THE SHATTERRED DREAMS OF THE BLOGGER 15 / PART 1
June 26, 2008
How do we actually go about the whole business of crafting a “freer” net? Does it entail dismantling the law regulating censorship? Do we really need such a thing as a grand all seeing pineappled eye committee that goes about awarding good conduct points for what is regularly published online? Coming to think of it; what actually is freedom of the internet along with the whole notion of free speech? Does a “free for all” really translate into a feral and dystopian net as it’s so often depicted? How accurate is that assessment?
You know what? I don’t know about you, but all this can get terribly confusing even for someone as dumb as me. For instance, we’ve all seen the “deregulate the net” flag with its half opened padlock and key symbol? Presumably, that’s supposed to convey the gist of what these 15 bloggers along with 30 supporters are trying to accomplish; freeing the net (they claim) from government regulation is going to revivify it with a higher degree of freedom and somehow seed the greater good and drive out evil – but what if I said to you, what’s been mooted will narrow rather than expand? Corrode rather than fortify the idea of free speech?
You see these past few weeks I have been spending time mostly in the baby chair with the likes of legal eagles like Missy Dotty, Montburan, Prima Delli and at least five other legal experts in this area; I’ve got to level with you, the brotherhood lacks experts in this area and these ladies from the various read clubs have been kind enough to take the time to explain to me using over sized crayons some of the misgivings of the blogger 15.
I am going to share with all of you the gist what I have been able to glean from this encounter – hopefully, it will assist you in making an informed decision concerning this whole business of “deregulating the net.”
(1) What’s the Litmus Test To a Freer Net?
According to Prima Delli:
“If you really want to understand this whole business of freedom of speech, the law and the proposal to set up this internet committee – you need to reverse the question and ask what exactly isn’t good for free speech in the net? If you don’t do that, you’ve just confuse yourself and the readers even further.”
As I discovered, this approach manages to winnow the hype from the salient. So let’s dive into it!
What do we see here? OK, for one free speech has absolutely nothing to do with concentrating power in the hands of a committee; it doesn’t matter whether they are bloggers or even a bunch of cookie cutters; the very essence of “free” in the “speech,” requires the whole idea of astudiously breaking up hierarchies, oligarchies and monopolies of power into ever smaller pieces instead of concerntrating them in the hands of only a few.
Here you need to consider whether the creation of a bloggers committee serves that end of breaking the monopoly of power?
Personally, I consider this the litmus or acid test whether something is really “free” or simply marketed as “free” or “new improved” and let me share with you why – As every social organism and it doesn’t matter whether it’s social; political; economical or technologically driven has a natural tendency to move from chaotic to hierarchical. That’s to say, given enough time and motivation; they will ALL without exception begin the task of dedicating themselves to empire or temple building.
If you peruse through human history, it doesn’t matter whether it’s the oligarchy of pencil sharpeners or a bunch of online gamers, all of them eventually aspire to the power quadrant where the goal is to corner the market and establish command & control; every oligarchy true to the Darwinian lexicon eventually migrates to assume some semblance of order, shape or form to fulfill this one organization; where eventually, not only does it monopolize the information flow by attempting to insert themselves strategically somewhere in the supply chain, but it also allows them to color and mythologize their keep and eventually what we are really left with is a very “processed” version of the truth; that’s really good for nothing except passive consumption which usually only creates docile audiences that manages to keep the elites in power. There in a nutshell is a brief lifecycle of how the whole idea of the “free internet” degenerates into mud when people start proposing the idea of the temple building which they try to pass off as the necessary goodness that we cannot do without.
As I said in the very beginning of this write up; one really needs to go beyond the marketing tag line and the symbolism of the half open lock and floating key and this is where I will share with you what I believe to be a free internet.
(2) Free Speech Should Never Be Confused With Sedition & Hate Speech
As Missy Dotty, the owner of the site “Just Stuff” that we are currently raiding mentioned:
“It’s a common lay mistake to muddy the whole idea of freedom of speech with the whole idea of online hate or even racist speech.
This problem is especially aggravated in the case of the bloggers 15.
As from what little I have been able to make out so far; what they have effectively done is lump; the internet; film and publications into basically one general heading.
In short, that’s bound to create problems. Let me share with you why?
What we need to understand here is although most lay people consider these information delivery mediums as just genres, each medium is legally very specific and carries with it – a very distinctive methodology which is often used to resolve disputes according to their respective text, tradition, precedent, and reason.
