Thursday, December 04, 2008

Besides the "content", the audience and the speaker's identity become "part of the speech"

The ACLU has an interesting blog entry, dated Nov. 13, 2008, “Court Silences Political Speech, for Now,” link here. In this case, in 2005 Leslie Wiese and Alex Young were ejected from attending one of President Bush’s speeches when they showed up in a car with a bumper sticker that read “no blood for oil.”

This case is disturbing enough. It’s pretty crass to regulate political banners on car bumper stickers, although schools and companies have been known to do that with employee cars parked on their lots. Arguments have even been made that bumpers stickers can make one a target, or the property where it is parked become marked. It seems that Wiese and Young were using their First Amendment rights in the broadest, group-centric sense, freedom of assembly and petition. This wasn’t about blogging or social networking or even “reputation.” Nevertheless, the administration seemed to think that the composition of the audience was part of the speech, and incredibly a court agreed with them.

That makes me think of a distant legal or political analogy. Content posted on the Internet, as in a blog or profile or flat site, can be objectionable not because of the content on its face value, but because of the identity of the speaker. That is, the perceived public identity of the speaker, especially his or her position relative to others in a family or employment hierarchy (or a school “authority figure”) can be viewed as part of the speech. This is “The Existential Problem”. Instead of looking at the speech for its face value, the visitor questions why the speaker posted it, and attributes motives or purposes that could become legally significant, if they could be viewed as enticement. This problem has become more common in practice since social networking sites came into vogue around 2005, and employers started to feel that clients or customers would feel this way about their “professional” contractors or employees, who, after all, may be viewed as in positions of “trust”. And, as we are learning the hard way, power can matter as much as truth.

(See also July 27, 2007 on this blog.)

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