Wednesday, December 15, 2010

Law enforcement stings off of social media raise implicit content questions (again)

A backpage Metro story in the Washington Post on Wednesday Dec. 15 by Maria Glod, about the FBI charges against Awais Younis (or Mohanme Khan or Sundullah Ghilzai) for threats made on Facebook pages (website url link) brings up a related problem considered here before, implicit content.

It’s true that law enforcement regularly trolls social media and blogs and Twitter for clues for crimes (which some people are amazingly brazen about in bragging online – check another story in the same Post by Marc Fisher) and for threats, and there have been numerous arrests and prosecutions since the late 1990s for making threats on the Internet (“through interstate communications media”), especially since 9/11. But what if someone writes a fictitious story about such an incident and posts it online for “free” browsing?

If the characters in the story were identifiable (even if names were changed) and the story were plausible, there could occur a defamation or libel issue (we’ve discussed libel in fiction here before, esp. July 27, 2007). But if one of the characters were the speaker himself, would or could law enforcement look upon it as a “threat”? That’s where “implicit content” or “gratuitous publication” comes into play.

One could pose the question even about a self-published novel or screenplay in conventional book or hard copy DVD or CD format, if it the protagonist was identifiable. Ironically, if the novel or self-distributed video sold copies and made money, the implicit content question might go away: if the publication resulted in a “rational” constructive purpose (profit), there might not be a reason for law enforcement to question another “purpose” for the publication (implying a threat).

The question of the legitimacy of some self-publication came up recently with a “guide” by Phillip Greaves, offered on Kindle, which Amazon had to withdraw after popular pressure. In the future, self-publishing services may feel pressured to pay more heed to the “purpose” of the material being offered and track whether they actually generate revenue in a manner normally expected in business.

That brings us back to the question, does free speech provide its own justification? Or is it morally and legally appropriate to question what other purpose it serves? Does someone need external “standing” to speak to an issue publicly and without supervision, and reach an audience?

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