CMS 790 MEDIA THEORIES AND METHODS I Pr. William Uricchio

Florence Gallez December 13, 2008 [updated summer 2009]

A reception study of ’s book Cyber Rights – Defending Free Speech in the Digital Age and its role in the discursive positioning of a new technology for collaborative journalism in a free, open online space.

Be glad that U r free Free 2 change your mind Free 2 go most anywhere, anytime Be glad that U r free There's many a man who's not Be glad 4 what U had baby, what you've got Be glad 4 what you've got Soldiers are a marching, they're writing brand new laws Will we all fight together 4 the most important cause? Will we all fight 4 the right 2 be free? Free (Be glad that U r free) Prince, 1999 album (1982)

Reason for selection of text:

It may well be that the Prince fan in me was subconsciously influenced by the musician’s joyful hymn to freedom and call for less regulation when I selected Cyber Rights – Defending Free Speech in the Digital Age by Mike Godwin as the central text on which to base my case for more free speech in online news production – one of the guiding principles of my thesis and related research project, Open Park. But then, a call for more freedom on the Net and less regulation in is precisely one of Godwin’s core arguments in his second book, first published in 1998 and revised in an expanded edition by MIT in 2003.

But there are other reasons for which I selected this book about the First Amendment and how it is applied to the : mainly, it presents a system of ethical and democratic values which I fully espouse and on whose foundation I plan to develop a new journalistic practice for collaborative online news production. The concrete application for this new practice of openly sharing knowledge and resources among journalists covering the same beat or issue is “Open Park” – a Web-based platform for journalists to work together on news stories. The website is now in its second phase of development, with myself and our design team working on developing the new media news-reporting tools that OP journalists will be using.

Thus, Godwin's text informs both dimensions of my project for CMS – the building of a free, unfiltered/uncensored space online for Open Park for journalists and other users, and the formation of a normative system of values and principles that protect and foster free speech on the Internet/Net and other digital rights. This normative system will take the shape of a proposed Code of Ethics for collaborative journalism - that is, for all the new forms of digital, hybrid and group-based online news production, such as Twitter reports feeds and news updates on social networks, which so far lack code-based regulations for their practical and ethical use. This new Code of Ethics for today's online journalism is the proposed subject of my CMS thesis.

Here it is important to note that in this particular paper I will be focusing on the second part of my project - the theoretical basis for a value-based journalistic practice and its establishment in a new [or one could say 'updated'] Code of Ethics. How Godwin’s methodology for the study of online, as elaborated in his book, was received and how this criticism can further inform my own research on free, open online spaces for collaborative journalism is a crucial exercise in building the ethical foundation of this new practice to be formalized into a new Code.

There is actually a section on the OP website devoted to the elaboration of this Code of Ethics, where both my own research and that of similarly interested contributors is published. Here too, the section has the principles of free expression at its heart, with a forum where users and readers can post their own thoughts on an ideal Code of Ethics for today's new journalistic models.

So I am using Godwin's book as the basis for my main argument for increased protection of free speech online and of the moral values and professional principles needed for high-quality collaborative journalism. More specifically, as OP reporters and journalism students will be covering the case studies in small and large groups, both local and remote, I expect to be applying Godwin's views on free speech and other constitutional rights in the digital age to the ethical dilemmas that they might encounter in their work, such as dealing with difficult sources.

I have also been looking closely at existing cyber laws and how Godwin's interpretation of them can be applied to my own decision of exerting minimal editorial control of what is being published by contributors on the OP website, be it the news report of a group of journalism students or comments by readers to a published story. Thus, all the sections of the site are open to users' comments, from the OP team's personal blogs to the discussion forums. Moderation in the forums is being kept at a minimum, and minimal monitoring of who can post comments or contribute in other ways is also applied, thus paving the way for the OP platform to become a news-reporting and discussion tool for non-skilled users such as the concerned residents of a community and citizen journalists. And, as Godwin argues in Cyber Rights, in Open Park too, unpopular or minority views are welcome as they often spark the most interesting debates. Another right supported by Godwin is also guaranteed in Open Park - that of online anonymity for those contributors to forum discussions who wish to voice uncommon or controversial views but keep their identities secret. Anonymity, the lawyer says, is one of the main guarantors of the free, unconstrained exchange of ideas.

Thus, for OP this text is key.

Contextual location of the selected text

The central role Godwin's Cyber Rights plays in the elaboration of my proposed practice are clear, and this is why the issues of free speech protections and rights he raises in this book and other writings are so important to my project.

But does this mean that Godwin's views, and this particular book, were well received and broadly accepted at the time of its release in 1998 and in subsequent writings? Did he convince the skeptics and more conservative elements in society who are calling for a 'safer' Net, with limits on what can be published in order to protect our children for example, but also resulting in limits on free speech? Did they disrupt the discourse on free expression rights at the time, and how did the concrete court cases he worked on informed that debate, or perhaps changed its course?

