Rackspace did the right thing. This is not a free speech issue since there are more articulate ways of expressing your dislike of some belief system without desecrating objects that a certain group considers valuable.
No, it's not a "free speech issue" because you have no right under the Constitution to post whatever you'd like on Rackspace's private property, and the contract you enter into to post anything there specifically enjoins you from posting "harassing" or "hate" speech.
Sorry to be pedantic, but people have weird ideas about what the 1st Amendment actually means. "Congress shall make no law" does not mean "Rackspace shall make no rule".
In other words, you have no free speech on the internet because all the routers, wires, servers, links, modems are the property of their owners and they are free to censor whatever you post as long as they have sufficiently ambiguous clauses on their contracts that may or may not involve you as a part.
How far can you bend your constitution before it breaks?
You aren't contractually bound when you use bizarre routers and wires, but your ISP probably holds you to a similar agreement. Also, you can do whatever you want until you get shut down, but a court of law will see it from the contract side. You can feel free to say whatever you want using your own resources, but if you're using someone else's and they don't like what you're doing, then tough shit.
You have a good point that a private monopoly can ultimately limit public rights like free speech. If there's no alternative provider that is willing to host hate speech, you can't broadcast it in that form.
I can think of three ways to provide for that:
1. Public servers, possibly sponsored by the govt
2. Regulation of Internet access run by private companies
3. Waiting for private competition to create such a space
The first one worked well in the early days of the Internet. There were lots of rules against commercial use of publicly-funded computers but little content regulation. Despite what some may think about the govt, it has lost most times it has attempted to limit free speech.
Regulation sort of works for railroads and telecom lines. Bell gets a monopoly on wiring but they have to provide access to disabled people, can't do discriminatory pricing, etc.
The last one is least likely to succeed. I don't know of any private US company that advertises themselves as "no takedown unless required by court order". It seems there is little profit advantage in marginalized speech compared to the cost of defending against attacks on it.
While it's good to see Ipredator and BayImg providing services with this kind of guarantee, the fact that such an effort only seems possible in Sweden should give us pause.
Well, yes. One of the great things about the internet is that its regulation, as compared to other industries is relatively light. The flip side of that is that the government has little or no legal basis to ensure that people have a platform from which to speak.
As good citizens of a country Rackspace personnel also abide by certain rules and one of those is abiding by the laws of the land. The US constitution is pretty explicit about limiting expression and free speech so I can see how it could be argued that this is a free speech issue but that was not the point I was making.
"When operating a communications service, you must provide equal access to all views" is not one of the laws of the land. It isn't even a law that governs network television stations, and they run on spectrum borrowed from the people.
To be pedantic, according to Supreme Court, states can pass laws that extend the freedom of speech onto private property; some states e.g., California do so, but they target de-facto public spaces such as shopping centres, not servers in a rack:
This is why people make a distinction between the spirit and the letter of the law. The point is that congress represents the people and if every private citizen starts censoring everything on their property well then technically congress is not limiting or restricting anything but you are left with a society that is devoid of any free speech.
The spirit of the law, in the sense of what writers of the constitution intended is a lot more limited: not only did they specifically not want it applying to private property, they didn't even mean to apply it to states; several states had established churches. Fourteenth amendment incorporation is why is why the first amendment applies to state and local governments, as well as federal government. Some amendments e.g., second (The Right to Bear Arms) weren't incorporated until recently.
> but you are left with a society that is devoid of any free speech
You have your property, on which you can practice free speech. Find another managed host, colocate at a datacenter yourself or get a DSL line with a static IP. There's also public property: universities, libraries, public squares.
They also didn't anticipate various mediums of expression being supported by very few individuals and even as a private owner of something you are still going to deal with other people using whatever you own to express themselves in some fashion and if the government chooses not to limit speech on collective property then as a good citizen you should do your best to emulate the states best practices because after all those servers are powered by some kind of electric power plant that is supported by the people that are participating in the collective political process. Anyway my point was not whether this should be framed in terms of free speech and how a group of fear mongering, hateful, hypocritical xenophobes were having their first amendment rights curtailed but that Rackspace did the right thing by knocking them down a few pegs.
Supposing it was New York Time, sure something quite unimaginable, but supposing this web host decides to terminate their contract and no other host in the country would provide them with a hosting service, would that be an infringement of freedom of speech?
Perhaps if we view it from the perspective of the black letter of the law, that is the constitution, the highest law of that country, it might not be an infringement. However freedom of speech goes beyond the constitution, it is a principle ingrained in our society and culture.