Many of these have developed independently and literally gone off in different legal trajectories – so when one lumps it all together, the danger presents it’self; they will tug and pull in different directions amplifying the errors further.
If you ask most observers who have some experience in international law & policy formulation, I believe they are almost unanimous regarding this issue; it’s almost impossible to talk about the internet, film and publication censorship under one breathe.
You are not going to get very far with that sort of flawed model, not when it comes to something as complex as regulating the internet using a non elected committee.
Here we need to be mindful, what they say is really not as important as how it manages to scale out against the legal framework.
That’s to say, it may sound good natured and even reasonable and possibly even intelligent, but if it fails to effectively harmonize with the existing legal framework; then in the long run what it will happen is it will cause more problems than resolve them.
That creates not only unnecessary confusion but produces “double speak” and we need to be especially mindful of this theoretical possibility. As what the blogger 15 may be proposing may very possibly even undermine the integrity of the current penal system relating to regulating hate speech.
This is evident when we look very closely at how the 15 bloggers justify the whole idea of community regulation and how they seem to equate the whole issue of freedom of speech with over bearing state inspired interference.
The general formulation which they seem to advance is as follows; the higher reliance of state laws such as the sedition act = heavy handed use of the law = draconian use of the law presumably at the expense of freedom of speech.
This is patently not true Baby Darkness – are you listening to me? Stop playing with your peas!
Now bear this in mind Darkness* – freedom of speech as a legal school of thought has very little to do with hate speech. This may sound odd to the lay man, but in law they are treated as separate entities for very good and practical reasons.
Neither is increased emphasis on the sedition act necessarily translatable into a greater erosion of elemental rights in freedom of speech i.e conclusive evidentiary indication that a regime is draconian or even over bearing in possibly denying it’s citizenry an elemental right to free speech.
I wish to make this clear by way of a recent illustration; recently the Justice Ministers of the European Union agreed to make “incitement to racism and xenophobia” a criminal offence in all 27 member states.That means it’s a criminal offence to deny the occurrence of the Nazi holocaust. What we see here is the clearest example of what I mean when I say hate speech has absolutely nothing to do with the whole idea of elemental rights concerning the right to free speech. As what is actually being addressed in Brussels is the issue that pertains solely to the incitement to violence i.e the sedition act.
However, if one peruses through the discourse of the blogger 15 and their associates very carefully; this is often lumped together and treated as “one reality.” No where Baby Darkness do we even see an attempt to categorise, differentiate and delienate what is meant between valid free speech which deserves protection and hate speech which doesn’t deserve it!
IMO, this has to be an oversight that can only confuse the entire discussion further and this throws a long shadow on the whole idea of “community moderation.”
I think readers would do well to acquaint themselves with the finer issues relating to free speech and salient components of the sedition act as from what I am able to make out from the very limited discourse that’s floating around the internet – This is jugular Baby Darkness! The issue of free speech, sedition and incitement needs to be detangled and treated as separated discussion issues – this omission is not only an over simplification of how the law works but it also paints a lopsided picture of how freedom of speech as a school of thought is supposed to apply sensibly.
Here hate speech is treated as sedition and legally at least it is quarantined from all the protection that one usually associates with the first amendment right of the freedom of speech and expression.”
(3) How Will Community Regulation Harmonize With The Penal Code?
Another flaw in the blogger 15 submission was highlighted by Montburan of the Siglap read club.
“I think we need to go further into the whole idea of ‘free speech’ as an epsitomology rather than just throwing this term around and equating it with the loose idea of free speech = the right to say anything under the sun.
The term, “free speech” in the legal sense is scapel specific and was defined by Meiklejohn, who argued that it’s NOT important that everyone gets to speak, but that everything WORTH saying was said.
Implicit within this definition is the need to reject and even exclude “by force” [legal force] everything that is considered antithetical to free speech and this obviously includes hate speech and racial incitement - so what we can see here is free speech first demands the precondition of perceived “quality,” which in the Meiklejohn sense hinges on whether it is “worthy.”
Now it would seem this term “worhty” is equatable to the whole idea of “social norms” which is so often vaunted by the 15 bloggers – but bear in mind, this is not a consensual or even social definition as it remains one that is strictly defined by the “norms” one usually associates with either criminal or civil law i.e the definition of the reasonable man standard / Oliver Wendell Holmes - so this really begs the question; what are these 15 bloggers talking about when they propose to oversee the affairs of the net using the social metrics of “social norms?”
