, sometimes the obvious must be said, and sadly, even then the message will not sink in to those who need most to consider it.

PS – For the record, I wrote the main article Wednesday evening. Jay Tea’s habit of rummaging through my brain (or I, unconsciously, through his) seems to have produced a similar article regarding our favorite village provacateur d’idiot. Hopefully, our different perspectives complement each other in this case, so there is benefit to reading both, rather than redundancy. The only danger is that Lee will merely note that he is indirectly or directly addressed in each post, and fail – as usual – to note the substance. – DJD

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