“From my own experience, I am able to warn others of the dangers of retweeting,” said Alan Davies, after paying up to settle a lawsuit after the lord accused Davies of defamation. The lord is also targeting about 20 more of the 10,000 or so people who tweeted or retweeted the false accusation.

So is Davies’ punishment fair? In some ways, yes: after all, how would you feel if hundreds of people tweeted you were a child molester? But on the other hand, the penalty is harsh. It only takes one click to retweet something, and Twitter is a spontaneous form of media — meaning that most regular Twitter users have probably retweeted misinformation at one point or another.

Davis may have shown bad judgment in retweeting something so serious (especially as the retweet came in response to a question he put to Twitter) but a full blown libel case seems excessive — and may have chilling effects on Twitter’s role as a news source.

The outcome would likely have been different in the United States, where free speech rights are much broader. Unfortunately, unlike in the U.K., American judges have yet to declare when a tweet is defamatory — and some lawyers have argued that everything on Twitter is just a form of opinion, which is not subject to defamation charges.

While singer Courtney Love has been sued repeatedly for using Twitter to call people thieves and prostitutes (leading her daughter to declare “Twitter should ban my mother“), the cases did not make it to trial. And, as yet, no one in America has tried to sue over a retweet.

The legal issues over repeating lies on Twitter are not just academic, and need to get cleared up sooner than later. The outcome will not only shape Twitter’s future as a broadcast platform, but will also help affect Tumblr, BuzzFeed and other sites where users can share a story — or a slander — with one click.

The motivation behind the law is certainly understandable, and even laudable. At a time when the government is putting legal pressure on journalists in all kinds of ways — and especially investigative journalism involving leaks of classified information such as the kind Edward Snowden and Chelsea Manning have engaged in — the idea of protecting journalism from government intervention is worthwhile. But the Senate bill goes about it in completely the wrong way, and winds up doing far more damage than it does good.

The government shouldn’t be choosing who qualifies

The biggest flaw in the process is obvious as soon as you read descriptions of how the senators tried to define a journalist. Although some have congratulated the group for broadening the definition from earlier versions — which more or less applied the label only to those working for traditional media outlets — one of the senators’ main goals appears to have been coming up with a definition that includes bloggers and various kinds of freelancers, but still somehow excludes WikiLeaks and Julian Assange.

The problem with doing that is that it’s almost impossible to achieve without stating in the bill itself that “everyone is a journalist, except for those who are associated with WikiLeaks, or anything like WikiLeaks.” As I and others have tried to point out a number of times, while not everyone working for the organization could be thought of as a journalist, WikiLeaks is clearly a media entity — a key part of what Harvard law professor Yochai Benkler has called the “networked fourth estate.”

Thanks to the web, being a journalist is no longer something that happens because you are employed by a specific company or have a degree from a specific institution: instead, it is something you do — and the uncomfortable reality (for some professional journalists at least) is that anyone can do it, given the proper motivation and circumstances. That’s how we get what Andy Carvin of NPR and others have called “random acts of journalism,” many of which can be as effective as the professional kind, if not more so.

None of my favourite journalists are protected by the Shield Law that just passed.—
Asher Wolf (@Asher_Wolf) September 12, 2013

Do we want to exclude anyone who might need protection just because they don’t meet the current definition of a person who “has had an employment relationship for one year within the past 20 years, or three months within the past five years [or] someone with a substantial track record of freelancing in the past five years?” I don’t think we do. We would be better off trying to define what constitutes an act of journalism that requires protecting (although that would be almost as difficult).

Journalism should be protected, not journalists

Or better still, we could just try to defend the First Amendment, which is specifically worded so that it doesn’t just apply to professional journalists, but to anyone involved in a “free press.” At the time the Constitution was written, that included everyone from Ben Franklin to the guy down the street printing pamphlets on his home-built printing press — the 18th-century equivalent of a blog. Instead of broadening the definition, the Senate is in fact severely narrowing it.

