The US flag with all its stripes and a few of its stars was adopted by a resolution of the Second Continental Congress in 1777. But today, overpriced textbooks and underpaid schoolteachers have sanitized most of our history and hidden the early controversies while fluffing half-truths, leaving us unclear about what that flag really stands for.

Fortunately, this is America and we’ve got movies to tell us what our teachers didn’t. Just read this quote from President Andrew Shepherd in American President:

America isn’t easy. America is advanced citizenship. You’ve got to want it bad, because it’s gonna put up a fight. It’s gonna say, “You want free speech? Let’s see you acknowledge a man whose words make your blood boil who is standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours. You want to claim this land as the ‘land of the free’? Then the symbol of your country cannot just be a flag. The symbol also has to be one of its citizens exercising his right to burn that flag in protest. Now show me that, defend that, celebrate that in your classrooms. Then you can stand up and sing about the ‘land of the free.’”

So I thank Ernie Miller for reminding us of Texas v. Johnson and US v. Eichman, a series of cases that established the legal right to burn a flag. That, my friends, is something worth celebrating on Flag Day.

america, american president, burn, citizenship, civil liberties, civil liberty, first amendment, flag, flag burning, flag day, flags, free speech, liberty, patriot, patriotism, rights

I’ve been talking a lot about remixability lately, but Nat Torkington just pointed out that the web services and APIs from commercial organizations aren’t as infrastructural as we might think.

Offering the example of Amazon suing Alexaholic (for remixing Alexa’s data), he tells us that APIs are not “a commons of goodies to be built on top of for fun and profit, like open source software.” Here are his “six basic truths of free APIs:”

1. Free APIs are not a god-given right. Businesses offer them for their own self-interested reasons. If you build on top of the API but aren’t delivering the value for the business that provides the API, your use of the API will probably go away.
2. If you build your own business on top of an API, you need a contractual relationship to ensure the service doesn’t get taken away from you. These generally cost money.
3. If you find a way to get something from a site that isn’t explicitly offered as something for you to build on, your use of it will probably be fought unless you’re delivering value as in (1).
4. The provider of your API will find it easier to implement services on top of their API than you will. Therefore you have to add something of your own that’s difficult to replicate, something beyond a simple UI tweak or a feature like “search”, so that the business that provides the API doesn’t simply compete with you when you look like you’re succeeding.
5. For these reasons, free APIs are a very poor substitute for having the source and the data and thus owning and controlling every piece of your application.
6. For these reasons, there’s no such thing as a free API if you’re looking to build a business.

Surely Torkington means free as in free beer APIs, as many of the problems he cites arise because the data and services are not free as in free speech. And this leads to two things I want us to be aware of in libraries: giving over our data to companies that lock it up behind licenses that restrict how it can be reused and remixed is dangerous; and we have an opportunity — some would say responsibility — to build out some of that information infrastructure and deliver free as in free speech APIs and data for all to use.

remixability, mashups, self interest, public good, api, apis, free, free beer, free speech,

Quite a while ago now, stepinrazor asked people to do some self-censorhip in a post in the Flickr Ideas forum. FlyButtafly quickly joined the discussion, noting that she’d encountered some material she found offensive in pictures from other Flickr members: “as I’m going through the pictures, one shows up of a protestor holding a sign with a vulgar statement on it.” Though she refused to identify what she saw that was offensive, she did note in a later post that she “would never take my child to a pro-abortion rally.”

Striatic was quick to point out that “it probably wasn’t a pro-abortion rally, it was a likely a pro-choice rally.” Adding:

it’s easy to respect your opinion .. and i’ll try not to mislable your morality .. but even if you think that pro-choice is a corrupt morality {it isn’t beyond debate}, could you please not mis-represent it?

Meanwhile, in a somewhat different thread of the same conversation, GustavoG asked:

But was it offensive? To whom? To what culture? To what subculture within what culture?

Are you aware of the fact that your own icon would be offensive in the Muslim world? Your face can be seen, without any attempt to cover it. Shouldn’t you be forced to label your icon as “may offend”, and therefore be made invisible to the public?

I’ve been trying to synthesize the resulting discussion into a short, meaningful post for over a year now, but what appeared in the Flickr forum was so rich that I’ve now simply decided to quote the best bits of it and let them stand on their own.

FlyButtafly, who had started the thread with a specific question shot back at GustavoG’s expansion of the issue:

your comment about the muslim culture was completely extraneous. It has nothing to do with the issue at hand. We aren’t talking about inane issues that have to do with specific religions, otherwise we could go on to say that you can’t post pictures of pigs because of Jews and muslims and seventh-day adventists, etc., or that we couldn’t show a steak because of hindus. C’mon, let’s please stay on topic.

