Learn more about Peltz-Steele v. UMass Faculty Federation at Court Listener (complaint) and the Liberty Justice Center. The case is now on appeal in the First Circuit as no. 22-1466 (PACER paywall). Please direct media inquiries to Kristen Williamson.

Thursday, March 21, 2019

NZ prosecutions for sharing Christchurch vid would suppress news, free speech, but worse is empowerment of private censors

Timothy B. Lee at Ars Technica has reported on the enforcement of New Zealand's "objectionable" content law to threaten internet users with draconian criminal penalties for having shared video of the recent terrorist attack in Christchurch.

According to Lee's report, one "44-year-old owner of an insulation company with alleged neo-Nazi sympathies" is being held without bail on two counts of illicit publication, and, via 9News, an unnamed 18-year-old also has been charged. Conviction on one count of publication of objectionable content carries a prison term of up to 14 years. The video, 17 minutes in length, was taken by the perpetrator in Christchurch and live-streamed on Facebook. According to CNN, "online platforms scramble[d]" to scrub the video from the internet.

Hand-wringing over a decline in morality fueled by online media seems to be reaching a fever pitch. Just Tuesday, March 19, Jim Jefferies kicked off his show's season 3 by examining the short chain of YouTube recommendations that can lead a user from a well meaning laugh to white supremacist rhetoric.

But this problem is not new. We too quickly forget that the internet owes rapid growth in its early years to pornographic video, notwithstanding its social complications on both the production side and the consumption side.  In the violence and morbidity vein, Rotten.com was a controversial yet popular online destination from its inception in 1996.  Plenty of scholars have speculated aptly that the internet is more evidence than driver of vice as an enduring feature of the human condition.  That censorship will somehow save us from our demons might be a fundamental error of causal inference.

More than objectionable speech itself, our social problem is poor information literacy (something I talked about a couple of weeks ago at the Pi Sigma Alpha induction at SUNY Oswego; for my knowledge of the term, hat tip to my wife, Dean Peltz-Steele, a law librarian), which itself is connected to educational and economic opportunity.  A white supremacist spouting off on the internet is only dangerous insofar as people embrace the nonsense.  If people are well educated and well employed, the rhetoric of hate and blame has trouble taking root.

"Objectionable" content presents, then, nothing more than the classic Brandenburg v. Ohio (1969) free speech problem.  Clarence Brandenburg was a KKK leader speaking at a rally.  In reality, the rally was not well attended, but that was not a salient fact in the advent of the "incitement to imminent lawless action" test.  That test, as complemented by later refinement of "true threat" doctrine, appropriately circumscribes constitutionally protected free speech.  Barring exigency that justifies preventive state action—not unlike the way tort law punishes assault shy of battery without fretting over the lack of physical contact—the free speech fundamental principle is that the law may punish actions, but not mere words, or mere expression.

The NZ Films, Videos, and Publications Classification Act 1993, as amended, covers content that comprises more than mere speech, e.g., child sexual exploitation.  A category for depictions of "the infliction of serious physical harm" fairly takes in the Christchurch video in a way to which U.S. law is unfairly resistant.  What is missing, though, from the NZ law is a newsworthiness exception.  The law articulates factors in assessing content for its objectionable nature.  Factors include "any merit, value, or importance that the publication has in relation to literary, artistic, social, cultural, educational, scientific, or other matters," terms in fact derived from U.S. constitutional law.  But the objectionable-including provision is hard and clear, while the objectionable-excluding factors are soft and ambiguous.

I don't condone sharing a terrorist's self-serving video of violence and human suffering.  Jefferies aptly distinguished a legal compulsion not to share the video from what should be a person's moral capacity to distinguish right from wrong.

What is most troubling about the NZ criminal charges is not, however, the poor choices of some internet users, but the rush by the internet's corporate powers to scrub from the web something that is real and newsworthy.  Notwithstanding the direct threat of NZ state power to free speech, the online suppression of the Christchurch video points to a greater and more menacing problem in internet censorship.  What has changed since Rotten.com rampaged online is that today, the World Wide Web is less wild West and more engineered Westworld.  At some point in our future we will have to reckon with the power of corporate actors to let us see only what they decide is not "objectionable."

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