Developer News OpenOffice 3.2 Lands Amid Critical Changes Red Hat, IBM Firmly in KVM Virtualization Camp Red Hat Talks Up Open Source Cloud Plans

America Online and Free Speech: An Oxymoron?

By Richard Wiggins

merica Online may not realize it, but they’ve created quite a pickle for themselves by failing to enunciate and follow a clear, consistent policy as to what their customers may say and publish. Consider recent examples:

• On July 15, 1997, AOL announced its contract with self-styled Internet gossip columnist Matt Drudge. AOL bragged that they would give new visibility to Drudge’s gossipy "journalism," saying he’d have 160 times more readers than before. Less than a month later, on August 11, Drudge’s report claimed that White House aide Sidney Blumenthal had a history of wife abuse. There was one minor problem: there was no credible evidence that any spousal abuse had occurred in the Blumenthal household. Within 24 hours Drudge had retracted his comments. Not satisfied, the Blumenthals sued Drudge and AOL for $30 million.
• On September 12, 1997, America Online removed a web site that featured the essays and art of two serial killers: Keith Hunter Jesperson, convicted of three murders in the northwestern U.S., and Danny Rolling, convicted of five murders in Florida. A Florida author named Sondra London had posted the pages. AOL said that they would remove any pages with similar content from their site.

Although I have not seen the serial killer site, press reports depict material that was indeed truly offensive. According to the Associated Press, London, who had been engaged to Rolling, included Jesperson’s "self-start serial killer kit" as well as his essay "My Piles of Garbage," comparing his murder victims to roadside litter left by passing truckers.

There was no dearth of public figures decrying the site and urging AOL to remove the material. Governor Jim Geringer of Wyoming, where some of Jesperson’s crimes took place, wrote a letter to AOL president Steve Case demanding that the site be shut down. Marc Klaas, whose daughter was brutally slain in an unrelated case, declared "America Online is hiding behind freedom of speech in allowing this monster to have a public forum." Klaas urged a boycott of AOL.

It didn’t take long for AOL to respond to the pressure. AOL spokesperson Tricia Primrose on September 11 that "We came to the determination that the material on the site is offensive and objectionable and not something with which we wish to be associated," and promised its removal. On Friday, Primrose declared "We believe in a person’s right to speak, but we don’t believe individuals have a right to force us to associate with that speech." Did AOL consciously hire someone named Primrose to utter such Orwellian claptrap?

Does AOL Censor Content, or Doesn’t It?

The Drudge case is especially vexing for AOL. AOL’s press release could hardly contain their excitement upon hiring Drudge:

Anyone familiar with the story of Winchell realizes his name hardly evokes confidence in a writer’s credibility. Nonetheless, AOL not only praised Drudge, but even associated itself with his style of content: AOL Networks President and CEO Bob Pittman gushed:

After lavishing praise on Drudge and explaining how similar his "cutting edge" style is to their own, AOL now must go before the courts and explain that Drudge was not really their employee or agent. Never mind that Drudge’s sole source of income was his AOL royalty check. Never mind that in the rush to "channelize" AOL, the service’s content has become much more like television programming. And, just as TV news has rushed towards tabloid-style reportage, AOL seemed to embrace Drudge’s "I have no editors" mien.

This is a very difficult position for AOL to take – that it can hire someone to write content for them, and absolve itself of all liability for the content in that column. AOL may cite the "Good Samaritan" provision of the Telecommunications Act of 1996, which says "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The goal of this provision is laudable: an ISP shouldn’t be responsible if an article carried on a Usenet News feed, or held in a caching Web server and delivered over the ISP’s wires, is libelous or violates the law. The question in this case may turn on AOL’s relationship with Drudge: was he really an independent content source, like the AP, or ABC News, or any of dozens of other such sources? Or, given AOL’s claim that they would increase his visibility 160 times, wasn’t he more a captive part of AOL’s internal content machine?

AOL might claim that they in fact didn’t censor or remove Drudge’s content – that Drudge himself issued the retraction. If true, this would allow them to claim an arm’s-length relationship with content providers. But if AOL claims no control over content it pays for, how can AOL then claim that it has less control over the content of its members? Members pay AOL for Web page space; surely they are more independent publishers than Drudge, not less.

The curiosity is that AOL can disavow any control over content – whether provided by customers of the service, or paid contractors of the service, while still forcing removal of content once they find it offensive or potentially a legal problem. Which is it – does AOL have responsibility for content, and therefore the right to police it, or does it not?