From: aq817@cleveland.Freenet.Edu (Steve Crocker)
Newsgroups: alt.censorship,alt.conspiracy,talk.politics.misc,alt.activism
Subject: Re: [alt.conspiracy, et al.] Censoring John Dinardo Violates Constitutional Law
Date: 7 Nov 1992 09:40:52 GMT
Organization: Case Western Reserve University, Cleveland, Ohio (USA)
NNTP-Posting-Host: hela.ins.cwru.edu


I responded to a post on the John Dinardo affair on comp.org.eff.talk,
and felt that some of the points in my post would be relevant on
this thread also, so I am reposting it here.

-Steve

<begin repost>
From: mc/G=Brad/S=Hicks/OU=0205925@mhs.attmail.com writes:

>Subj: RE>Usenet poster censored by site due to email complaints
 
>Umm...Steve...I hope that this doesn't disappoint you, you and I being old
>friends and so on, but I side with the system administrator on this one.
>While I tentatively agree with Carl Kadie that universities, having a
>tradition of academic and intellectual freedom to uphold, have some mild
>obligation not to censor on content, I believe (and I've always believed)
>that system administrators are legitimate autocrats over their systems.
>If you want a less restrictive bulletin board, conference, or Internet
>node, YOU pay the bills and assume the hassle of managing it.
 
> --------------------------------------------------------------------
> J. Brad Hicks                 | "I don't want to run the risk of
> mc!Brad_Hicks@mhs.attmail.com | ruining what is a lovely recession."
> or jbhicks@mcimai.com         |    - George Bush, 10/22/92
 

Hi Brad,

I think there are things going on at different levels in this case 
that should be distinguished.

Regarding the right of a Sysop or Sysadmin to control online user 
behavior - there is a sense in which I half agree with you. In the 
simplest case, an individual owner of a public access system, such 
as your former BBS Weirdbase has an absolute legal right to control 
access to his machine, and that is also a moral right as long as it 
is not exercised in substantively bad ways. (More on this below).

In the case of a large organization with a contractural relationship
to the affected user, the legal situation is more cloudy. I think a 
case could be made that usenet access is a benefit of employment, and
there may be applicable principles either in contract law or labor
relations law restricting the arbitrary denial of that access. This
is speculation, as I am not a lawyer.

Now to the question of moral substance. A a corporation is an odd
sort of entity - a mega-organization granted the legal perogatives of
an individual through legislative action. I would hold that the 
reasonable actions an observer might take if he/she determines that
the behavior of a site owner is morally questionable differ depending 
on whether that site owner is an actual individual, or merely a legal
one. If I feel that you behaved badly as Sysop of Weirdbase, I could
reasonably approach you and try to get you to see things my way. 
Failing that, if I am extremely aggrieved, I can organize opinion
against you in the on-line community, try to get people to boycott
your board, etc. 

In the case of AT&T, I cannot approach the corporation per se. I can
approach John's site admin, whose freedom of action is not absolute,
but is constrained by "corporate policy" as well as the real world
relationships within the AT&T organization. Failing to acheive a 
behavior change, I can approach the on-line community amd seek to build
a consensus that John's sysadmin acted badly in censoring him, and that
AT&T usenet policy is flawed by being unreasonably vague as to the 
boundary between permitted and excluded behavior. Since a corporation
is a legislative creation, I may also legitimately propose legislation
defining net.access as a benefit of employment, depending on the 
substantive manner in which it is offered, and legislating due process
protections for an employee threatened with a loss of this benefit.
I would say that net.access is arguably right up there with health 
insurance as an employment benefit about which legislation may 
legitimately speak. 

Then there is the question of whether John greviously violated 
ettiquette by posting in the manner he did. Posts I have seen on 
this run both ways, and I have not attempted a tally. At the very 
least we may say that there is no clear net.consensus on this point. 
Like so many other social values, nettiquette is in a state of flux. 
My feeling is that lacking a consensus, controversies over ettiquette
should be resolved in the manner least restrictive to the free flow 
of ideas and information. In other words, BRUCE MARTIN AND THOSE
WHO SHARE HIS SENTIMENTS SHOULD LEARN TO USE A KILL FILE. John should
post for those of us that enjoy him. The others should ignore him.

Now I know your background is one of substantial involvement with
FidoNet, which has a somewhat different ethic. "Annoying" behavior
on line is prohibited with procedures to determine what is to be
authoritatively considered annoying, and enforcement based on the
power to cut Echo feeds. Jerry Pournelle and Larry Niven writing
in Lucifer's Hammer, have a character make the point that societies
have the kind of government they can AFFORD, speaking in the context
of how a primitive technological base may necessitate slavery, while
more advanced energy technology, etc. will allow more freedom. I think
the difference in online ethic between FidoNet and usenet is analogous. 
On FidoNet bandwidth and mass storage are scarce and expensive resources,
paid for in general out of individual Sysops' pockets. Autocratic means
to ration those resources is necessitated, because without such limits,
FidoNet is not economically viable. On usenet, things are different. Our
Congress, in a sporadic fit of inadvertent wisdom, has seen fit to fund
the NSF backbone, and encourage subnets to make use of it for traffic. 
I have seen figures suggesting that usenet traffic, mighty though it is
in an absolute sense, is actually a fairly negligible percentage of 
traffic on the backbone. Plus, it is well known that many usenet sites 
are either directly subsidized by publicly funded institutions, or 
indirectly subsidized by the anomalous legal status granted to 
corporations under our economic system. Thus from the point of view of
the typical site, usenet bandwidth appears as a free and infinite 
resource (although in reality, this is only approximately true :).
This has affected the online ethic by tipping it drastically in favor
of unregulated posting. Usenet has been described as the world's only
functioning anarchy. I argue that good things happen both personally
and socially when people of diverse views can present them in the manner
of their choosing, before a vast audience, each of whom may choose to
attend to them or not, and to agree or disagree, in silence, or on stage.
This may actually approach in reality what the Founding Fathers knew only
as an ideal to be aspired to - the free exchange of views and information
on public policy issues among an active and informed citizenry. This is 
the ideal which has informed John's use of the Net and has informed my
commitment to support him.

Thus I argue that Bruce Martin was wrong to try to make John change his
behavior, when he had less restrictive remedies available, that AT&T is
wrong in maintaining an unreasonably vague policy on net.access, and that
John's sysadmin did a substantively bad thing by silencing him. In Nat
Hentoff's new book on Left Wing and Right Wing intolerance (sorry, I 
forget the title). He discusses the legal doctrine of the "heckler's
veto". This is the idea that speech may be restricted if it tends to
provoke disorder. Thus, the threat of an extremist group to violently
disrupt speech they opposed can be grounds for the authorities to ban 
the speech. Now free exchange of ideas is not just the law, it's a good
idea. And it's still a good idea even in areas where the law may not 
mandate it. Thus, although Bruce Martin may have broken no law in 
harassing John and complaining to his sysadmin, it was still bad, just
as shouting down a controversial speaker may be legal but is still bad. 
And John's sysadmin, by responding positively to Bruce, has established 
a precedent for this particular version of "heckler's veto" as a new
standard for on-line decision making, and I would argue, a bad and 
pernicious one.


Best wishes,
-Steve
Newsgroups: alt.censorship,alt.sex,soc.culture.japan