Internet Speech Rights in New York Are Taking a Beating

Happy Fourth of July everyone! To celebrate Independence Day, I have a nice set of stories about liberty and justice to remind us all just how important it is keep a vigilant eye on the government.

This week a protester affiliated with the Occupy Wall Street (OWS) movement accused of  disorderly conduct lost his battle to keep his tweets out of court. The Manhattan criminal court judge, Judge Matthew Sciarrino Jr., ordered that Malcom Harris’s posts under the handle @destructuremal must be turned over. Arguments of free speech fell on deaf ears. Said the judge, “The Constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you.” That’s a no-brainer, really, but the bigger threat to free speech is not the part of this story that grabs headlines; for that, you have to dig a little deeper.

In a way, I do not see this particular ruling as a big deal. Arguably, his defense, that he owned his tweets and thus was the only person who could authorize their reproduction, was pretty lame. Retaining copyright in one’s posts does not mean that you can keep them out of court. The whole point of tweets is that they are public. A direct message is another matter, but those kinds of messages are not in question here. Harris’s posts went out to the entire Twitter-sphere as he was marching in downtown Manhattan. The Wall Street Journal reports that “Harris was charged with disorderly conduct Oct. 1, 2011 after he was accused of marching on the roadway of the Brooklyn Bridge during a mass demonstration related to the Occupy Wall Street protests.”

While the question over the simple admissibility of a tweet is unlikely to go much further, the more disturbing part of this case is why the prosecutors want the tweets in the first place. They contend that protesters used Twitter to organize events and notify others about police locations and activity. This, they argue, indicates that the protesters had intent to commit crimes. I find this argument to be quite alarming. Since when is it a crime to tell others where a police officer is located? If that were the case, you could argue that message boards discussing police speed traps are inciting others to speed! If that is indeed the reason for demanding Harris’s tweets, he needs to get in touch with the ACLU and take this matter all the way to the Supreme Court.

As if that weren’t enough, last month I saw reports that a New York state legislator proposed a bill called the Internet Protection Act that would require people to disclose their real identity when posting comments to message boards if they lived in the empire state. While at first it was thought the ban attached to all comments, the bill’s author, stated that the requirement only pertained to posts concerning factual matters. I’m not sure whether this is better or not. I understand the desire to fight the increasingly vitriolic nature of online comments. Civil discourse, it is argued, dies when people do not have to stand behind their statements. It is far easier to inject rude, hateful or offensive commentary, with comparisons to all manner of terrible acts when you can hide behind anonymity.

The bill’s author, Assemblyman Dean Murray, told reporters that he drafted the legislation after an anonymous source started spreading false rumors that Murray physically abused his wife. As any victim of cyber-bullying knows, it is one thing to take abuse from a bully in the school yard and an entirely different feeling to not know who is attacking you or why they are doing it. You cannot confront an anonymous source; you cannot drag it into court for libel or slander (well, you can, but it’s difficult). So, rather than force victims to jump through hoops to learn the identity of their cyber-bully, the law would force internet content providers (website, blog and message board administrators) to “remove any comments posted on his or her website by an anonymous poster unless such anonymous poster agrees to attach his or her name to the post.” It is easy to see that without clarification, this would appear to ban all anonymous speech, and even with the caveat that it only pertains to factual assertions, it probably goes too far.

It is a very difficult problem to address because, unlike diamonds, the internet truly is forever. A post cannot really be retracted and no one will find an apology or correction attached to a false statement unless they know to dig for it. This bill may not be the answer, but it is not the zealous overreach that initial responders thought it was, either. It is slowly working its way through the New York state assembly, and, while I could opine on this issue all night, I think I’m going to put the laptop down and go out and watch some fireworks, instead. We can take up the issue again if it actually gets past the governor’s desk.


About Justin Kwong

An attorney in the Twin Cities and adjunct professor at William Mitchell College of Law where I teach a seminar on the law of virtual worlds.
This entry was posted in Legal Developments, Litigation, Rights and Civil Liberties, Social Networks. Bookmark the permalink.

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