To address your differences between private and public, a newspaper of course has no obligation to give him space in their platform, nor the television, but the internet is different. The former two are selective, the internet is free for all. If private bodies are able to go around policing the kind of content that is to be found on the net, the difference between them and the government is a mere technicality.
So, free speech is only allowed for adequately articulate forms of expression, as judged by Rackspace management.
No. This is a free speech issue. Those who feel offended are also free to burn bibles and desecrate whatever they feel proper.
As much as we disagree with the book burning festival (it is a stupid thing to do and there are much more articulate ways to express disagreement with Islam), I find freedom of speech is a much more important issue than the sensitivities of religious groups.
I would disagree. They signed the contract with rackspace that said they would abide by their polices and if they violated them, they would shut down the site. Nothing is stopping the church from hosting their own website.
That's a nonsense question, because the Constitution doesn't give you the right to use Rackspace's computers in the first place. Rackspace owns them, and has the understandable perception that it's their choice how they get used, not 'rbanffy's.
Counter-example: You own a bookstore located in a mall -- leased space. The mall's managing company says you are no longer allowed to sell Bibles.
Now I'll apply your logic.
"The Constitution doesn't give you the right to use that mall space in the first place. The mall owns it, and has the understandable perception that it's their choice how it gets used, not yours."
Hopefully you can see that something has gone wrong, regardless of legal compliance. Freedom is neither bestowed by a piece of paper nor by men with guns or gavels. It is a cultural trait manifest in our actions. We're not free unless we live like free people.
Would you call yourself a musician if you had no instrument to play? How can you claim to have free speech, if your medium of communication is removed whenever you try to say something unpopular?
Counter-counter-example: you operate a mall and the Ku Klux Klan wants to lease one of your shops.
Note that discrimination because of "race, color, religion, national origin, sex, handicap or familial status" in the sale or rental of real estate is unlawful under the FHA only in the housing market.
What's your point? The issue here isn't whether I think people should or shouldn't be allowed to burn the Koran; it's "what does the 1st Amendment mean?"
The understanding of the 1st amendment is your straw man. By refuting it you believe you successfully refute the argument that this is, in effect, a disturbing form of limitation of free speech by a private corporation who happens to own the machines used to manifest the speech they disagree with.
You absolutely have the right to free speech in the US. But any owner of private property can pretty much ban you from that property, for example (there are certainly some protected exceptions, but in general 'the law' is on their side).
Similarly, Rackspace has the right to stop servicing their customer if they feel the customer has violated the contract. Now, whether or not a court has to step in to determine the validity of the contract, etc, is a completely separate issue.
But this most certainly all has absolutely nothing to do with constitutionally protected speech.
In effect, you have your free speech curtailed because you have to express it using someone else's property. Companies like Rackspace may prevent your free speech from reaching anyone for any reason that fits the contract you signed.
I am not sure the analogies work. It's a Rackspace server on a Rackspace datacenter but nobody is swearing loudly in or carrying weapons into Rackspace's offices.
The weapons being a legal sense. Despite having the legal right to concealed carry, a building can forbid you from bringing it inside.
They are all just cases of someone who is providing a service being able to give stipulations over what can occur there. A church won't let you swear, some places don't want you to concealed carry, and a hosting provider doesn't want you to organize hatred.
I don't know if the laws have changed since 1995, but back then when I worked for AT&T, you could have your telephone service turned off for using profanity across state lines.
I was actually a part of making this happen for someone who called in -- I had a high voice at the time, got called "ma'am" a lot. A male customer was coming on to me, wanted to send me flowers. As I was trying to assist them, I noticed the call records - some employee codes I recognized as males had notes like "lost call" and "customer hung up"; females had notes like "customer made inappropriate comments". Long story short, a supervisor listened in, and after they made sexual advances and used profanity, got their telephone service cut off (and I don't just mean long distance, I mean local service - the LECs in those days still had a good relationship with AT&T)...
So where's the right of free speech there?
Still not quite the same issue, because that involved federal law, whereas this is regarding Rackspace contracts... But it's an example of something trumping free speech.
The shorter and more classic example is the [lack of] right to shout "Fire!" in a crowded theatre [when there is no fire].
While I like this in theory (because burning the Koran en mass is a stupid idea) I'm troubled by it in practice. Does this mean that if I espouse on an idea that Rackspace doesn't like they'll pull my service? Obviously this has nothing to do with the 1st amendment... Rackspace may terminate my use of their property by grounds in the contract I've signed with them. I'm not sure, however, I like the idea of a hosting company policing the ideas that are posted on their servers.
