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Free Internet Speech and Virtual Harm: The Biomatrix case An in-process version for the computingcases.org website Free Speech & Biomatrix Case Version 6: Started 3/15/05 by Bill Frey

(All rights reserved. For classroom use only. Please do not cite without permission.)

©Charles Huff, William J. Frey, & José Cruz-Cruz

(Presented to Sociedad para la Gerencia de Recursos Humanos, October 7, 2004 and Information Systems Students, November 4, 2004)

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Abstract
Biomatrix manufactures a medical product called Synvisc, a lubricant injected into the knee to take the place of natural lubricants that disappear with age. From April 1999 to August 2000, a series of messages (16,000 in all) highly critical of Biomatrix were posted on a Yahoo bulletin board. These messages, sent by three individuals operating under 23 pseudonyms, make a series of critical claims about Biomatrix officials, employees, financial status, and products. Biomatrix vigorously denied each of these claims. Yet the quality and quantity of this information may have had negative effects on the financial well being of the company. During the period in which the messages appeared in Yahoo, Biomatrix stock dropped from $35 per share to $21. In response, Biomatrix petitioned the court to subpoena Yahoo to reveal the identities of the persons sending the messages. Yahoo complied identifying Raymond Costanzo, Richard Costanzo, and Ephraim Morris as the authors of the messages. In a summary judgement, all three were found guilty of defamation.

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Historical Narrative
Introduction The Internet has changed how we communicate. It assembles audiences of thousands—even millions—with little or no cost. A few individuals were able to use it to inform the world of genocide in the former Yugoslavian republics. But the Internet also provides a vast audience of ready listeners to the speech of those with more questionable intentions. As we will see below, short selling is a business practice where investors profit from the decline in stock value. If the Internet could assemble audiences interested in information about the financial status of a company and insulate those who would provide negative and, perhaps, false information in this regard, then the Internet could prove most useful for short selling that company’s stock. As we will see, although cyber speech is different from real world speech, it still brings about results that “spill out” into the real world. But, since cyberspace lacks the “clear structures of responsibility” present in the real world, assigning responsibility for these real world “spill-overs” becomes most difficult. (Lessig, 172). The Biomatrix case raises several interesting ethical issues: 1. What is cyber smear and how should companies like Biomatrix respond when they become targets? 2. What is flaming? At what point, if ever, does flaming become defamation? 3. What is short selling? How can it be instrumented by cyber space? Is short selling an immoral practice or an acceptable convention among businesspersons? 4. What are the responsibilities (legal and moral) of Internet Service Providers (ISPs) for the information posted in the discussion forums they provide? 5. Do lawsuits that uncover the identities of individuals operating anonymously in cyber space violate free speech or privacy rights? 6. How responsible are users for examining carefully and critically the information they come across in cyber space? To what extent are they innocent victims of harms that result from false or slanderous information? In the following narrative, we will … 1. look at Biomatrix and its products, 2. detail the techniques used by cyber slanderers to attack a corporation and its top officials, 3. view sample messages posted by individuals convicted of cyber smear, 4. discuss the financial impacts of cyber smear, 5. follow the legal trail that led to a summary judgment of defamation against three individuals, including two former Biomatrix employees, and… 6. examine the role played by Yahoo, the ISP that provided the discussion forum in which the cyber smear took place.

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Biomatrix Profile Biomatrix manufactures a medical product called Synvisc, a lubricant injected into the knee to take the place of natural lubricants that disappear with age. Synvisc, developed in the late 1990’s, was designed to help patients who suffer from osteoarthritis, a condition that produces pain and immobility in the knee caused by the disappearance of natural lubricating fluids along with the deterioration of the cartilage that cushions the knee’s movement. As individuals age the natural chemical lubricants in the knee lose their elasticity. Synvisc is designed to reverse this process. Manufactured from from the comb of roosters, it mimics the chemical structure and properties of the knee’s natural lubricants. Injected into the knee in a treatment called visco supplementation, it provides patients immediate though temporary relief from osteoarthritis. In many cases it has helped postpone difficult and painful knee surgery. Cybersmear From April 1999 to August 2000, three individuals posted over 16,000 messages critical of Biomatrix in a finance discussion forum provided by Internet Service Provider, Yahoo. Using 23 pseudonyms, they made four, unsubstantiated, critical claims: 1. 2. 3. 4. that Synvisc produces serious side effects, that competitors offered better products, that Biomatrix had covered up negative financial and product information, and that sexual improprieties and barbarous cruelties had been committed by top level Biomatrix employees.