Here a useful comparison can be made with another of my favorite authors in the sphere of developing the Net's full democratic potential and defending diverse voices in online speech: Cass Sunstein, the Harvard Law School professor, now the Obama Administration's regulatory chief person. His views on the dangers of limiting free speech by too much fragmentation of online discourse into specialized niches of interest provoked strong reactions from cyber-optimists at the time of the release of his book Republic.com before 9/11. So much so that he felt compelled to address them and revisit some of his thinking and proposed reforms in a follow-up book, Republic.com 2.0. On this point, it is noteworthy that contrary to Sunstein who reconsiders his theories significantly in his second work so as to take into account criticisms and the latest technological developments, sometimes sounding a little apologetic, Godwin on the other hand makes no such shift in his stance in the second edition of Cyber Rights, opting simply to reformulate his thoughts with an update of the new technological context.

In any case, the receptions of these two lawyers' writings are worth juxtaposing for the controversy that they caused upon their publication. Interestingly, Sunstein's main arguments for 'chance, unplanned encounters in open, public space, aimed at embracing and fostering a wider range of views in a democratic debate have still, to this day, failed to garner much appeal and an enthusiastic following. It will certainly be interesting to watch whether his proposals gain acceptance with time.

It also did not evade me that despite the time difference between the release dates of Godwin's Cyber Rights and Sunstein's Republic.com, the prevalent doubts and fears among the public about what it considers too lax speech liberties have not changed much and persist throughout those years to this day. Just to be clear, I am using Cyber Rights' 1998 edition as my primary text.

In seeking to position Cyber Rights in the context of its publication for a more accurate analysis, it may be useful to remember that Godwin was writing at a time when the nascent sphere of new media was attracting a lot of interest from the legal and regulatory community, as the latter sought ways to contain within normative boundaries a sphere seen as developing uncontrollably, especially on the Internet.

Perhaps this is why the early reviewers of Cyber Rights seem to reflect these concerns and sense of uncertainty. Steven J. Dick of Southern Illinois University Carbondale writes in The International Journal on Media Management “I pick up a book called Cyber Rights and I pick up a conundrum. Lawyer and technology analyst Mike Godwin has all credentials to write an important yet nearly incomprehensible book. Plus, the title suggests another entrant into the burgeoning field of new media texts. I was worried.”

The New York Times Book Review strikes a similar tone: “The Internet is proving a strange hybrid of print and broadcast media that has lawmakers in a tizzi about just how to regulate it. Mike Godwin explores this conundrum in Cyber Rights, which itself is somewhat of a hybrid of law textbook and tactical manual on how to defend cyberspace from censorship,” New York Times book reviewer J. D. Biersdorfer wrote.

At this point I should also say that, had I encountered it earlier, Sunstein’ Republic.com 2.0 might have earned the top spot in my list of key texts on which to base the ethical foundation for my Code of Ethics – and not just because he has been named head of the White House’s Office of Information and Regulatory Affairs in the Obama Administration…

In his 2007 book, the legal scholar and professor of law at Harvard reassesses critically what happens to democracy and free speech in the increasingly fragmented and controlled public space of cyberspace. His identification and criticism of the threats to free speech online, such as the instinctual formation of like-minded and shared-interests groups which may discriminate against dissenting or unpopular views, has the same resonance as Godwin’s warnings of possible violations of free speech and civil liberties in regards to computers and the Internet.

Interestingly, the public’s responses to Godwin’s efforts to protect all voices in participatory online exchanges, seen as too permissive by some, and to Sunstein’s criticism of a ‘too personalized Net’ which promotes fragmentation into like-minded groups were remarkably similar. In both cases, the warnings of both legal experts about the threats to free speech online were met with a certain discomfort as well as strong reactions from cyber-optimists who could not see but limitless potential for growth and opportunities in the Net and none of the ‘threats’ that these ‘digital pessimists’ were warning about.

Godwin’s ultra liberal call for seemingly allowing all manners of speech in online discussion forums, including of an unpopular or offensive nature, and Sunstein’s application of behavioral economics based on his theory of libertarian paternalism to his study of online discussions participants have both somewhat caused some disruption in the debate about public conversations and interactions online and how they should be regulated. In both cases, these distinctive proposals went against the grain and their authors appeared a little as ‘dissidents’ in the general discourse on speech rights on the Net.

I hope that this comparison with Sunstein and resulting observations throw some light on the context and general public discourse about the Internet into which Godwin introduced his arguments for protecting individual freedoms of expression in cyberspace.

