A new Twitter follower is an Indian media & tech lawyer named Nandita Saikia, who offers this blog about certain kinds of exploitative pornography and free speech. As a non-lawyer, I won’t comment on any of the case law she cites in the post, but the central theme is instructive with regard to how arguments that appear to support an absolutist approach to free speech can actually be restrictive and rather elitist when they fail to consider that the principle must balance the rights of both the recipients and the disseminators of speech. Referring to pornography, Saikia makes what should be an obvious point that pornographic content which exploits (i.e. is non consensual) the individual(s) depicted is a violation of civil rights that trumps the free speech rights of any recipients who view that content, even though the recipients are not directly responsible for the existence or availability of the exploitative content in the first place.
Extreme examples like revenge pornography or pornography produced with victims of human trafficking are useful boulders to turn over, if we want to look closely at the entomological realities of some of the arguments made about what should constitute protected speech on the web. The purposeful or inadvertent viewer of exploitative porn (except that involving minors) is certainly indemnified from the crime of the exploitation itself, but this does not mean that once this content is out there in the sacrosanct realm of cyberspace, it automatically becomes protected speech simply because millions of people who are not guilty of the initial civil rights abuse can find it or stumble upon it. This may appear self-evident in these cases, but the exact opposite claim is a common feature of arguments used to assert, or at least imply, that access to content like pirated entertainment media is a form of protected speech.
Few rational, decent people will offer full-throated, First Amendment defenses for either the viewing or the dissemination of something like a video depicting a real rape or a crush video, but as we segue from these extreme and heinous examples toward the less serious matter of unlicensed access to common fare, the free speech argument made will often boil down to applying the same irrational premise — that once content is out there, the rights of the recipient are more important than the rights of the disseminator, even if the disseminator is being exploited. One may argue that piracy is a victimless crime, which it is not, but it doesn’t matter in this case because the logical construct for this unbalanced approach to free speech is equally unsound in either instance.
Now, I know the myrmidons over at TechDirt love the word conflate, and they would do their usual hammy spit-take to hear me conflate copyright infringement with exploitative pornography, but that’s because nuance is the enemy of the blunt and sardonic. Clearly, I am not comparing violent crime with mass copyright infringement, but am using the former to illustrate more starkly why the imbalance is unreasonable. In practice, we should pay attention when vested interests play shell game, shifting free speech arguments from recipients to disseminators whimsically in order to support some agenda.
In fact, European Pirate Party founder Rick Falkvinge conflated the same two subjects in one of the more extreme examples of presumptive free speech absolutism I’ve seen proposed. In a bizarrely constructed argument for the legalization of child pornography, Falkvinge writes, “The copyright industry loves child pornography [because] it opens the door to censorship.” This is an example of what I like to call quantum idiocy, when the internal fallacies of a single statement are so tightly bound as to occupy a dimension beyond the scrutiny of reason. There is no such thing as the copyright industry; nobody should accuse anyone except a confirmed pedophile of loving child pornography; and fighting mass copyright infringement isn’t censorship by any definition of that word. But these keywords do play well among those who’ve come to believe that as recipients of content (the majority), their free speech rights are more important than the disseminators of content (the minority).
What intrigues me most about this phenomenon is the inherent narcissism, which not only leads to some bizarre behaviors on the web, but actually belies all the egalitarian rhetoric so often used to defend this kind of lopsided, free-speech absolutism. When the majority of recipients are “more equal” than the minority of disseminators, it asserts the rule of the mob over the rights of the individual, which is anathema to the principle of civil rights in the first place. In the next post, I’ll dig a little deeper into this question of web-induced narcissism, including a discussion of trolls and whom we actually mean when we use the phrase “the internet community.”
