Regression to the Mean...or the Elusive Norm?

• By Phillip D. Long
• 06/27/02

Faculty are increasingly encouraged to extend their teaching to incorporate the Web. For some faculty this is an opportunity to augment the face-to-face experience with additional activities that stimulate students to engage in the subject between class meetings. University officials want to market their brand of technology-enhanced educational experience to prospective students. Much of this effort results in gratuitous bits—often pushing educational practices into the electronic world that are just as questionable in the classroom. Thoughtfully done, teaching with the Web can bridge student experiences, learning styles, and parochial world views. However it is presented, it risks litigation from anyone who finds the information libelous to his or her local interests—anywhere in the U.S. or maybe even around the world. This might not be so worrisome to those teaching science and math, but consider the political scientist or sociologist.

The Internet was intended to be, ideally, a commons of the mind—a place where the free expression of ideas competed for mind share through the power of intellectual argument. If you disagreed or found an idea unappealing, you could publish your own perspective—everyone was a potential writer and publisher. Or, you could engage in debate either through the feedback options available from the Web site itself, indirectly via your favorite chat room or discussion board, or directly with the author. Equally, you could click your mouse and move on, choosing another posting, or surfing to another site on the vast sea of the Web.

A faculty member who posts written material that describes an event or an action with the intention of provoking the students to think critically is challenging her students to discuss alternate viewpoints. But if an article is read by someone in another geographic community who is offended by the argument—indeed, someone who might embrace the viewpoint being criticized—you could find the ensuing discussion more than pedagogical.

Consider the following example: Your course is on criminal justice. Your topic is the current practice by some municipalities of renting out cell space for violent offenders to accommodate prisoners from jurisdictions in other states. This prisoner relocation policy is a hot topic in criminal justice circles, and a fine jumping off point for class discussion, until someone in a state far from your college is offended by some characterization of his or her fine house of incarceration described in a document on your course site. You, or your institution, might be calling a lawyer next.

This isn’t hypothetical. Call it, “drawn from the headlines.” Specifically, a federal district judge in Big Stone Gap, Virginia, ruled that a libel lawsuit filed by the head of the Wallens Ridge State Prison could proceed against two Connecticut newspapers of the Tribune Company, because the papers’ Web sites were accessible in Virginia, and the purported damage to the prison official’s reputation would be felt there. The articles from which the alleged libelous accusations stem were by reported by the Hartford Courant and the New Haven Advocate. These papers were following a contentious local issue and public debate about Connecticut’s decision to send inmates from its own prisons to high-security prisons in Virginia.

The Tribune Company has appealed, and as of this column’s writing, the appeal is pending. But the implications are worth considering. What constitutes controversial, potentially libelous material in a publicly available Web site-for example, your course site? Are the standards by which the controversy will be judged based on community standards? If so, whose community—the community of open discourse about ideas, a higher education community that emphasizes freedom of expression and an individual’s right to convey her or his ideas? Or, the d'es the discussion face the scrutiny of a small community in a particular rural portion of the U.S. that may not agree that the subject of the course should be taught, much less debated?

This concern predates the Internet. Back in the days of dial-up bulletin board systems, the 6th Circuit ruled in United States v. Thomas in 1996 that a subscription pornography service which operated with servers in California but members in Tennessee could be tried in Tennessee simply because their content was accessible there. While a recent Supreme Court ruling raised concerns about the broad application of this ruling because the owners of Web sites have little control over where their material might be downloaded, it did not clarify the matter further, leaving it to be argued in some other, future case.

This might be a reason to limit access to your course site behind a password or other security mechanism to limit who can see your content, but doing so is simply putting off the issue. It flies in the face of the notion that controversial ideas should be openly aired rather than restricted to a limited community.

Then there’s the problem of globalization. If your ideas are subject to community standards from any particular location in the U.S., you would be wise to remember the boundary-less reach of the Internet. Laws and customs about what is and isn’t appropriate for social discourse and business vary widely from country to country. Barron’s (www.barrons.com) is learning this now. A businessman in Melbourne, in the state of Victoria, Australia, sued the financial weekly for libel, taking issue with how his dealings with local Australian religious charities were characterized in its online edition. The case was taken to a court in Victoria to which the Dow Jones & Company, owner of Barron’s Online, appealed based on the location of its Web server farm—New Jersey. A lower court in Australia ruled this past August, saying that because the Web posting was read in Melbourne, it was therefore “published” there and so fell under the state of Victoria’s jurisdiction. Welcome to the World Wide Web!

The preservation of intellectual discourse requires that different points of view can be expressed without fear of reprisal. Of course, intellectual discourse d'es not condone slander or libel. But the Internet poses a key question: What peer group judges how a difference of opinion about inappropriate expression will be settled, if such disputes are to be adjudicated against some assemblage of peers at all? It’s not an easy question to answer. Witness our inability to agree on the free practice of religion around the world. Is the very notion of the right of self-expression American ideological hegemony in a global commons? I hope not, but the question of what can be said, and where, is something educators must confront when considering open access to their course sites.

There are a host of other issues in this arena that merit continuing attention. Many involve the Digital Media Copyright Act (DMCA). Take a look at the Electronic Freedom Foundation’s ongoing reporting and participation in the DMCA litigation at www.eff.org/Legal/recent_legal.html. A joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, and University of San Francisco law school clinics, the Chilling Effects (www.chillingeffects.org) Web site helps you understand the protections that the First Amendment and intellectual property laws give to your online activities. Finally, the Thomas Jefferson Center for the Protection of Free Expression (www.tjcenter.org) has an active program that seeks to help protect the rights of others to express views different from their own.

A creative response to the concerns about online licenses and copyright has emerged through the Creative Commons Project (www.creativecommons.org). The goal of this effort is to provide help to artists, programmers, and others who want to share their work instead of restricting access to it through traditional copyright protections. The intention is “to make it easy for people to find works that are in the public domain or licensed on generous terms.”

Only by using the Internet to freely express ourselves can we ensure that it will continue to be a forum of creative ideas. But be aware of the risks, and be prepared. Freedom of speech is not for the timid.