Quas responded:

I think that was exactly Gustavo’s point, and I think it’s a good one. Obviously Flickr isn’t going to censor pig/steak photos, yet these could be considered offensive to some.

Any photo could be potentially offensive to any viewer [OK, an exaggeration, but bear with me] — it’s just a matter of drawing the line somewhere. And since everyone will draw the line at a slightly different place, it’s going to be very hard (or impossible) to please everyone.

FlyButtafly narrowed the question:

I don’t think anyone disagrees with what is pornographic. Or why don’t we just say “nudity” that way there’s no confusion? Is it offensive to state what is in the picture? And to be able to shield myself from that type of image?

fallsroad re-expanded it:

That statement has been the center of court cases, debates, and regulation since the beginning of the Republic, and will be until long after we are all dust.

Again, FlyButtafly:

It is asking if we could have an explicit “nudity/pornography” and “obscenity/vulgarity” flag. There’s not any ambiguousness about those flags. At least not for the pornography one. Here, if anyone doesn’t understand what that word means: Someone with little or no clothes on.

To which ///Alex leapt:

Someone with little or no clothes on… != Pornography

Is this a pornographic photo?

…And GustavoG added:

you’re asking for the built-in ability to filter the world according to what offends you, and even by one or two of the things that offend you. Let’s assume this is done — and then someone requests another set of flags and buttons and whatnot, this time to filter out some other kind content that you would not find to be objectionable. For example, a steak. (I’m assuming you don’t object to steaks.) What would you say then — “yes, the system should support filtering steaks out”? Or “”o, there is no need for that functionality because I don’t think steaks are objectionable“?

If the steak filter is implemented, next time someone will require yet another filter — e.g. ”I’m offended by improper punctuation, photos with title, comment or notes with improper punctuation should be filtered out“.

Once everybody is happy seeing the three or four remaining non-objectionable photos, how many flags, filters and buttons will be there?

Accusing people of bigotry is easy – one just has to type the words. Please consider what it means, if you think that what offends you should be implemented globally, but what offends others needn’t.

Finally, FlyButtafly:

Maybe I should have stated it this way: In the UNITED STATES OF AMERICA we have certain laws that have been approved by the majority for centuries about what should be allowed in the public square. If this were not true, then we would not have such things as indecency laws, we wouldn’t have a ratings system, and anyone could pretty much get away with anything.

Fallsroad quickly pointed out FlyButtafly’s concerns are matter of great public debate. For my part, I took issue with the suggestion that morality laws of any sort “have been approved by the majority for centuries” in the US.

Censorship became a matter of federal interest in the late 1800s as a result of agitating by Anthony Comstock who burned 15 tons of books in his crusade against perceived obscenity and immorality. Richard Zacks’ An Underground Education reports that Comstock’s furor was a result of his compulsive feelings of desire and self stimulation that accompanied the sight of such materials.

J. Edgar Hoover followed Comstock as America’s top obscenity cop, ordering his agents to deliver confiscated materials directly to his office where it would be placed in a vault accessible only to Hoover and a close friend (also from Zacks). But Hoover and the FBI found themselves on the losing side of a number of First Amendment decisions when the government tried to shut down Reuben Sturman’s publishing enterprise — a story well told in Eric Schlosser’s Reefer Madness.

It’s worth remembering that Last Tango in Paris, with Marlon Brando and Maria Schneider, was rated X when first released in 1973, the same year the popular press coined the term “porno chic” and Deep Throat and Behind the Green Door were playing in mainstream theaters.

The current state of obscenity laws is best credited to (failed banker and convicted felon) Charles Keating, who agitated tirelessly for the government to thoroughly regulate the publishing industry while turning a blind eye toward banking. His 1965 film, Perversion for Profit, attempted to link pornography to Communism and the decline of western civilization. The perils of other people’s moral bankruptcy, it would seem, outweighed the risk of Keating’s own business bankruptcy. Though many argue that it was a moral bankruptcy of a different sort, the latter resulted multiyear depression in large part brought on by the savings and loan scandal and precipitated by Keating’s felonious financial fraud.

The Reagan administration tried to strike out obscenity, but failed to establish the case that the state’s interest (however conflicted) in preventing adults from viewing their own choice of materials was superior to the First Amendment’s constitutional prohibition of state censorship.

In short, we Americans have never been unanimous in our feelings about obscenity. Indeed, the only decision that has withstood the test of time has been the our insistence on free speech.

