Free Speech and Censorship in Online Communities

Every so often in the business-oriented online communities in which I participate, the issue of free speech and censorship comes up, usually from someone (or several someones) who is testing or pushing the envelope of the acceptable boundaries within the community — profanity, flame wars, etc.

Is free speech an absolute right within online communities? Can an online community, regardless of its size and membership requirements, establish and enforce a more restrictive code of conduct?

There is a long, well-established precedent for moderation/governance in online communities — even ones that are open to the public. Whether it has been tested for constitutional validity in court or not (and I haven’t found any court cases, but would greatly appreciate any references anyone may have), online communities have for years been in the practice of having codes of conduct that were far more restrictive than constitutional protections. Even large, open membership communities have moderators who are able to edit or delete posts and suspend or eject members who violate those codes of conduct. To say that the boundaries of constitutionally protected free speech is applicable to any privately-owned online community is to go contrary to decades of business practices.

Do blogs change this? What about sites like Gather, Ecademy or AlwaysOn, in which individual blogs are aggregated or displayed in the front page and other pages? One could make the argument that blogs are somehow different because of the fact that they are an individual voice rather than a community space. However, the aggregation of them on the front page and the nature of the threaded comments would, I think, negate any such argument. The site may call them blogs, but if they’re aggregated and allow comments, they’re still really just one big threaded discussion forum. I doubt a court would see a substantial difference simply based on the slight technical difference.

Even so, most hosting companies, including blog hosting companies, also have terms of service that are more restrictive than free speech limits, typically restricting hate speech and pornography, among other things. For example, prohibits the use of PayPerPost. Is that a violation of a blogger’s right to free speech?

Under the Uniform Commercial Code, we all have the right to voluntary restrict our free speech by contract, and when we join an online community we are doing just that — subject to whatever the terms of service are. In fact, the contract doesn’t even have to be explicitily signed in order to be in effect. Consider that when you walk into a theater or restaurant, you give up some of your free speech rights. Do anything that is significantly unpleasant to other patrons — talk too loudly, let your kids run wild, etc. — and you’ll be warned and eventually ejected.

Why would anyone expect an online community to be any different?

You do have the right of free speech, but the owners of a community also have the right to establish and enforce codes of conduct within the community, and be joining that community, your right of contract supercedes your right of free speech.

So when you find yourself bumping up against the boundaries of behavior in an online community, you might want to consider whether that community is really the right community for you. If so, then you can either adapt your behavior to the code of conduct or you can use persuasive means to try to change the code of conduct. But don’t make cries of “Censorship!” — you gave up that right when you joined.