Protest Speech and the Digital Revolution

Jay Leiderman
By: Jay Leiderman
February 01 2017

Protest Speech and the Digital Revolution

The unpolished draft of the op-ed written for the Guardian

There is no weapon on the planet more powerful than speech.  In recent years, the digital revolution has led to new and unique ways for people to express themselves.  Speech has flourished around the globe, and brought the world closer together.  As a lawyer and as someone who promotes the advancement of individual liberties, I was fascinated by the advent of online speech, and then the advent of online protest.

The power of speech – a microphone and brass knuckles

While affixing your e-signature to an online petition is a new and somewhat direct way to “petition your government for a redress of grievances,” I am most concerned with advocating for more immediate and effective manners of protest.   Accordingly, I was quite interested in December 2010 when the hacktivist collective Anonymous took to the internet to voice their displeasure with PayPal over their part in the banking blockade of Wikileaks.  A reported 10,000 protestors around the world voiced their displeasure with PayPal by using a protest method known as DDoS.  DDoS is the functional equivalent of hitting the refresh button on a computer repeatedly.  With enough people refreshing enough times, the site is flooded with traffic and slowed or even temporarily knocked offline.  No damage is done to the site or backing computer system, and when the protest is over, the site resumes business as usual.

This is not “hacking.”  It is protest.  It is speech.

True, customers of the site are temporarily inconvenienced, but democracy is often messy and inconvenient. Moreover, to hear the voice of your fellow citizen for a moment should always be worth slowing down for.  Exposure to new or differing views enriches us all.  Such was the case with the 2010 PayPal DDoS protest.

Or, at least, it was until the United States Government decided to serve 42 warrants and indict 14 protesters.  While protest crimes have typically been seen as tantamount to nuisance type behavior, like trespassing or loitering, these were different.  The 14 PayPal defendants, some of whom were teenagers when the protest occurred, find themselves looking at 15 years in federal prison.  For exercising their free speech rights.  For redressing their grievances to PayPal, a major corporation.  For standing up for what they believed was right.  Instead of facing a $50 fine, like one would face for traditional protest crimes like a sit-in, the PayPal defendant’s freedoms are in real jeopardy.

This is not “hacking.”  It is protest.  It is speech.

To address this situation, there was some more traditional, yet still-modern speech aimed at the White House.  An online a petition has been launched asking that DDoS be treated as speech.  I wholeheartedly support this concept.  Being mindful that all protest must be reasonable in time, place and manner, I believe that there is room in cyberspace, indeed in the world, for this type of protest activity.

Free Speech is seldom pretty, but it is essential to an open and free society

The example used above, that of the PayPal protest, is again apt to analogize why DDoS is speech.  Just like civil rights protestors who went to the Woolworth’s lunch counter in the segregated American South of the 1960’s to seek a simple meal, people went to PayPal to express their desire to make a donation to WikiLeaks.  In Woolworth’s the protestors made plain their goal: “If you serve me a meal, I will eat it, pay for it and then I will leave.”  This simple concept was lost on the Jim Crow South.  And so protest became necessary.  Certainly this situation is a lesser evil.  No one suggests it is not.  But the analogy is apt nonetheless.  Thousands of PayPal protestors said, via their protest speech in DDoS form: “I want to make a donation to WikiLeaks, I’ll take up my bandwidth to do that, then I’ll leave, you’ll make money, I’ll feel fulfilled, everyone wins.”  But alas, PayPal, and their parent company eBay were not in the win-win business.  They were in the censorship business.  Censorship is not something Anonymous suffers lightly.  PayPal will take donations for the Ku Klux Klan, other racist and questionable organizations, but they won’t process donations for WikiLeaks.  So it came to pass that thousands of displeased people around the globe voiced their displeasure via a DDoS protest.   All the PayPal protesters did was take up some bandwidth.  PayPal claimed – almost as a cry of victory – that their site never even went offline.  In that example, DDoS was used as an almost pure form of protest expression.  Accordingly, it was speech, it should absolutely be recognized as such and protected as such.   The law should be changed.

Anonymous. Headless. Leaderless. The hive.

The Computer Fraud and Abuse Act is being used to stifle new and creative forms of online expression.  This type of harmless creative protest should be encouraged.  Our nation was built upon the principles of free speech.  If the founders of this great nation saw the abuses of the laws as applied to these minor protests I think they would be shocked and offended.

The Government would seek to restrict speech if left to their own devices

Our best and brightest should be encouraged to find new methods of expression.  Direct actions in protest should be encouraged, not stifled.  The dawning of the digital age should be seen as an opportunity to expand our knowledge and collectively work together to enhance our communication.  Government should have the greatest interest in promoting speech, especially unpopular speech.  If new and contrary methods of speech became mainstream, they would need no protection.  The majority, the corporatocracy and the oligarchs are, no doubt, displeased by dissent.  Such is the nature of dissent.  When the world becomes perfect, no one will ever have need to protest.  Until then, the Government should never be used to stifle the new and creative – not to mention effective – methods of speech and expression.   Since the PayPal prosecution there has been no DDoS protests on that scale.  Speech has been chilled.

Supreme Court Justice William O. Douglas said: “Restriction of free thought and free speech is the most dangerous of all subversions. It is the one un-American act that could most easily defeat us.”  Toward that end, let’s begin a conversation about carving out some room for DDoS to be seen as protest speech deserving of First Amendment protection.

2 thoughts on “Protest Speech and the Digital Revolution

  1. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”

    –West Virginia State Board v Barnette. 1943– Court held that students could not be forced to salute the American flag and say the Pledge of Allegiance in school.

    “The Court strikes down the Alabama statute because the State wished to ‘characterize prayer as a favored practice.’. It would come as much of a shock to those who drafted the Bill of Rights as it will to a large number of thoughtful Americans today to learn that the Constitution, as construed by the majority, prohibits the Alabama Legislature from ‘endorsing’ prayer.

    George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of ‘public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.’ History must judge whether it was the Father of his Country in 1789, or a majority of the Court today, which has strayed from the meaning of the Establishment Clause.”–

    Wallace v Jaffree 1983 dissenting opinion by Rehnquist in which the Court held that an Alabama law authorizing teachers to set aside one minute at the start of each day for a moment of “meditation or voluntary prayer” was unconstitutional.

    “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind . . . Three generations of imbeciles are enough.”

    Buck v Bell 1927–an infamous one where the Court by an 8-1 majority held that a state statute permitting compulsory sterilization of the unfit, including the intellectually disabled should continue “for the protection and health of the state” opinion written by Oliver Wendell Holmes

    “These decisions give support to a current mistaken view of the Constitution and the constitutional function of this court. This view, in short, is that every major social ill in this country can find its cure in some constitutional principle and that this court should take the lead in promoting reform when other branches of government fail to act. The Constitution is not a panacea for every blot upon the public welfare nor should this court, ordained as a judicial body, be thought of as a general haven of reform movements.”

    Justice Harlan II Dissenting in Reynolds v. Sims, 377 U.S. 533, 589

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