We know what they are referring too is not even a creature of law; so what is it really? Who decides on the whole issue of what is and isn’t a ”social norm?” Are they referring to some timeless definition that has a universal appeal? I hope not as there is really no such creature in existence that’s why laws exist in codified form and even that’s not enough. We need the doctrine of precedent along with judges and lawyers to produce the answers. And even then we get it terribly wrong sometimes!
What I need to emphasize here is this; this is a terribly complex legal issue that should only be handled by professionals such as the law enforcement agencies, DPP and perhaps their legal peers and let me share with you why as I don’t want to come across as a territorial snob?
There is a very sensible reason why this should be the case; as I can very well argue if it were coursed through this so called committee which these 15 bloggers propose to form; then this may have the effect of prejudicing the criminal proceedings and may even deny the accused a fair trail in court?
What I want to underscore here is we are talking about the fundamental right to a fair trial here i.e preserving the integrity of the legal process; and we really need to ask ourselves whether the formation of this committee adds or subtracts value in that regard?
I don’t see how it adds even a modicum of value as the issue of legitimacy is still very much up in the air. Be that as it may, I really don’t want to go down that road.
I want to emphasize here when I use the term “legitimacy,” here it’s surgically precise in so far as I am not referring to something as a fuzzy moral or inalienable social right, but rather one that derives it legitimacy from the constitution i.e the right of every accused to be presumed innocent unless proven otherwise and this burden of proof is extendable to even someone who is allegedly commits an offence under the sedition act – what we really need to consider is the legal justifications which makes possible the formation of this committee in the first place; by what constitutional authority do they derive they mandate to even pass judgment on others. I want to emphasize this is very different from an association or a professional body; as here there is a fatal gap in their logic; associations can discipline their members; but if you examine how they work; they have a right to do so as most of their members are subscribers. However, in this particular case the committee which the blogger 15 are attempting to set do not even possess that basic justificatory basis to exercise their power over the rest of netizens in blogosphere – for one they did not even seek the referendum – neither were they given a mandate and its arguable they do not even have the legal basis to impose their definition of netiquette on the rest of us.
I need to emphasize here this is only the tip of the iceberg as we can we go much further to take issue with whether this committee as I said earlier has even the locus standi i.e legal right to adjudicate over hate speech in the net without at least undermining the authority of the entire criminal law system in Singapore!
From my assessment, they are in effect proposing setting up of a kangaroo court and that of course raises the specter of whether they even have the constitutional right to do so? I think what I need to emphasize here again is this; you do not need to have real power to prejudice the rights of an accused to a fair trail; and this really reduces the entire argument of the blogger 15 to something slightly higher than the “very dubious.”
Especially, when they claim time and again quite misleadingly; they do not have any “real power.” What I need to impress under the strongest possible terms is the very semblance of power is usually enough to prejudice a fair trail. That’s one of the reasons why in contentious legal cases a news black out is usually de riguer as that’s usually the only way to ensure the accused has the benefit of good legal light – I therefore have firm reservations whether the setting up of this committee is even possible legally – I think what we need to understand here is the right of the accused i.e the person who allegedly made those seditious remarks deserves to be protected – and this naturally leads us to consider very seriously what is the best means to guarantee this?
Are you writing this all down Darkness*?????????????”
[This is article has been brought to you courtesy of the newly created Free Internet Library Board – 2008 / The participants are Missy Dotty, the site owner of “JUST STUFF.” Montburan and Prima Delli who used to head the Siglap Read Club / Catherine the Great, Holland V Read Club / - The brotherhood is appealing for lawyers with International Law training to step forward! This message from Darkness: http://ca.youtube.com/watch?v=G1xiFRccd88 [ Please note *’ The brotherhood press has not record of “Bambi” – “Bad Boy” – “Baby Bambi Boy” - in its record. We assume these references are directed to the personage of one “Darkness” and the FILB has made the necessary changes – this article was generated by a N-95 program courtesy of the Mercantile Guild – FILB 2008]
[Pls note this is a EP version, the EV of this article runs for 30 pages and is available upon request from the FILB]
(1) University of Sydney, The Julius Stone Address 2003.
(2) Knight Professor of Constitutional Law and the First Amendment, and Director, The Information Society Project, Yale Law School.
(3) Meiklejohn et al, Political Freedom: The Constitutional Powers of the People (1960)
(4) Prof David Cole; “Not a suicide pact: The Constitution in a Time of National Emergency – Nov 16. 2006 issue The New York Review.
Read The Part II Here!
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