Some judges have already recognized the impact that the web and social media are having on the media, and the necessity of allowing the definition of “journalist” to be as broad as possible — the First Circuit court, in a 2011 decision involving a man who videotaped the police making an arrest, said:

“Changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw [and] news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”

As the Electronic Frontier Foundation and other organizations like Free Press have argued, the kind of bill the Senate has proposed could actually do far more harm than good, by removing protection from those who might need it most. While the idea of a “shield law” seems like a good one, it could wind up being the exact opposite — a way for the government to legally regulate the press by including those it agrees with and excluding those it doesn’t agree with. Would society be worse off as a result? The answer is almost certainly yes.

Post and thumbnail images courtesy of Flickr users Petteri Sulonen and Carolina Georgatou

Xeni Jardin, who writes for Boing Boing and is also a board member of the Freedom of the Press foundation (which has helped raise money for a number of public-interest journalism entities, including WikiLeaks) posted some details of Benkler’s testimony on Twitter, and it’s clear even from these snippets that both the judge and the prosecution were trying to figure out whether WikiLeaks was a journalistic vehicle much like a newspaper — and therefore deserving of some protection — or a lawless entity engaged in, or at least friendly to, terrorism. (A full transcript of Benkler’s testimony is here).

Advocacy and journalism

At one point, the prosecuting attorney — Capt. Joe Morrow — asked Benkler whether he would agree that “mass document leaking is inconsistent with journalism,” to which the Harvard professor said: “No, why would I agree with that?” Later, the prosecution tried to argue that WikiLeaks is not a journalistic entity because it has a political agenda: Morrow asked Benkler how one could tell the difference between a journalistic organization and one whose goals were political, and Benkler responded that the two are not mutually exclusive, noting that media outlets like Fox News have a “political perspective.”

Benkler: They're not always mutually exclusive. The Nation, Fox News, some have a political perspective & context for what news they follow.—
Xeni Jardin (@xeni) July 10, 2013

A similar criticism has been made about Guardian writer Glenn Greenwald and his reporting about the NSA surveillance program known as PRISM, which is based on documents leaked by former CIA contractor Edward Snowden. Some — including a number of traditional journalists — have suggested the Guardian writer is not a “real” journalist because he is a blogger who advocates a political viewpoint rather than remaining objective.

As I pointed out in a post about Greenwald, the debate over whether he is a journalist is important because there’s a perception that journalists and traditional media entities have special protections under the law, and so those who are critical of the Guardian writer — and those who want to convict Bradley Manning of “aiding the enemy” for giving classified documents to WikiLeaks — are trying to define journalism in as rigid a way as possible so their targets aren’t protected.

Benkler: “All the news that's fit to print” —which implies political neutrality—is one model of journalism but it's not the only one.—
Xeni Jardin (@xeni) July 10, 2013

The problem of defining who is a journalist

What this ignores, however, is something Benkler suggested in his testimony: namely, that there is no hard and fast dividing line between something that is a media or journalistic entity and something that isn’t. At one point, the judge asked whether “the fourth estate now includes bloggers,” and wondered whether anyone in the gallery at the trial — if they published information on a blog — would qualify as a journalist. Benkler’s answer: “That’s a hard line to draw. This is what’s problematic about defining the limits of reporters privilege. It depends.”

The Harvard professor then argued that the charge of “aiding the enemy” laid against Manning for simply providing documents to WikiLeaks doesn’t make much sense (the defence has asked the court to have this charge dropped due to lack of evidence). If a classified document is published on a website where theoretically an “enemy” can read it, does that mean publishing it somehow aids the enemy? If so, that would theoretically implicate the entire internet, not to mention every traditional media outlet.

“If any leak to media org is published online, where conceivably an enemy can access, it's aiding the enemy? That can't be correct.”—Benkler—
Xeni Jardin (@xeni) July 10, 2013

Although Benkler didn’t get into it in his testimony, the protections that journalists and media outlets are supposed to have under the law are also problematic at best — and always have been, although WikiLeaks and the Manning trial have focused more attention on the topic. The fact is that there is no explicit protection for journalists under U.S. federal law, which is why some legislators continue to argue for a so-called “shield law.” But that in turn would require defining who is a journalist and who isn’t, which raises a host of troublesome issues.