Other contextual considerations

In addition to my own interests and the ramifications between Godwin's arguments on free speech on the Net and my work on Open Park, it is important to note the context of increased government and corporate control of information that were prevalent at the time of Cyber Rights' second edition and beyond. There seems to have been some moral backlash at the liberties and promises of unlimited potential of the Internet that certainly shaped the general landscape in which Cyber Rights was received. This in turn led some leading establishments in education, the arts and the social-cultural sphere to restrict access to certain content for their users.

Such initial public reticence was further exacerbated by stricter controls on the free flow of information and access to what used to fall under the public's right of access. In the wake of Sept. 11, 2001, many documents that were open to journalists and media professionals were closed, significantly increasing government secrecy. At the same time, wiretapping and other surveillance measures were put in place in the name of security, making it harder to protect free and frank speech in society, both online and in the real world. Little concrete independent investigation was made of the government's warrantless terrorism-era eavesdropping on phone and computer lines. In the Feb. 28, 2008 issue of Global Research, Brent Jessop writes that the Department of Defense is building an information-centric force, and that, "The Pentagon's Information Operations Roadmap is blunt about the fact that an Internet with the potential for free speech is in direct opposition to their goal. The Internet needs to be dealt with as if it were an enemy "weapons system."

In other developments similarly restricting speech and free expression on the Net, several high-profile cases arose from the use of language in electronic media perceived as offensive, banning the offenders from online discussions forums, and at the same time, making it more difficult to preserve one's anonymity - a traditional tool for practicing freedom of speech.

It is in this context of increased controls and reduced liberties for expression that one has to examine the more recent reactions to Godwin's book. And even though he focuses on denouncing the moral panic about the Internet, these controls that are prevalent to this day make Godwin's warnings and arguments in Cyber Rights all the more relevant for our times. Thus, their usefulness has not faded.

Mike Godwin – the lawyer and digital free speech pioneer

For a better understanding of these arguments and how they were received, it is useful to take into account their author's professional path and most heartfelt causes.

The American attorney has devoted his career to Internet law, becoming the first staff counsel of the Electronic Frontier Foundation in 1990. It is the work he did as a lawyer for EFF on First Amendment cases in the 1990s, including on Reno v. American Civil Liberties Union, that he has documented in Cyber Rights. Since 2007 he is general counsel of the .

In addition to being a pioneer in defending digital rights, one of his most famous insights is "Godwin's Law", which he describes in these terms: "As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one."

Covering trade secret, libel and law among other civil liberties issues, Godwin in Cyber Rights describes relatively well-known cases in which practices on the Internet have clashed with the legal system. Much of the final part of the book, perhaps too much, as evidenced by the general sentiments of reviewers, is devoted to the great cyberporn panic of the mid-nineties, with a full recount of Time's controversial dramatic report of a 1995 cyberporn academic study.

Godwin uses this and other cases to make his most passionate arguments on the importance of full free speech rights on the Net, one of which is that speech in cyberspace must be guaranteed the same First Amendment protections as those afforded the traditional media. "The fear-mongering about the Net, aided and abetted by sensationalistic media, and the ignorant lawmaking by less-than-courageous and less-than-informed representatives and senators have only reinforced my resolve to make sure that the democratic ideals of the founders of the Republic are rediscovered and honored in the online world," he writes in Cyber Rights.

Another of Godwin's favorites responses to calls for putting limits on controversial content and unpopular or offensive views on the Net is "Words do hurt" - but it is essential to hear them too to achieve full freedom of speech. "Learning to cope with those words rationally and without fears is part of what it means to reach maturity," he writes. He is also a staunch defender of the right to speak anonymously, "an important component of Americans' speech rights under the First Amendment."

According to Noam Cohen writing in in August 2007, Godwin "does tend to take the long view." Even though he expects the moral panic over the Net to last some time, he says people's views and concerns are likely to evolve with time. "Part of my job is to prevent restrictive rules being put in place that prevent people from participating in massively democratic participatory media. And then let the new norms settle," Cohen quotes him as saying in an interview.

Cohen argues that Godwin can appear insensitive to victims of smears, but Godwin says he isn't. "Look, I have been smeared online, I know how bad it feels. It hurts. If democracy were comfortable, everybody would have it," he said. The solution to bad speech, Godwin argues, is "more speech,": anyone with an Internet connection today can respond to what is being written about oneself and correct any false statements.

Cohen's article is interesting for its playful yet critical tone and stance regarding Godwin's new functions in a Wikipedia project, in which Godwin can - and says he has - edited his own profile.

Reception

Generally, Cyber Rights has been deemed an important and valuable contribution to the debate on rights in the digital age. Initial reviews, as well as those of the second edition praised the book for being very accessible language-wise and in its use of concrete examples, despite the very specialized and sometimes rather dry subject matter.