Fair point, I guess if a movement to burn the Koran "...contains harassing content or hate speech" I have to wonder what other ideas and writings, in Rackspace's considered opinion, might violate that clause in their TOS? As this isn't a legal or constitutional issue, one presumes they aren't using the legal tests for hate speech/hate crimes. Is this a 'I'll know it when i see it' sorta test?
It sounds kind of scary when you put it like that, but generally I've no principled objection to a server policing its hosted content for contract compliance as long as it's not the only hosting game in town. If I'm looking for a server, I get to choose whether I trust or want Rackspace. If I'm looking to provide a service, I get to choose whether I want to provide it to crazy dangerous guy. If the guy doesn't think he broke the contract (I don't know what he actually had on the site) let him complain. Otherwise, he can a) find another server that doesn't care about how nuts he is, b) set up his own server, c) exercise his free hate speech from his personal pulpit, or d) join the presumably already established subreddit for Bookburners against Censorship.
If Rackspace doesn't like your idea, and takes your idea down, you no longer pay Rackspace. Instead, you'll go and pay one of their competitors to host your message. Rackspace may like policing, but they probably would enjoy spending your money more.
If all hosting companies decide that "Quran book-burning messages will not be hosted", then you have the freedom to start your own niche business that services these needs. Money: It makes the world go 'round.
I am no lawyer, but along the lines of your question: by asserting editorial control of the pages they host, is Rackspace abandoning the safe-harbor protections of the DMCA?
People who think this is a free speech issue wrt Rackspace are confused about how the first amendment works. The right to free speech, is not the right to a platform from which to speak. This was the law-of-the land before the internet even existed.
Back before Craigslist killed classified, news papers absolutely had terms which specified which content they would or wouldn't run.
The "constitutional" aspect (if there is one) isn't the issue, though. The issue is whether I, you, or anyone else, wants a web host that takes down web sites it disapproves of. A web host can take down websites for misusing apostrophes, if it is entitled to by contract (if there's a broadly drafted term in the contract, this might even be possible in the real world, not just hypothetically). But would you want to do business with them?
I'm usually impressed by the discussion on Hacker News but the amount of ignorance about the nature of the 1st Amendment and the difference between government and private actions in this discussion is disheartening.
The US 1st Amendment is a restriction on government actions not a restriction on private actions or private contracts. There may be other legal reasons why private actions might be controlled or regulated but please don't point to the 1st Amendment in order to justify that control.
Finally, where do people get the idea that the concept of 'free speech' includes the notion that other people, companies, or the government are required to support and assist you in communicating your message? The freedom to 'speak' without government coercion is not a guarantee that your speech won't be met with ridicule, criticism, rejection, or counterargument and appeals to your 'free speech' rights being violated when that happens is absurd.
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[ 4.0 ms ] story [ 105 ms ] threadSorry to be pedantic, but people have weird ideas about what the 1st Amendment actually means. "Congress shall make no law" does not mean "Rackspace shall make no rule".
How far can you bend your constitution before it breaks?
I can think of three ways to provide for that:
1. Public servers, possibly sponsored by the govt
2. Regulation of Internet access run by private companies
3. Waiting for private competition to create such a space
The first one worked well in the early days of the Internet. There were lots of rules against commercial use of publicly-funded computers but little content regulation. Despite what some may think about the govt, it has lost most times it has attempted to limit free speech.
Regulation sort of works for railroads and telecom lines. Bell gets a monopoly on wiring but they have to provide access to disabled people, can't do discriminatory pricing, etc.
The last one is least likely to succeed. I don't know of any private US company that advertises themselves as "no takedown unless required by court order". It seems there is little profit advantage in marginalized speech compared to the cost of defending against attacks on it.
While it's good to see Ipredator and BayImg providing services with this kind of guarantee, the fact that such an effort only seems possible in Sweden should give us pause.
http://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._Ro...
The law of the land very explicitly says "Congress shall make no law restricting..." not "Rackspace shall shut down no website".
The spirit of the law, in the sense of what writers of the constitution intended is a lot more limited: not only did they specifically not want it applying to private property, they didn't even mean to apply it to states; several states had established churches. Fourteenth amendment incorporation is why is why the first amendment applies to state and local governments, as well as federal government. Some amendments e.g., second (The Right to Bear Arms) weren't incorporated until recently.
> but you are left with a society that is devoid of any free speech
You have your property, on which you can practice free speech. Find another managed host, colocate at a datacenter yourself or get a DSL line with a static IP. There's also public property: universities, libraries, public squares.