WikiLeaks and the “networked fourth estate”

The only real protection for the media is the First Amendment, which says nothing at all about traditional media or journalism or what they consist of, but simply protects a “free press.” This makes it even harder to argue that “real” journalists somehow have legal protection but bloggers or alternative media entities like WikiLeaks don’t. At least one judge has examined the logical extension of that as it applies to the web and to bloggers, saying in a 2011 decision that:

“Changes in technology and society have made the lines between private citizen and journalist exceedingly difficult to draw [and] news stories are now just as likely to be broken by a blogger at her computer as a reporter at a major newspaper. Such developments make clear why the news-gathering protections of the First Amendment cannot turn on professional credentials or status.”

Benkler looked at these issues as they apply to WikiLeaks in a fascinating paper he wrote for the Harvard Civil Rights Review in 2011, entitled “A Free and Irresponsible Press,” in which he argued that the First Amendment and its protections should apply to WikiLeaks just as clearly as they apply to the New York Times, saying: “As a matter of First Amendment doctrine, Wikileaks is entitled to the protection available to a wide range of members of the fourth estate, from fringe pamphleteers to major press organizations.”

What the Manning court thinks of Benkler’s arguments about how WikiLeaks fits into what he calls the “networked fourth estate” — and whether they will affect the judge’s decision on the “aiding the enemy” charge in particular — remains to be seen. The trial continues next week with prosecution arguments.

Post and thumbnail images courtesy of Flickr user Caroline Georgatu

Such letters, which the government uses to obtain phone and internet data about foreign nationals, are currently subject to an automatic gag order that forbids companies from disclosing their very existence.

On Tuesday, Google said it is filing a petition to the secret court, known as the Foreign Intelligence Surveillance Court. The petition, embedded below, notes that the search giant has already received information from the FBI to publish the number of so-called National Security Letters it receives — these are similar to FISA letters but cover US citizens.

The Google petition comes as a brouhaha continues to rage over the revelation of secret government programs, such as PRISM, that collect meta-data on phone and internet users.

The controversy has not only let to questions about the expansion of government surveillance under the Patriot Act, but has also led the various tech companies ensnared in the dragnet to claim vociferously that they are standing up for their users. The nature of this advocacy has led to tension between some of the companies — Google and Twitter, for example, have suggested that alleged victories claimed by Microsoft and Facebook against the government are misleading.

In its filing, Google also repeated its criticism of the Guardian and Washington Post for misleading reporting — and says that the disclosure of the FISA requests are necessary to help it refute false accusation leveled by the media.

“Google reputation and business has been harmed by the false or misleading requests in the media, and Google’s users are concerned by the allegations,” the company wrote, several times singling out the Guardian and the Post.

If Google’s petition is successful, the company’s semi-annual Transparency Report will include two new categories that reveal: the number of FISA requests received; the number of accounts each request covers.

Here’s the filing:

Google 1st Amendment FISA

What makes this kind of topic so difficult to discuss is that much of the content Facebook was accused of harboring is unpleasant in the extreme: some of the pages that were mentioned in the complaint by the group Women, Action and the Media advocated violence against women, promoted rape, and made jokes about abuse (one of the tamer examples was a page called “Kicking Your Girlfriend in the Fanny Because She Won’t Make You a Sandwich”). No one in their right mind would argue that this kind of content isn’t offensive.

Facebook decides what speech is free

The larger problem in making Facebook take this kind of content down, however, is that it forces the network to take an even more active role in determining which of the comments or photos or videos posted by its billion or so users deserve to be seen and which don’t. In other words, it gives Facebook even more of a licence to practice what amounts to censorship — something the company routinely (and legitimately) gets criticized for doing.

