In Cyberbullying, Trolling, and Cyberstalking: the Dark Side of Free Speech (part 1b), computer security expert witness Steve Burgess answers the question What is Free Speech?
Also not protected is harassment, the act of systematic and/or continued unwanted and annoying actions of one party or a group, including threats and demands. This could include discrimination based on race, gender, or sexual preference. It could include particularly aggressive bill collecting, or some forms of blackmail
Threatening to inflict great bodily harm (“I will stab you in the eyeball,” would qualify. “I will smack you in the kisser,” would not) or death would be illegal if the person has an apparent ability to carry out the action. Idle threats would not likely be found to be illegal.
False advertising – knowingly communicating untruthful or misleading statements about a product or service is not protected. Oddly (and somewhat maddeningly), political false advertising is protected.
Some symbolic actions are unprotected if they are otherwise illegal. I might feel strongly about an issue, but tagging a building with my message would not be protected. Neither would the act of burning a cross on private property, or littering, even if it was a political statement.
Plagiarism of copyrighted material is not protected (although it may be under certain circumstances, such as if it is satire, or is partially quoted but with attribution).
So we can see that we have a broad right to expression, as long as such speech does not run afoul of certain other laws restricting particular classes of activity. And for the most part, we are free to express ourselves anonymously.
Now we have entered the Internet Age and we find that the Web can provide easy anonymity. We also find that very many feel emboldened to engage anonymously in vile, despicable and dangerous statements, without much fear of retribution for the pain and damage that their words may cause others.
When people are speaking face-to-face, it is easy to determine who it is whose speech shades (or possibly charges) over the line from protected expression into unprotected or even illegal forms of behavior. But Internet anonymity protects the offender from being identified, from witnesses being able to testify against the offender. In some cases, the speaker may not be identifiable; in others the speaker may be actually be impersonating someone else. And when anonymous, there’s not only less or little chance of being found out, there’s also less or little chance of social norms checking such behavior through public ostracism or social shame – both mechanisms that commonly keep otherwise objectionable behavior in check.
Perhaps this is why Internet trolling, cyberstalking and cyberbullying are becoming more and more widespread.
In Part 2 of this series, we will explore what these terms mean, show examples of their use, and discuss the damage their practice does.
Burgess Forensics offers computer forensic & electronic discovery and expert witness testimony since 1985.