Trolling and Free Speech (What the First Amendment Says About the Seedier Side of Reddit)


1. Everything and Nothing

Like economics, language can operate on a principle by which scarcity determines preciousness. Words or phrases that are used too liberally can lose prestige and all meaning. In cases of a political debate, a phrase can be used so often, each party giving it a meaning all their own, that it comes to mean everything and nothing.

The same dynamic operates in everyday language. Usain Bolt’s performance in two Olympic Games was epic. The several keg stands that your frat-boy buddy performed last Tuesday night? That too was epic. The athlete who has a mere two seasons under his belt without breaking a single record and yet to show any longevity is just as legendary as his predecessor who has achieved countless milestones and has led his team to several championships.

This is not a curmudgeonly lament about the current state of language. Language is constantly evolving and most attempts to hold on to old customs as the world around us changes in turn changing the way we communicate are futile at best.

When it comes to political discourse, however, there must be at least some set of agreed upon premises at the core of any debate. If both sides are able to provide their own definitions and deny any facts presented by opponents, we are left with nothing but the worst kind of political double-speak that has caused so many to sour on the political process.

2. Trolling and the First Amendment

“Free speech” has lately become one of those catchall terms used to defend wildly variant actions whenever it proves convenient. In some cases of hate speech – which I personally believe to be worthy of protection, though this is not the topic I wish to address here – the purveyors of such content are quick to point to the First Amendment, not necessarily to remind us of their right to such speech, but to avoid addressing any criticism toward their message.

While one may have a right to hateful speech, such a right does not entail a freedom from criticism or response, which might very well lead the original speaker to revoke their initial message. This is the very essence of discourse most famously laid down by John Stuart Mill in On Liberty. The cure for bad speech, which is not to be banned, is more speech, which ideally corrects errors and surpreses hateful messages through reason and discourse.

It’s a lofty ideal easier in theory than in practice, but it is the reality of the First Amendment drafted in the US Constitution and fleshed out by key judicial decisions, and one that has served America well as David Cole eloquently argued recently in the New York Review of Books.

Reddit Logo (via Wikipedia)

Similarly, a broader and broader scope of actions seem to be falling under the umbrella of free speech. The free speech defence was employed to one of its greatest degrees of absurdity when internet “trolling” was brought back into the mainstream subsequent to Gawker writer Adrien Chen’s outing of Violentacrez, the most notorious troll on Reddit.

Reddit is a tricky concept to explain to those unfamiliar with the online community. Chen provides a helpful preliminary:

“Reddit, for the uninitiated, is essentially a social news site; with a free username, anyone can submit and vote on content and can do so anonymously. And anyone can start a forum on Reddit dedicated to their interests, known as a subreddit. Today, there are about 10,000 active subreddits out of nearly 100,000 total, spanning a dizzying array of topics from funny pictures, to Power Rangers, to pooping. If a post gets enough ‘upvotes,’ as they’re called, it can be propelled to the front page of Reddit and a massive audience.

Violentacrez, really a 49 year old programmer named Michael Brutsch, used his online anonymity to post offensive content on various Reddit forums known as subreddits. Brutsch’s greatest “claim to fame” is his creation and stewardship of the ‘creepshots’ subreddit, which has now been shut down. Chen writes,

His specialty is distributing images of scantily-clad underage girls, but as Violentacrez he also issued an unending fountain of racism, porn, gore, misogyny, incest, and exotic abominations yet unnamed, all on the sprawling online community Reddit. At the time I called Brutsch, his latest project was moderating a new section of Reddit where users posted covert photos they had taken of women in public, usually close-ups of their asses or breasts, for a voyeuristic sexual thrill. It was called ‘Creepshots.’

The response from Reddit was a defence of free speech against Chen’s unmasking of Brutsch’s real identity and his criticism of the “creepshots” and “jailbait” subreddits, the latter of which was dedicated to sharing sexualized images of underage girls, though not going so far as to post explicit child pornography. The key portion of Reddit CEO Yishan Wong’s response came as follows:

We stand for free speech. This means we are not going to ban distasteful subreddits. We will not ban legal content even if we find it odious or if we personally condemn it. Not because that’s the law in the United States – because as many people have pointed out, privately-owned forums are under no obligation to uphold it – but because we believe in that ideal independently, and that’s what we want to promote on our platform.

Though Wong acknowledges that private actors are not obligated to uphold constitutional rights, there is still a misunderstanding of the First Amendment in his categorization of “creepshots” as merely distasteful content. It thus proves helpful to address this case in light of constitutional cases that have fleshed out what freedom of speech and the First Amendment actually entail.

The most important point I wish to illustrate is that constitutional rulings on free speech have made it clear what the First The trollface (via Wikipedia)Amendment protects, but that all cases present unique circumstances and are to be evaluated based on these circumstances rather than through broad blanket claims that take free speech to cover any type of communication. This is especially true when rights of free expression come into competition with other rights.

Where such matters concern Violentacrez and other trolls, free speech does not directly protect the right to “creepshots,” but given the complexity of privacy law, it doesn’t necessarily prohibit such content, distasteful as it might be. There are  no easy answers.