To take just a few examples, Facebook has been repeatedly accused of removing content that promotes breast-feeding, presumably because it is seen as offensive by some — or perhaps because it trips the automatic filters that try to detect offensive content and send it to the team of regulators who actually police that sort of thing. The social network has also come under fire for removing pages related to the Middle East, as well as pages and content published by advocacy groups and dissidents in other parts of the world.

As Jillian York, the director for international freedom of expression at the Electronic Frontier Foundation, has pointed out, the entire concept of “hate speech” is a tricky one. In France, posting comments that are seen as homophobic or anti-Semitic is a crime, and Twitter is currently fighting a court order aimed at having the social network identify some of those who posted such comments. The company is resisting at least in part because it has staked its reputation on being the “free-speech wing of the free-speech party.”

It’s an increasingly slippery slope

Some groups have tried to convince Facebook that pages promoting heterosexuality qualify as hate speech, while others have complained that pages making fun of people who are overweight should fall into the same category. Many people would undoubtedly see the kind of content that Women, Action and the Media are complaining about as being clearly offensive in a way that these other pages aren’t — but not everyone would agree.

Where does Facebook draw the line on this particular slippery slope? Is it only the content that draws the most vocal criticism that gets removed, or the campaigns that influence advertisers?

As more than one free-speech advocate has noted, if popular protests about offensive content were what determined the content we were able to see or share a few decades ago, anything promoting homosexuality or half a dozen other topics would have vanished from our sight. There is at least a case to be made that the simplest course of action for a network like Facebook would be to only remove content when it is required to do so by law. But then what happens to the kind of content it just apologized for?

Private entities making their own rules

To its credit, the social network has tried to find other ways of discouraging these kinds of pages — including requesting page administrators to identify themselves (although the company’s “real name” policy raises some equally troubling questions). And while Facebook’s behavior looks and feels like censorship, it isn’t legally an infringement of free speech because Facebook is a corporate entity, and free-speech rules only apply to governments.

And that fact about Facebook — that it is a proprietary platform controlled by private interests — is part of what makes this situation so complex. For large numbers of people, the social network is a central method for connecting with and sharing information with their friends, a combination of water cooler and public square. But like Twitter, it is not a public square at all: it is more like a shopping mall, with private security that determines what behavior is tolerated what isn’t.

That’s not a problem when you want security to remove the people who are offending or disturbing you, or when you agree with the company’s decisions — but it’s quite different when you are the one who is being accused of being offensive or disturbing. And Facebook has provided plenty of evidence that it can make just as many wrong choices as it can right ones.

Post and thumbnail photos courtesy of Flickr user Hoggarazi

In case you missed it, the first incident involved a BBC television show that claimed an unnamed former UK politician abused boys. Soon after, people on Twitter used “jigsaw identification” to conclude that the person is question was Lord McAlpine, and some of their conclusions were retweeted 100,000 times. The BBC soon acknowledged the report was false and apologized to Lord McAlpine who said the public hatred he endured was “terrifying.”

Meanwhile, in New York, a man accused Sesame Street puppeteer Kevin Clash of carrying on an affair with him when he was a minor. Even though the allegation were unproved, Twitter immediately lit up with tasteless jokes linking to the Clash story like:

“Voice of Elmo accused of affair with minor nyp.st/TVGXVd” haha no elmo you’re not supposed to tickle me! elmo stop! ahhhh elmoooo!

— Ryan MacNamara (@massnamara) November 12, 2012

Several days later, the accuser recanted his story and said he was of age and that the affair was consensual. On Sunday, the story became more confused with reports of a payoff and a criminal history on the part of the accuser.

Trial by Twitter and libel law

The facts aren’t identical but both situations involve public figures subjected to “trial by Twitter” over terrible allegations. The legal fall-out, however, has been very different.

In Britain, Lord McAlpine has already obtained a libel settlement from the BBC for falsely suggested he was a paedophile on national TV. The legal action didn’t stop there, however. Lord McAlpine’s lawyers have also vowed they will go after “a very long list” of people who repeated the claims on Twitter.

Meanwhile, neither Clash nor Sesame Street have threatened to sue the media or anyone who shared the story on Twitter. This response reflects not only different facts but also very different libel laws in the US and Britain.

