On Monday, Senator Joe Lieberman wrote to Google's CEO Eric Schmidt, asking the company to remove content produced by Islamist terrorist organizations from YouTube. The May 19 letter pointed out that many videos posted by radical groups violate YouTube's own terms of service because they contain "graphic or gratiuitious violence." But Sen. Lieberman went much further -- he complained that YouTube's terms of service do not prohibit the posting of any content "that can be readily identified as produced by Al-Qaeda or another [Foreign Terrorist Organization]."
Sen. Lieberman maintained that YouTube can easily identify this content because of the logos used by media outfits linked to Al-Qaeda and allied organizations. I hadn't realized that such logos existed, but sure enough I was able to dig up a few examples by consulting a recent report prepared by the Senate Committee on Homeland Security & Government Affairs (chaired by Lieberman) and searching for a few minutes on YouTube:
Not that this is necessarily a legal issue, at least not yet. Sen. Lieberman is free to ask YouTube to engage in viewpoint censorship because that's all it is -- a request. YouTube is a private actor and it can choose what to put in its terms of service without concern for the First Amendment. Certainly, if Congress passed a law that compelled YouTube to prohibit all speech originating from specified (or worse, all) radical Islamist organizations, rather than just material fitting within the few narrow categories recognized by the Supreme Court as unprotected speech (e.g., threats, direct incitement to imminent violence, so-called "fighting words"), then YouTube would have a good legal argument that its First Amendment rights as a publisher were being violated. (Lawyers: note the odd tension here with section 230 of the Communications Decency Act.) Of course, any U.S. citizen whose speech was taken down because of a hypothetical compelled change to YouTube's terms of service -- say, because they actually were involved with such a group or alternatively because they stuck an Islamist logo (see above) on a video of their cat flushing the toilet -- would have an even better First Amendment argument. Perhaps because of these potential legal difficulties, a bill introduced in the House of Representatives last year only recommended that video-hosting websites take steps to keep "enemy propoganda" off their sites. (The bill is stuck in the House Subcommittee on Telecommunications and the Internet and has not become law.)
My problem with Sen. Lieberman's request (and the proposed bill) lies elsewhere -- on grounds of simple logical consistency and concern for the U.S.'s legitimacy on the international stage. Now, I'm not sure about Sen. Lieberman's history when it comes to freedom of speech or human rights -- maybe he's never been a big champion of these values and so this latest foray is no great deviation from the norm. But, anyone who claims to be fighting "the terrorists" should be wary of this kind of censorship. Isn't the idea that those big, bad, scary terrorists "hate us for our freedoms" and oppose our (supposedly) enlightened way of life and open form of government? Doesn't our current government routinely accuse radical Islamists of being intolerant of opposing viewpoints and disrespectful of human rights? It undercuts our country's position in the world when we turn around and exhibit a lack of tolerance and a willingess to curtail free expression (recognized as a human right in the International Covenant on Civil and Political Rights). To be sure, Sen. Lieberman's gambit is a relatively benign instance of this sadly persistent ironic reversal.
I know I said this is not about law, but this is one of those (relatively) rare intances where the voice of the law is eloquent. In the words of Oliver Wendell Holmes, Jr. (who is pretty much my hero):
[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.
Abrams v. United States, 250 U.S. 616 (1919) (Holmes, J., dissenting).