There was well-founded outrage in the free-speech community when the government pressured Amazon, Visa and Mastercard, etc., to stop doing business with WikiLeaks. The State Department argued that WikiLeaks shouldn’t have published the documents in the name of another “vulnerable population”: the foreign sources named in the State Department cables, never meant to be public. WikiLeaks put the sources at risk — or so went the argument, at least.
In the end, the dangers were exaggerated, and the government never pointed to a single person killed because of the WikiLeaks disclosures. But at the time the companies made their decisions, they felt pressure to balance one right against another. Free speech lost.
One might argue that in the WikiLeaks case there was a strong public interest in publishing the cables, even acknowledging the potential risks. Conversely, in the case of Reddit “creepshots,” the lack of public interest seems obvious: the images provide nothing to society, they’re disgusting, and they degrade women. Yet if you asked someone at the State Department about WikiLeaks in December 2010, you were bound to hear roughly the same thing: that WikiLeaks would have “blood on its hands,” that it was incredibly dangerous, that it was all things horrible.
So the question becomes: Who is the judge at these companies, and what is his or her judicial philosophy? As the law professor Geoffrey Stone once wrote, balancing seems sensible but quickly becomes unworkable. It’s “incredibly difficult to identify and assess all of the many factors that should go into this judgment on a case-by-case basis,” he wrote. “As a result, its application would produce a highly uncertain, unpredictable, and fact-dependent set of outcomes that would leave speakers, police officers, prosecutors, jurors, and judges in a state of constant uncertainty.”
The same problem would plague Internet company executives and users alike. As Justice Harlan once quipped, “One man’s vulgarity is another man’s lyric.”
Leave a Reply