--- Michael Snow <wikipedia(a)earthlink.net> wrote:
Chris made a passing argument earlier that Wikipedia
is legally a
public
forum and therefore required to allow freedom of speech under the
First
Amendment. Since he repeats the argument here, I felt a rebuttal
was
necessary. Apologies in advance for focusing on US law and
disregarding
relevant laws elsewhere.
Discussion open.
The legal concept of a "public forum"
applies specifically to
government
property. In particular, it covers property like public streets,
sidewalks, and parks that have traditionally been used for civic
assembly and discussion.
Ok.
Wikipedia as a website is operated by a
private
nonprofit organization, and Wikipedia as a community is a
collection of
private individuals. The public can participate, and nearly all
activity
happens "in public", but none of that makes this a public forum in
a
legal sense, because it's not owned by the public.
Granted, in a purely legal sense, the W is a private not-for-profit
organization.
The law in some states, notably California, protects a
certain
amount of
free speech on some private property, specifically the ability to
petition or solicit individuals in shopping centers that are open
to the
general public. Maybe this is what gave Chris the idea that
Wikipedia is
a public forum.
To a degree.
But even if this principle applied to speech on
Wikipedia, I highly doubt it would cover anything resembling
hate-speech.
You're probably right.
Wikipedia currently is somewhat of a forum for speech,
but it's not
legally obligated to provide a forum, or to remain open to the
public,
or to permit unrestricted free speech. The website could shut down
tomorrow, or convert to read-only, thus stopping all speech.
Likewise the government can close a public park temporarily for
"renovation" or permanently for "budget considerations".
It's also not legally obligated to be successful and build an
international encyclopedia.
To the
extent that anyone has a "right to free speech" here, it consists
of the
rights licensed to everyone under the GFDL, in conjunction with the
ability to fork the content.
There is one more concept to consider: the Wiki. A wiki is, by its
very nature, a cyber-place where speech is unusally unrestricted.
This creates a precedence (however tenuous) of allowing
near-unfettered speech. This concept is one of the reasons behind
this project's successes, and dear to many a contributor's heart.
Indeed, it is one of the safeties that the body of work will be
balanced, since all people, from all walks of life, with differing
opinions and points of view, experiences, and levels of knowledge can
participate in the process.
Should WP become an exclusive card-carrying members-only club, I
contend that it would fail rather quickly.
>For
example, people have a right to advertise but we do not allow
advertisements on
Wikipedia.
Actually they do. Others have a right to remove such advertising.
They do not have a right to prohibit others from removing the
advertising.
Please do not confuse having the ability to do something on
Wikipedia
with having the right to do it. Wikipedia has every right to
prohibit
advertising, or removal of advertising, depending on what policy
the
Wikipedia community wants to follow with respect to advertising.
Same
goes for hate-speech. The question is about what policy we want,
and how
to define it.
It is not illegal to post commercial speech on wikipedia. You cannot
call the police, sue for damages, etc. Since no legislation exists,
it is retained as a right by the People.
There is no mandate from Jimbo that commercial speech will never be
used on W. It has even been tried by him. I will refer you to the
Amazon.com book referral program that was tried earlier this year. It
was discontinued partly because of feedback from users, and partly
from lack of financial interest.
Just a general reminder: editing Wikipedia is a
privilege, not a
right.
The privilege is granted liberally, but it can be restricted or
taken
away, though that will usually happen only in extreme
circumstances.
Likewise there are laws governing speech in public places, that,
under extreme circumstances, may be used to remove certain
individuals from the population. (Try yelling "There's a bomb!" in
the street in front of an airport in the US.)
While I agree that conceptually editing W is a priviledge, it is and
has been so widely granted to all that it would be possible to argue
that to restrict an individual's right from participation would
unfairly restrict their ability to contribute to a body of knowledge
that is meant to benefit mankind, assuming that this individual had
maintained a civil demeanor. Past conduct has demonstrated indeed
demonstrates that barring uncivility, all people are allowed access
to view and edit the W, as long as they agree to the terms of the
GFDL and respect the work of other contributors.
=====
Chris Mahan
818.943.1850 cell
chris_mahan(a)yahoo.com
chris.mahan(a)gmail.com
http://www.christophermahan.com/
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