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Squelching dissent

This column originally ran in ComputorEdge on May 18, 2007
(Issue 2520, Better Than a Human)

Free speech is a funny thing: Everyone wants it for themself; few want it as badly for those who hold views contrary to their own. Civil libertarian (and giant of jazz journalism) Nat Hentoff even wrote a book about this double standard with the wordy but spot-on title of "Free Speech for Me but not for Thee."

We see this very human desire to silence those who dare disagree with us in action on the Web every day. While that pesky First Amendment to the U.S. Constitution prevents the government from regulating much of anything beyond child pornography and some private corporate or national security documents, that doesn't mean that others aren't trying to squelch those who won't parrot the accepted wisdom or party line.

The First Amendment is a two-edged sword, after all. The same right to free speech that allows us all to speak our minds without fear of the government punishing us also means that no one who publishes a newspaper, owns a TV station or hosts a Web site has to provide a forum for those with whom they disagree.

And so most newspapers have rules about civility in their letters to the editor section, most TV stations don't show out and out pornography (although some shows of late come awfully close to what was once euphemistically referred to as "soft" porn), and an increasing number of online services are restricting what you can discuss in online forums, on your own domains they host, and even in e-mail.

All these rules are contained in the terms of agreement we all click on as accepting without ever reading.

Those of us who have read them generally have little problem with them: You can't use your free Yahoo e-mail account to send spam, pirated files or threats, for instance. You're not supposed to use your MySpace account to feature pornography (although that stipulation gets defied several tens of thousands of times per day, to judge by my "friend requests" from porn sites).

But of late, there has been a growing willingness of companies in various online hosting ventures to restrict the acceptable political content of their customers.

Nationally syndicated columnist Michelle Malkin, for instance, has been waging a campaign to get YouTube to explain why her video about the infamous Mohammed cartoons (which included video footage of some of the Danish cartoons that were cited by rioters across the Middle East, although not until several months after they were published) was removed.

YouTube has since been acquired by Google, and one supposes the terms of agreement updated.

YouTube's interface still allows anyone to click a simple icon on any page to request it be removed as "offensive" – but YouTube staff are supposed to review the material in question before removing it.

Which brings us to the crux of the issue: Most sites' terms of agreement contain a clause allowing the company to remove any material deemed to be "offensive."

That's a mighty loaded word, "offensive." And slippery, too.

Offensive to whom is the first question one has to ask. And who gets to decide?

In early April, CafePress – a Web site that allows anyone to upload high-rez graphics and then create a virtual store to sell t-shirts, coffee mugs, caps, mouse pads, etc., with said graphic – sent out an update to its user agreement, containing a link to its "content policy" that has that handy catch-all "offensive" clause.

To wit, the CafePress content clause reads:

"Material that is generally offensive or in bad taste, as determined by"

So CafePress gets to decide what is offensive.

For now, there are still products available that advertise one's opposition to same-sex marriage. But what if a gay rights group complains? Will CafePress remove them? Who knows?

Further down, the content clause reads:

" will determine, in its sole and absolute discretion, whether your content is in compliance with the guidelines outlined on this page and the Content Usage Policy (CUP). Any content that is determined to be in the Gray Zone may be subject to removal, in accordance with CUP, the Terms of Service and Shopkeeper Agreement."

For sure, you can't put up anything with a swastika on it – or can you? While the content policly prohibits "Items that make inappropriate use of Nazi symbols and glamorize the actions of Hitler" (take that, First Amendment!), there are literally dozens of items comparing the current president to Hitler (which doesn't speak well for our society's understanding of history).

In addition, while you can't have any "Content that glamorize the use of 'hard core' illegal substance and drugs such as a person injecting a vial of a substance in their body," there are hundreds, maybe thousands, of items with marijuana leaves prominently displayed.

Not to pick on CafePress, because its terms of agreement aren't substantially different from anyone else's.

But CafePress has positioned itself – marketed itself – as a tool for small organizations and individuals to be able to get their message out in a cost-affordable way – again, by selling t-shirts, caps, coffee mugs and more with their logo or other graphic.

When a company like that starts putting limits on what constitutes an acceptable message, things are getting a bit dicey for free expression online.