Regression to the Mean...or the Elusive Norm?
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.
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What are the laws
governing online material and freedom of expression in other countries?
Georgetown University
maintains a partial listing of the laws pertaining to the Web in 20 foreign
countries (from Australia to Uzbekistan). See the E.B. Williams Law Library,
International and Foreign Law Department, Foreign Laws on the Web, www.ll.georgetown.edu/intl/jurisdiction.htm.
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Resources
Awards bringing
attention to privacy and freedom of expression
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“I know no safe
depository of the ultimate powers of society but the people themselves;
and if we think them not enlightened enough to exercise their control
with a wholesome discretion, the remedy is not to take it from them, but
to inform their discretion.”
—Thomas Jefferson, 1820
“Liberty of speech
inviteth and proveketh liberty to be used again, and so bringeth much
to a man’s knowledge.”
—Francis Bacon, The Advancement of Learning, 1605
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