Virtual Offensiveness

More than 15 years have passed since antilibertarian
feminists declared "pornography" a violation of women's civil rights, alleging
that it demeaned and objectified women. In the 1980s, the antiporn movement
enjoyed a lot of publicity and a little local legislative success. But federal
courts quickly struck down antiporn ordinances that classified some sexually
explicit speech as discriminatory and offered women private rights of action
against the producers or distributors of non-obscene pornographic material. In
American Booksellers Association v. Hudnut, the U.S. Court of Appeals for the
Seventh Circuit stressed that government officials cannot prohibit speech because
they disapprove of its perspective: In America people have a right to suggest
that the sexual subordination of women is preferable to sexual equality.

This was an important but limited victory for civil liberty. The model
antiporn law once promoted by feminists did not survive legal challenges, but its
underlying view of pornography as a civil-rights violation has reframed debates
about free speech. During the 1990s, the equation of offensive or hateful speech
with actual discrimination successfully infiltrated both the courts and the
culture. Popular therapies confirmed that abuse could be verbal as well as
physical because people were fragile and apt to be deeply wounded by
words--especially if they were members of historically oppressed groups,
according to the politically correct left. Employment-discrimination claims
involving allegations of verbal harassment proliferated; in one notorious
discrimination case, Aguilar v. Avis, the California Supreme Court upheld a
prior restraint against the use of "derogatory racial or ethnic epithets" by an
employee of Avis, the automobile-rental company.

So it's not surprising that a former subscriber to America Online has filed a
federal lawsuit complaining that AOL violated his civil rights by not censoring
hate speech in a chat room. Long before the September 11 attacks, Saad Noah, a
Muslim, charged AOL with ignoring the harassment of Muslims in chat rooms devoted
to discussions of Islam and the Koran. He has offered numerous examples of
moronic epithets and obscenities directed against Muslims, all of which he claims
to have reported to AOL. Noah has a contract claim (in its terms-of-service
contract, AOL imposes severe restrictions on "offensive" speech). He has also
filed a complaint under the 1964 Civil Rights Act maintaining that AOL is a public
accommodation from which he and other Muslims have been effectively excluded
because of AOL's failure to punish anti-Muslim speech.

Noah's civil-rights complaint will resonate with liberals concerned about
"inclusiveness," but it's likely to be greeted skeptically in federal court.
Under the Civil Rights Act, the term "public accommodation" has generally been
construed to apply to physical facilities or structures. In a 1993 case, a
federal appeals court declined to classify the Boy Scouts of America as a public
accommodation; and in 1995, the U.S. Supreme Court ruled that the Saint Patrick's
Day Parade in Boston was not a public accommodation (and could not be prohibited
from excluding gays).

Of course, the Civil Rights Act was written before anyone in
Congress could even imagine cyberspace. Today, many people can't imagine life
without it. Distinctions between virtual and real worlds are diminishing, and
it's easy to understand how an AOL chat room might be deemed the equivalent of an
actual place. Indeed, this is not the first lawsuit that has tried to hold AOL
accountable as a public accommodation under federal law. In 1999 the National
Federation for the Blind sued AOL under the Americans with Disabilities Act for
failing to provide adequate access to blind people through special software. (The
suit was settled.) But if the concept of a virtual public accommodation makes
sense to denizens of cyberspace or enterprising lawyers, courts may decline to
expand federal laws quite so drastically, leaving the task of creating new civil
rights in cyberspace to Congress.

In any case, advocates of Noah's civil-rights claim should note that
the view of AOL as the proprietor of a public space could be used to expand--not
restrict--the speech rights of its inhabitants. From the perspective of many AOL
users, a chat room may seem more like a public forum than a place of
accommodation, although current legal definitions of public forums are no more
likely to include AOL than are current definitions of public accommodations. AOL
is a private entity, and the application of public-forum law to private spaces is
complicated and controversial. The Supreme Court has declined to classify
privately owned, publicly used spaces (like shopping malls) as public forums
under the U.S. Constitution, although a privately owned mall may be deemed a
public forum under state law because of its public functions.

I know of no cases that have tried to extend public-forum rules to privately
operated sites in cyberspace, but I anticipate them. From the perspective of an
individual speaker, media giants like AOL function like bureaucracies,
controlling what is effectively public space. And the more public the space
maintained by AOL, the sharper the conflict between the alleged civil rights of
people offended by hate speech and the civil liberties of people speaking.
Everyone has a right to walk down a public street, but no one has a right not to
be insulted there.

I imagine that AOL likes to regard this debate about speech as irrelevant. It
considers itself neither a public accommodation nor a public forum, and in fact
it would have relatively little to fear from a civil-rights suit based solely on
AOL's current status under federal law. But if Noah is likely to lose on his
civil-rights claim, he may well prevail on his contract claim. AOL's service
contract with its users includes a speech code that would please the most
politically correct of college administrators. Users must agree to provisions
stating that their accounts are subject to termination if they "harass, threaten,
embarrass, or do anything else to another member that is unwanted" or if they
"transmit or facilitate distribution" of "racially or ethnically offensive"
speech. It would be hard to devise a vaguer, more subjective rule than a
prohibition on "unwanted" speech; and I can't imagine why AOL thinks it can or
should save people from ever being embarrassed. But having stupidly imposed
extreme restrictions on speech, AOL may be liable for failing to try to enforce
them.

So under AOL's contract, Noah could succeed in establishing his right not to
be offended in a chat room--at the cost of his own right to offend or merely
embarrass anyone else, even unintentionally. It's hard to see this as a victory
for civil rights. It's hard to imagine how the civil-rights movement might have
prospered with equivalent restrictions on speech. Attacks on Jim Crow laws deeply
offended a lot of segregationists. Social change can be achieved without
violence, but it's rarely polite.


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