“[I]n America it’s hard for famous people (and especially government officials or former high government officials) to sue people for defamation.  The plaintiff has to prove that the defendant knew the allegation was false, or at least knew it was quite likely false,” explained Professor Eugene Volokh, a noted First Amendment scholar at UCLA, in an email. ” Moreover, if the defendant is just stating an opinion (“Based on what I read in this article, so-and-so must be guilty”), that too is constitutionally protected against a libel lawsuit.”

Volokh added the rules are different for non-public figures. In the UK, however, the overall libel law is much stricter and puts the burden of proof on the speaker to show a statement is true. This means the rich and powerful in Britain have long used libel law to intimidate or silence critics.

“The English law has been completely fixated on reputation and undervalued the public interest in free speech, and has been unwilling to protect the media against good-faith mistakes,” according to an email from Professor Stephen Scott, a constitutional law expert at McGill University. “This has not only been in the context of defamation, but in book/magazine, theatre and cinema/video censorship.”

Can you sue 100,000 Twitter users?

If Lord McAlpine’s lawyers follow up their threat, it will be interesting to see how far they get. Under UK law, they can go after not just people who tweeted conclusions about the BBC show but also everyone who retweeted those conclusions. In theory, half the country could be in court by the time this is done.

Those in America are safe from the Lord’s lawyers, however. That’s because Congress in 2010 unanimously passed a law called the SPEECH Act to put a stop to so-called libel tourism — where powerful people around the world would get a libel judgement in London and then show up in America to collect.

Unfortunately, the American shield is of little help to UK Twitter users. Those users not only face legal exposure over Lord McAlpine, but will have to decide whether to self-censor the next time the BBC reports news they can’t confirm. While false accusations about paedophilia are a terrible thing, such  legal campaigns that stymie free expression may prove an even greater evil.

As services like Twitter cause news to spread faster and more broadly than ever, courts in the UK and elsewhere will have to find new ways to balance reputations and free speech.

[Update: A reader objected to the original headline which said “BBC and Elmo sex scandals.” My intent was to provide context not sensationalism but I take the point and have updated:

Hey GigaOm, you think maybe we could NOT use the phrase “Elmo sex scandal” in headlines? gigaom.com/2012/11/18/twi…

— Jillian C. York (@jilliancyork) November 19, 2012

The tweets belong to Malcolm Harris, who was among hundreds arrested last year during a protest that spilled onto the Brooklyn Bridge.

The case became a media sensation after Twitter notified Harris about prosecutors’ demands for his account. Harris then challenged the demand but, in a remarkable decision, Judge Matthew Sciarrino Jr., ruled that he had no standing because the tweets did not belong to him.

After Twitter stepped in on Harris’s behalf, Sciarrino issued another unusual decision that suggested people have little or no constitutional rights in what they publish on social media.

Twitter is appealing the rulings but Sciarrino effectively shut down the appeal this month by ordering the company to turn over Harris’ account or face a contempt of court order and a large fine.

Sciarrino’s brash series of orders are all the more striking because the judge himself has been disciplined for misusing social media, including allegedly attempting to “friend” lawyers on Facebook and updating his status from the bench.

• See also: The Facebook-addicted judge and the little blue bird

According to Reuters, which first reported the story, Twitter handed over the tweets this morning and they will remain under seal under at least next week when Harris will argue another appeal. His criminal trial is set to go forward in December.

The case is significant because it is helping to define privacy and free speech in the age of social media. While tweets are by their nature public statements, Harris had deleted them. The issue of whether or not they are still public documents is an open question but the more pressing legal issue is over who owns them in the first place.

Twitter is adamant that users own their tweets, which makes Sciarrino’s ruling that Harris has no standing a potentially egregious error. If his finding is overruled, it will confirm that users can stand up for their own speech and privacy rights.

The case involves a 12-year-old girl who used Facebook to diss the hall monitor, writing “[I hate] a Kathy person at school because [Kathy] was mean to me.” She also used the social network to talk about “naughty things” with a boy. When one of her “friends” ratted on her, the girl wrote on her Facebook wall, “I want to know who the f%$# told on me.”

