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Date: Tue, 13 Nov 2001 18:14:51 -0500
To: Matthew Gaylor <<a href="mailto:freematt@coil.com">freematt@coil.com</a>>
From: Matthew Gaylor <<a href="mailto:freematt@coil.com">freematt@coil.com</a>>
Subject: Wendy Kaminer On Virtual Offensiveness
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<<a href="http://www.prospect.org/print-friendly/print/V12/20/kaminer-w.html>">http://www.prospect.org/print-friendly/print/V12/20/kaminer-w.html></a>
<p>
Volume 12, Issue 20. November 19, 2001.
<p>
Virtual Offensiveness
<p>
Wendy Kaminer <<a href="http://www.prospect.org/authors/kaminer-w.html>">http://www.prospect.org/authors/kaminer-w.html></a>
<p>
More than 15 years have passed since antilibertarian feminists
declared "pornography" a violation of women's civil rights, alleging
that it demeaned and objectified women. In the 1980s, the antiporn
movement enjoyed a lot of publicity and a little local legislative
success. But federal courts quickly struck down antiporn ordinances
that classified some sexually explicit speech as discriminatory and
offered women private rights of action against the producers or
distributors of non-obscene pornographic material. In American
Booksellers Association v. Hudnut, the U.S. Court of Appeals for the
Seventh Circuit stressed that government officials cannot prohibit
speech because they disapprove of its perspective: In America people
have a right to suggest that the sexual subordination of women is
preferable to sexual equality.
<p>
This was an important but limited victory for civil liberty. The
model antiporn law once promoted by feminists did not survive legal
challenges, but its underlying view of pornography as a civil-rights
violation has reframed debates about free speech. During the 1990s,
the equation of offensive or hateful speech with actual
discrimination successfully infiltrated both the courts and the
culture. Popular therapies confirmed that abuse could be verbal as
well as physical because people were fragile and apt to be deeply
wounded by words--especially if they were members of historically
oppressed groups, according to the politically correct left.
Employment-discrimination claims involving allegations of verbal
harassment proliferated; in one notorious discrimination case,
Aguilar v. Avis, the California Supreme Court upheld a prior
restraint against the use of "derogatory racial or ethnic epithets"
by an employee of Avis, the automobile-rental company.
<p>
So it's not surprising that a former subscriber to America Online has
filed a federal lawsuit complaining that AOL violated his civil
rights by not censoring hate speech in a chat room. Long before the
September 11 attacks, Saad Noah, a Muslim, charged AOL with ignoring
the harassment of Muslims in chat rooms devoted to discussions of
Islam and the Koran. He has offered numerous examples of moronic
epithets and obscenities directed against Muslims, all of which he
claims to have reported to AOL. Noah has a contract claim (in its
terms-of-service contract, AOL imposes severe restrictions on
"offensive" speech). He has also filed a complaint under the 1964
Civil Rights Act maintaining that AOL is a public accommodation from
which he and other Muslims have been effectively excluded because of
AOL's failure to punish anti-Muslim speech.
<p>
Noah's civil-rights complaint will resonate with liberals concerned
about "inclusiveness," but it's likely to be greeted skeptically in
federal court. Under the Civil Rights Act, the term "public
accommodation" has generally been construed to apply to physical
facilities or structures. In a 1993 case, a federal appeals court
declined to classify the Boy Scouts of America as a public
accommodation; and in 1995, the U.S. Supreme Court ruled that the
Saint Patrick's Day Parade in Boston was not a public accommodation
(and could not be prohibited from excluding gays).
<p>
<p>
Of course, the Civil Rights Act was written before anyone in Congress
could even imagine cyberspace. Today, many people can't imagine life
without it. Distinctions between virtual and real worlds are
diminishing, and it's easy to understand how an AOL chat room might
be deemed the equivalent of an actual place. Indeed, this is not the
first lawsuit that has tried to hold AOL accountable as a public
accommodation under federal law. In 1999 the National Federation for
the Blind sued AOL under the Americans with Disabilities Act for
failing to provide adequate access to blind people through special
software. (The suit was settled.) But if the concept of a virtual
public accommodation makes sense to denizens of cyberspace or
enterprising lawyers, courts may decline to expand federal laws quite
so drastically, leaving the task of creating new civil rights in
cyberspace to Congress.
<p>
In any case, advocates of Noah's civil-rights claim should note that
the view of AOL as the proprietor of a public space could be used to
expand--not restrict--the speech rights of its inhabitants. From the
perspective of many AOL users, a chat room may seem more like a
public forum than a place of accommodation, although current legal
definitions of public forums are no more likely to include AOL than
are current definitions of public accommodations. AOL is a private
entity, and the application of public-forum law to private spaces is
complicated and controversial. The Supreme Court has declined to
classify privately owned, publicly used spaces (like shopping malls)
as public forums under the U.S. Constitution, although a privately
owned mall may be deemed a public forum under state law because of
its public functions.
<p>
I know of no cases that have tried to extend public-forum rules to
privately operated sites in cyberspace, but I anticipate them. From
the perspective of an individual speaker, media giants like AOL
function like bureaucracies, controlling what is effectively public
space. And the more public the space maintained by AOL, the sharper
the conflict between the alleged civil rights of people offended by
hate speech and the civil liberties of people speaking. Everyone has
a right to walk down a public street, but no one has a right not to
be insulted there.
<p>
I imagine that AOL likes to regard this debate about speech as
irrelevant. It considers itself neither a public accommodation nor a
public forum, and in fact it would have relatively little to fear
from a civil-rights suit based solely on AOL's current status under
federal law. But if Noah is likely to lose on his civil-rights claim,
he may well prevail on his contract claim. AOL's service contract
with its users includes a speech code that would please the most
politically correct of college administrators. Users must agree to
provisions stating that their accounts are subject to termination if
they "harass, threaten, embarrass, or do anything else to another
member that is unwanted" or if they "transmit or facilitate
distribution" of "racially or ethnically offensive" speech. It would
be hard to devise a vaguer, more subjective rule than a prohibition
on "unwanted" speech; and I can't imagine why AOL thinks it can
orshould save people from ever being embarrassed. But having stupidly
imposed extreme restrictions on speech, AOL may be liable for failing
to try to enforce them.
<p>
So under AOL's contract, Noah could succeed in establishing his right
not to be offended in a chat room--at the cost of his own right to
offend or merely embarrass anyone else, even unintentionally. It's
hard to see this as a victory for civil rights. It's hard to imagine
how the civil-rights movement might have prospered with equivalent
restrictions on speech. Attacks on Jim Crow laws deeply offended a
lot of segregationists. Social change can be achieved without
violence, but it's rarely polite.
<p>
<hr>
Discuss this issue in the online forums.
Wendy Kaminer
<p>
Copyright © 2001 by The American Prospect, Inc. Preferred Citation:
Wendy Kaminer, "Virtual Offensiveness," The American Prospect vol. 12
no. 20, November 19, 2001. This article may not be resold, reprinted,
or redistributed for compensation of any kind without prior written
permission from the author.
<hr>
Distributed without profit to those who have expressed a prior interest in
receiving the included information for research and educational purposes.
---
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Interesting, funny but otherwise useless news!
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