The New York Times Book Review in 1998 found the book to be "a somewhat of a hybrid of law textbook and tactical manual on how to defend cyberspace from censorship," highlighting its two sides of an expert yet practical piece of work.

Royce Van Tassell writes in The Freeman in 1999, "For legislators and policymakers, it is an excellent primer on why they must not rashly alter the rules of speech in new media. [...] Godwin helps the average citizen understand how the Net can improve society and perhaps re-establish some of the community lost in our increasingly distant society - if it is left free."

For Van Tassell, however, Cyber Rights is not without its flaws. He questions Godwin's claim that libel law might be coming to an end, and finds that his passion for the Net sometimes colors his judgment, such as when he writes that, "The Net is reducing and perhaps erasing the imbalance of power between mass media and private individuals," which Van Tassel says is unlikely.

Reviews of the second edition were on the whole similarly appreciative. Raul Rojas, editor of Reviews of the Free University of Berlin writes, "Godwin does a good job of introducing the reader to free speech as it relates to society and the concept of a virtual community versus a real community." He also astutely notes how Godwin, "covers the rights of the individual versus the rights of society when it comes to how we express ourselves. Since September 11, 2001, US citizens have seen the loss of many freedoms in order to protect members of our society. We must be careful to balance the rights of the individuals with the protection of society."

Perhaps the most nuanced critique is that of Steven J. Dick of Southern Illinois University Carbondale who appreciates Godwin's "most valuable contribution to the policy discussion - his recurring theme of plurality in online communication - but questions what has been added since the original edition that is new. "As with any revised text, the question arises, 'What is new?' [...] The book is for the most part a mid-1990's book."

He concludes that "the mixture of storytelling and background facts makes for an entertaining presentation that guides you through difficult material before you know it," and that "Godwin presents an effective policy analysis but a less effective media analysis."

Not only Cyber Rights received generally positive reviews and was deemed to bring a significant contribution to the cyber rights debate, the book is also being referred to in articles by the press and academic papers.

John Schwartz of The New York Times uses Godwin's explanation of the different doctrines from which sprung the rights to protect and to protect intellectual property in an article entitled "New Economy; Guarding Privacy v. Enforcing Copyright" [Sept. 29, 2003]. And he is mentioned too in The University of Illinois's Law Review, most notably in an article by A. Benjamin Spencer entitled "Jurisdiction and the Internet: Returning to traditional Principles to Analyze Network-Mediated Contacts."

In conclusion it can be said that Cyber Rights has played a significant, influential role in the discourse on free speech, both in the mainstream and professional legal spheres. Both the general and expert public appreciate the fact that Godwin goes far beyond just analyzing laws and regulations, and shows us why defending the Net against censors matters and what we are about to lose if we don't.

Some have noted that his account of cases and arguments are far from balanced and often point at the deficiencies, real or perceived, of his opponents. But it is generally recognized that it is the expose from a passionate free speech advocate that we are getting, as well as the point of view of a legal expert - someone deeply involved in- and knowledgeable about all the nuances of legal cases. And at the end of the day, it is those attributes that are the most memorable with the public.

Finally, one point which today's new media law experts have not made about Cyber Rights but is evident is that despite being an 'oldish' book, being published in 1998, the issues Godwin raises are as relevant today as they were then. This makes it all the more a perfect guide for introducing free speech policies, such as minimally monitored forums and limited editing for outside writers' contributions, into the Open Park platform and practice of collaborative journalism.

Bibliography

. Cyber Rights - Defending Free Speech in the Digital Age, Mike Godwin, The MIT Press, 1998. . Republic.com 2.0, Cass R. Sunstein, Princeton, 2007 . New Economy; Guarding Privacy vs. Enforcing , John Schwartz, The New York Times, Sept. 29, 2003 . Cyber Rights - Defending Free Speech in the Digital Age, Mike Godwin, The MIT Press, 2003, Reviews, Free University of Berlin, Raul Rojas, IEEE Annals of the History of Computing . Cyber Rights: - Defending Free Speech in the Digital Age, Royce Van Tassell, The Freeman, Irvington-on-Hudson, July 1999, Vol. 49, Iss 7, pg 61, 1 pgs. .Cyber Rights, J. D. Biersdorfer, New York Times Book Review, Aug 23, 1998 . Defending Wikipedia's Impolite Side, The New York Times, Noam Cohen, Aug 20, 2007 . Cyber Rights - Defending Free Speech in the Digital Age, by Mike Godwin, reviewed by Steven J. Dick, The International Journal on Media Management, 7 (3&4), 165-166 . "Jurisdiction and the Internet: Returning to traditional Principles to Analyze Network-Mediated contacts, The University of Illinois Law Review, A. Benjamin Spencer, 2006 U. ILL. L. Rev. 71