Anthony Comstock, argument, Charles Keating, civil liberties, community standards, cultural imperialism, first amendment, flickr, free speech, freedom, J. Edgar Hoover, may offend, moral superiority, obscenity, porn, pornography

My feelings on the Flag Burning Desecration Amendment should have been clear from my Flag Day story. Still, let me offer the t-shirts above as confirmation.

america, burn, citizenship, civil liberties, civil liberty, first amendment, flag burning, flag desecration, flag desecration amendment, free speech, liberty, patriot, patriotism, rights

I caught the following story on NPR’s All Things Considered (RealAudio stream) last night:

New York is known for its vibrant nightlife, yet in many bars and restaurants it’s illegal to dance. Now, a law professor is challenging the “Cabaret Laws,” claiming they violate a dancer’s right of free expression. The city says dancing by patrons is not a protected right — and can prove it. (link added)

This was a big surprise to me, and a bigger surprise to learn that it’s not just some blue law. It turns out that bar owners get fined thousands of dollars for allowing people to dance, or even “move rhythmically” to music. Surprisingly, there are only 316 places to legally dance in Manhattan.

Amusingly — in that circle of life sort of way — Lynne Taylor-Corbett, choreographer for Footloose, is among the challengers. She can’t believe the fact that the city she claims to have given birth to break dancing and hip hop should restrict dance only to bars that have a cabaret license. The license is the result of 1926 ordinance that decried jazz clubs for their “wild strangers” and “foolish natives,” according to the story.

The suit is being handled by NYU Law professor Paul Chevigny, an occasional tap dancer who gained standing on these matters by successfully challenging an earlier law that blocked many forms of live music in 1988. That doesn’t mean the city is rolling over on this. They’re fighting back, and all parties are looking to see how the courts answer the city’s motion to dismiss.

tags: blue laws, cabaret, cabaret license, dance, dancing, first ammendment, foolish natives, footloose, free expression, free speech, jazz clubs, law, legal challenge, license, lynne taylor-corbett, manhattan, new york, new york city, new york new york, newyork, ny ny, nyc, nyny, paul chevigny, rights, wild strangers

Wendy Seltzer alerts us to the Delaware Supreme Court’s ruling last week in Cahill v. Doe, a case that tested our rights to anonymity online, as well as the standard for judging defamation.

As it turns out, the court decided against the plaintiff, a city councilman, and protected the identity of “Proud Citizen,” who the councilman accused of posting defamatory remarks in an online forum. Further, it also decided that the context of the remarks “a chatroom filled with invective and personal opinion” are “not a source of facts or data upon which a reasonable person would rely.”

In short, as Seltzer points out, the ruling hold readers responsible for seeing materials in the context they’re presented in:

The standard empowers a wide range of bloggers’ speech. Because readers can use context to help them differentiate opinions from statements of fact, bloggers are freer to publish their choice of opinionated gossip or citizen journalism. And thanks to courts like Cahill and Dendrite, they can do so using pseudonyms or their real names.

tags: blogger, bloggers, blogging, blogosphere, blogs, cahill, cahill v. doe, chatroom, citizen journalism, city councilman, context, delaware, delaware supreme court, first amendment, free speech, freedom of speech, liability, media, media landscape, online forum, proud citizen, pseudonyms, real names, wendy seltzer

Copyfight is pointing to the EFF’s new Legal Guide for Bloggers. Most of the content is about liability, but it also addresses issues of access and privilege that are generally granted to journalists, election law, and labor law. From the introduction:

Whether you’re a newly minted blogger or a relative old-timer, you’ve been seeing more and more stories pop up every day about bloggers getting in trouble for what they post.

Like all journalists and publishers, bloggers sometimes publish information that other people don’t want published. You might, for example, publish something that someone considers defamatory, republish an AP news story that’s under copyright, or write a lengthy piece detailing the alleged crimes of a candidate for public office.

The difference between you and the reporter at your local newspaper is that in many cases, you may not have the benefit of training or resources to help you determine whether what you’re doing is legal. And on top of that, sometimes knowing the law doesn’t help – in many cases it was written for traditional journalists, and the courts haven’t yet decided how it applies to bloggers.

But here’s the important part: None of this should stop you from blogging. Freedom of speech is the foundation of a functioning democracy, and Internet bullies shouldn’t use the law to stifle legitimate free expression. That’s why EFF created this guide, compiling a number of FAQs designed to help you understand your rights and, if necessary, defend your freedom.

To be clear, this guide isn’t a substitute for, nor does it constitute, legal advice. Only an attorney who knows the details of your particular situation can provide the kind of advice you need if you’re being threatened with a lawsuit. The goal here is to give you a basic roadmap to the legal issues you may confront as a blogger, to let you know you have rights, and to encourage you to blog freely with the knowledge that your legitimate speech is protected.

Continue reading the EFF’s Legal Guide For Bloggers…

Technorati Tags: blogger, bloggers, blogging, copyright, court, eff, free expression, free speech, freedom, law, legal, legal guide, liability, stifle