Three school officials, including a counselor and a taser-wearing cop, came down hard. They interrogated her in an office and badgered the sobbing girl until she handed over her passwords. They proceeded to go through her Facebook and email accounts to find the “naughty” discussion she had with the boy.

Now, the school is in hot water. U.S. District Judge Michael Davis ruled that the school appears to have violated the girl’s free speech and privacy rights. He wrote:

For more than forty years, the United States courts have recognized that students do not check their First Amendment rights at the schoolhouse door  …  The movement of student speech to the internet poses some new challenges, but that transition has not abrogated the clearly established general principles which have governed schools for decade

Davis noted that there is a clear exception to the rule that schools can’t infringe on students’ free speech rights —  when there is a clear threat of violence with a connection to the school. This obviously wasn’t the case in Minnesota since the girl’s Facebook activity took place outside of school.

The decision, first reported by Seattle lawyer Venkat Balasubramani, comes at a time of a growing backlash against school and workplace attempts to pry into people’s social media lives.

Davis’ ruling also provides an interesting tour of other cases in which students push the social media envelope, sometimes in very unpleasant ways. In one example, a court upheld the speech rights of a student who made a MySpace parody of his principal:

the student featured a picture of the principal (taken from a school website) and stated that the principal was “too drunk to remember” his birthday and was also a “big steroid freak,” a “big whore,” and a “big fag.”

Students’ social media activity may be upsetting or disrespectful but it’s nothing new — Bart Simpson, the Beastie Boys and others have trash-talked teachers since the dawn of school. The platform is different but the behavior is not.

Judge Davis’ decision , which came in response to the school’s request to dismiss, is here:

Minnesota Student First Amendment
(Image by 3445128471 via Shutterstock)

The Virginia man at center of the case, Daniel Ray Carter, clicked to “Like” the “Jim Adams for Hampton Sheriff” page in 2009. The incumbent sheriff learned of his subordinate’s “Like” for his opponent and fired Carter shortly after he won re-election.

Ordinarily, it is against the law to terminate employees for their political opinions. When Carter sued, however, a Virginia judge ruled in April that, unlike writing a message on Facebook, the act of clicking a “Like” did not amount to speech worthy of First Amendment protection.

Carter appealed the decision and this week Facebook filed to support him. In its brief, the social network says a “Like” is protected symbolic speech like a bumper sticker or a campaign lawn sign — both low-cost ways for citizens to express their political opinions.

The appeal will turn on the original judge’s conclusion that the “Like” was insignificant speech that did not involve “actual statements.” Facebook is countering this by pointing out that the “Like” appeared on Carter’s profile page and in the news feed of Carter’s friends. The evidence also showed that others in the sheriff’s office saw the “Like” and predicted that Carter would be “out of there” because of it.

Carter is likely to prevail. US courts have long protected a wide range of symbolic speech such as arm bands and flag burning. Recently, a federal judge expressed support for a vice-principal who was fired for having a symbolic hot dog cook-out in support of poorer students at the school.

Prominent First Amendment scholars like UCLA’s Eugene Volokh have also supported Carter’s position, saying a “Like” clearly is speech.

The Facebook Like case is just the latest in a series of decisions in which courts have struggled to apply Constitutional rights like free speech and privacy in the context of social media. In another high-profile case, Twitter is appealing a New York judges’ ruling that an Occupy Wall Street protestor has no constitutional rights in his tweets.

Update: The American Civil Liberties Union has also filed a brief to support Carter.

“The Supreme Court has made clear that the First Amendment protects everyone’s right to express their thoughts and opinions in whatever form they choose to do so, whether it’s speaking on a street corner, holding up a sign, or pressing a button on Facebook to say that you ‘Like’ something,” said ACLU attorney Aden Fine.

Here is Facebook’s brief in support of Likes as free speech:

Facebook 1st Amendment

(Image by Vince Clements via Shutterstock)