[This piece is lengthy, so let’s take a break and enjoy the official trolling anthem.]

3. Cohen v. California and the First Amendment

The Cohen v. California decision was rendered by the US Supreme Court in 1971 and is well cited in First Amendment cases. This is not surprising given its thorough examination of the First Amendment and its scope and limits. It is especially important to understand the latter, which is usually neglected when someone shouts “free speech” in defence of particular actions.

In the case, Paul Robert Cohen was convicted by a Los Angeles municipal court for protesting outside a county courthouse while wearing a jacket that read “Fuck the Draft!” The opinion focusses primarily on the relation of the First Amendment to distasteful content as well as the government’s role in regulating such content.

The most important excerpt of Cohen deals with the role of government in the rights of citizens to express themselves and reads as follows:

The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. [1]

Secondly, a point is made concerning how the government might permissibly interfere with this right:

The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. [2]

What these statements convey is that free expression as enumerated in the First Amendment entails that citizens can express ideas of any substance without the interference of government. Nothing prohibits private actors from regulating speech, especially within the space that they own and operate. Furthermore, while the substance of speech may not be regulated by government, the manner in which it is conveyed may be addressed if it comes into conflict with other rights.

In the case of Mr. Cohen, he made no invasion into the private space of any group or individual to make his point. His message was not forced upon any listeners, who could simply leave the space in which he was protesting or ignore him, nor did he convey his message through means that compromised the privacy or integrity of fellow citizens.

When it comes to expressing a viewpoint in the public sphere, the substance of the message must be preserved for the sake of democratic freedom, and thus words or language cannot be regulated. Mere offensiveness or distastefulness of a message is not enough to curtail speech. This principle is reaffirmed in Village of Skokie v. National Socialist Party of America, which states,”…absent the narrow circumstances described above (home invasion or captive audience), the burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities’ simply by averting [his] eyes.” [3]

4. Hiding Behind Free Speech

The proclamations issued in the decisions above shed light on what freedom of speech means online and whether or not Reddit has any obligations to regulate content.

First and foremost is the matter of privacy invasion as a limit to free speech. In US law, privacy is to be respected in instances where one can reasonably assume that they are within a private space, such as a bedroom, bathroom, private residence, or dressing room. Personal property is also not to be compromised. In public spaces, however, privacy cannot always be assumed.

This being the case, the content of subreddits like “jailbait” and “creepshots” can only be evaluated on a case by case basis. Much of the content posted in these forums was not illegal. Some were taken from other parts of the web or from Facebook pages, which, depending on privacy settings determined by the individual user, could have made them public content. There are questions as to whether or not the photos were obtained by invasive measures or without the permission of subjects.

It is possible that content on “jailbait” and “creepshots” was obtained illegally, for example through hacking, and that privacy interests were invaded for the sake of redditors to exercise their “free speech.” No matter how one looks at this case, there is no single overarching principle that protects these forums wholesale. If content was obtained through the invasion of privacy, then it is illegal and not constitutionally protected. If it is distasteful but legal, then it is protected.

There is, however, also the matter of the First Amendment serving strictly as a protection from the intervention of government to regulate the substance of a message. Reddit, as blogger John Scalzi notes, is not a public utility. It is a private business that has the right to regulate content. If Reddit wishes to address the issue of lewd content on its pages, then it may do so. Also, being told by a website that you may not post exploitive pictures is not a violation of free speech.

Reddit is therefore in the position of having the choice to decide what it feels permissible. The notion of a free space on the web where ideas can be freely exchanged and interesting content can be brought to light is a noble one. The idea that exploitive pictures of underage girls is essential to this mission is dubious at best.

As such, Reddit can choose whether or not it enables individuals like Michael Brutsch to potentially invade the privacy of others and use Reddit as a channel for assault or if it will instead take a stand against such actions. Given the tragedies that have resulted from online harassment and exploitation, refusing to accept that negative consequences may result from activities occurring on the website you own by  hiding behind free speech to neglect broader complex ethical concerns is taking the lazy way out.

The “jailbait” and “creepshot” subreddits have now been shut down, but the argument concerning what free expression rights encompass will no doubt continue and just as fast as these forums have been shut down, replacements will arise.

Freedom of speech, properly understood, is not the freedom to say or do anything in any manner that one pleases. It is also not a phrase that should be used to neglect other moral duties, such as ensuring the dignity of others and maintaining civility. “Creepshots,” in short, are not protected by constitutional rights, nor are they necessarily prohibited, but Reddit should not be excused from addressing the moral and ethical questions presented by such content by hiding behind and promoting a misunderstanding of free speech.

***

[1] “Cohen v. California” in Philosophy of Law, 8th Edition, Jules Coleman and Joel Feinberg, eds., pp. 426-430, 428

[2] Ibid., 427

[3] “Village of Skokie v. National Socialist Party of America” in Philosophy of Law, 8th Edition, Jules Coleman and Joel Feinberg, eds., pp. 430-434, 434

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