Jack Balkin
Jack Balkin is up. He presents three problems:
first, what are the different forms of cyberprotest, and how do they relate to the freedom of speech?
second, what is the conflict between freedom of speech and other rights (let's clump those rights as “property”)?
third, why is cyberprotest difficult to do?
First, point of freedom of speech is to support democracy.
Think about different forms of cyberprotest as different forms of technologies; eg, sit-ins, hack-ins, allow small cells to do information-sharing (to get around filters), google-bombing (more). You can divide types of cyberprotest that enhance free flows of information (routing around) from those that block the flow of information. Both types can be disruptive — but in different ways.
But this is a rough cut: Although the idea of freeing information sounds “good,” and the kind of thing activists would be interested in, there may be times to limit the flow (viruses, worms, child porn). Central question is under what conditions is it a good idea to use code to free up the flow of information.
Second: You have a factory, people organize, decide to walk out. Is this freedom of association/speech or criminal conspiracy and destruction of expected profits. Beginning of 20th century, walkouts are seen as destruction of property. Then a big debate over what part of this we call speech and what part we call destruction of property.
This is the same problem we have with cyberprotest.
Three phases of protest: first, courts say this is conspiracy and destruction of profits; second, courts say this is freedom of association and speech (AFL v. Swing, eg). Labor unions have right to organize, even if action lowers profits. So we get to the third stage: now labor protest treated as a highly regulated subject, treated in labor law. Completely out of the First Amendment category.
Balkin is not saying these same three stages will happen. But boundary between speech and destruction of property is not a fixed line. It changes over time through social movements. So our view of what's “appropriate” for cyberprotest will inevitably change.
Back to the first rough cut: blocking v. facilitating. That's too simple. But there's no a priori way to divide what's cyberprotest and what's destruction. Dead cow (Oxblood Ruffin hacktivist group) focuses on routing around, which seems appropriate to Balkin. They also, interestingly enough, say that they don't want technologies to be used for ”illegal” speech (like child porn). But what's the baseline for determining what we think of as illegal speech? Dead cow seems to be working with US baseline re what's “illegal”. But that choice of baseline is worth talking about. An important question.
Third point: what produces the development of technologies of cyberprotest. Answer: The Temptations. Balkin will explain the link.
The key problem in cyberspace speech is proximity and attention. Have to get the attention of your audience, and have to get next to them (picket around them). Find some place where people interested in your speech will listen to you.
Balkin student wrote a paper about cyberprotest. His conclusion was that internet didn't create spaces in proximity to other spaces. You can move easily around, but you can't interpose yourself between audience and person you're criticizing. Everyone is your neighbor but you can't get next to anybody. “I Can't Get Next To You, Babe” — that's The Temptations.
Virtual worlds allow this kind of proximity. Eg, Third Voice required that the audience join in, to get attention of people who agree with you AND disagree with you (and have no idea you exist). [what about Gator?] Interest in 1A is also to encounter people you don't know. Eg, parody sites! Will take creative minds to design these spaces that will solve problem of proximity and attention. When they arrive, let's not assume that they're destroying property, but decide whether they're promoting basic democratic values of routing around and glomming on.
Bravo!
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