Perhaps if we view it from the perspective of the black letter of the law, that is the constitution, the highest law of that country, it might not be an infringement. However freedom of speech goes beyond the constitution, it is a principle ingrained in our society and culture.
To address your differences between private and public, a newspaper of course has no obligation to give him space in their platform, nor the television, but the internet is different. The former two are selective, the internet is free for all. If private bodies are able to go around policing the kind of content that is to be found on the net, the difference between them and the government is a mere technicality.
No. This is a free speech issue. Those who feel offended are also free to burn bibles and desecrate whatever they feel proper.
As much as we disagree with the book burning festival (it is a stupid thing to do and there are much more articulate ways to express disagreement with Islam), I find freedom of speech is a much more important issue than the sensitivities of religious groups.
Now I'll apply your logic.
"The Constitution doesn't give you the right to use that mall space in the first place. The mall owns it, and has the understandable perception that it's their choice how it gets used, not yours."
Hopefully you can see that something has gone wrong, regardless of legal compliance. Freedom is neither bestowed by a piece of paper nor by men with guns or gavels. It is a cultural trait manifest in our actions. We're not free unless we live like free people.
Would you call yourself a musician if you had no instrument to play? How can you claim to have free speech, if your medium of communication is removed whenever you try to say something unpopular?
Note that discrimination because of "race, color, religion, national origin, sex, handicap or familial status" in the sale or rental of real estate is unlawful under the FHA only in the housing market.
What's your point? The issue here isn't whether I think people should or shouldn't be allowed to burn the Koran; it's "what does the 1st Amendment mean?"
You absolutely have the right to free speech in the US. But any owner of private property can pretty much ban you from that property, for example (there are certainly some protected exceptions, but in general 'the law' is on their side).
Similarly, Rackspace has the right to stop servicing their customer if they feel the customer has violated the contract. Now, whether or not a court has to step in to determine the validity of the contract, etc, is a completely separate issue.
But this most certainly all has absolutely nothing to do with constitutionally protected speech.
In effect, you have your free speech curtailed because you have to express it using someone else's property. Companies like Rackspace may prevent your free speech from reaching anyone for any reason that fits the contract you signed.
It's important
You have the right to free speech, but you're probably going to be quickly ordered to leave a church if you begin swearing loudly.
You have the right to bear arms, but buildings are free to forbid you bring in weapons of any sort.
They are all just cases of someone who is providing a service being able to give stipulations over what can occur there. A church won't let you swear, some places don't want you to concealed carry, and a hosting provider doesn't want you to organize hatred.
Except, possibly, finding an ISP whose TOS are more tolerant of customer content. I'm sure they exist, I just wouldn't know where to find them.
I was actually a part of making this happen for someone who called in -- I had a high voice at the time, got called "ma'am" a lot. A male customer was coming on to me, wanted to send me flowers. As I was trying to assist them, I noticed the call records - some employee codes I recognized as males had notes like "lost call" and "customer hung up"; females had notes like "customer made inappropriate comments". Long story short, a supervisor listened in, and after they made sexual advances and used profanity, got their telephone service cut off (and I don't just mean long distance, I mean local service - the LECs in those days still had a good relationship with AT&T)...
So where's the right of free speech there?
Still not quite the same issue, because that involved federal law, whereas this is regarding Rackspace contracts... But it's an example of something trumping free speech.
The shorter and more classic example is the [lack of] right to shout "Fire!" in a crowded theatre [when there is no fire].
This is nothing like shouting "fire" in a crowded theater. It's not also profanity or improper conduct in a one-to-one conversation.
If all hosting companies decide that "Quran book-burning messages will not be hosted", then you have the freedom to start your own niche business that services these needs. Money: It makes the world go 'round.
Back before Craigslist killed classified, news papers absolutely had terms which specified which content they would or wouldn't run.
The US 1st Amendment is a restriction on government actions not a restriction on private actions or private contracts. There may be other legal reasons why private actions might be controlled or regulated but please don't point to the 1st Amendment in order to justify that control.
Finally, where do people get the idea that the concept of 'free speech' includes the notion that other people, companies, or the government are required to support and assist you in communicating your message? The freedom to 'speak' without government coercion is not a guarantee that your speech won't be met with ridicule, criticism, rejection, or counterargument and appeals to your 'free speech' rights being violated when that happens is absurd.
.... except..... there are about a billion images, jokes, articles, sites degrading Jesus Christ and advocating destroying Christianity