All of these claims were successfully refuted. Yet this false information may have had a negative impact on the financial well being of the company. During the period in which the messages appeared in Yahoo, Biomatrix stock dropped from $35 to $21 per share. We will look more closely into the issue of whether the messages by themselves produced this harm. Biomatrix believed this and took legal action to stop the damage. They initiated brought a John Doe suit that asked the court to subpoena Yahoo to reveal the real identities of the senders. Yahoo compiled revealing two former Biomatrix employees, Raymond Costanzo and Ephraim Morris. A third participant, Richard Costanzo the twin brother of Raymond, was also identified. These three, who called themselves the BMX (Biomatrix) Police, failed to substantiate the claims they made in their 16,000 messages. Biomatrix petitioned the court for a summary judgment. On August 2, 2000, each was found guilty of defamation. Technique The structure of the Internet made this incident possible. First, the Internet provides individuals with a cheap, ready-made tool for reaching a large, specialized, world-wide audience. It “instruments” one-many communication (one person is able to speak to

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many persons) by providing forums through which individual speakers can circumvent the expensive mass media and speak directly to millions dispersed world-wide. It facilitates this communication in a variety of ways. Web pages appear in an environment potentially accessible to millions. Massive search engines provided by Internet portals such as Yahoo and Google place those looking for specific information in touch with those who provide it. (Google sends out spiders to search out and index new web pages and then provides a search engine that prioritizes these in terms of use-history.) The Internet also provides a vast number of discussion forums, virtual communities where like-minded individuals come together to share ideas, common interests, and joint projects. Yahoo provides just such an environment through its finance discussion forum. Here those interested in investing come together to share financial information. In a particular zone of the Yahoo discussion forum, those interested in financial information on Biomatrix came into direct contact with those who claimed to have it and were willing to share it. To understand another way in which the Internet and computers facilitated the events of this case, consider an impressive fact: three individuals were able to post 16,000 messages in the Yahoo discussion forum in such as way as to crowd out all other discussion. Such domination would be inconceivable in the real world mass media without huge expenditures. The Biomatrix Police used a series of simple techniques to produce these impressive results: • • First, they exploited Yahoo’s registration procedures by registering several times under different user names. In all they created twenty three pseudonyms under which they posted their messages. Second, they were able to crowd out speech from other participants by exploiting Yahoo’s procedure for posting messages. Each new posting was placed at the top of the message string to which it belonged. The Biomatrix message string (the series of interrelated messages and replies that discussed the Biomatrix corporation) was quite long because of the large quantity of messages it contained, most of which was generated by the BMX Police. So by copying and reposting the same messages, the Biomatrix Police kept their messages at the top of the string and pushed other messages down to positions of less prominence. The BMX Police exploited yet another feature of Yahoo, anonymity. Singling out and targeting real world individuals is essential to holding them responsible. Anonymity, on the other hand, drives a wedge between the individual as the target of responsibility and that individual’s actions. This anonymity led the BMX Police to believe they could act with impunity. (Or rather it created the illusion that they could do so, for in fact, as we will see below, their Internet anonymity was limited by Yahoo data collecting procedures and established legal procedures.) But anonymity is a double-edged sword. It reduces our sense of individual responsibility and tempts us to act with impunity. But it also facilitates legitimate free speech by protecting those who would publicize sensitive information from retaliation by those who would cover it up.



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By exploiting these characteristics of the Yahoo discussion forum, the BMX Police appeared as many different individuals, working from distinct sources of information, all of whom had independently reached the same conclusion about Biomatrix, namely, that it was a poorly run company on the brink of financial ruin. Financial Impacts Biomatrix officials felt that these messages were producing financial and personal harm. The evidence for personal harm lies in messages like the one quoted above where two Biomatrix officials were personally accused of wrongful and criminal actions. The Biomatrix three were unable to provide any evidence to back up these claims when questioned during legal proceedings. But the claim for financial harm is more difficult to establish. Biomatrix stock dropped $21 during the period in which the messages appeared. There are other cases in which cyber smear has produced clear financial harm. Rumors appeared online that the Emulex Corporation was under investigation by the Security Exchange Commission. These turned out to be false but damaging: in sixteen short minutes, the value of Emulex stock dropped sixty-one dollars. On the other hand, the Biomatrix stock decline, while coinciding with the appearance of the BMX messages, took place over 16 months. It is probable that other factors also contributed to the decline. Biomatrix, itself, mentions three such reasons in the report it filed with the SEC. We add a fourth: 1. Biomatrix mentioned problems it was having in protecting its intellectual property. It cited patent violations as a factor that could affect its profitability. While it had initiated lawsuits to protect these patents, its financial health depended on the outcome of these suits. 2. Biomatrix also expressed concerns over the regulatory climate under which it and other biotechnology companies operated. Several new products were undergoing FDA approval, and the company’s financial health depended on the outcomes. 3. Biomatrix mentioned that they were defending themselves against different lawsuits. Of particular concern was a shareholder derivative suit. Interesting enough, Biomatrix itself, was being accused of short selling its stock, that is, of seeking to profit from a decline in its own stock value. Short selling is also a possible motive behind the activities of the Biomatrix Three. (We’ll look at the mechanics of short selling below.) 4. Considerable uncertainty also existed over the outcome of Genzyme’s friendly buyout of Biomatrix. This takeover, announced during the period in question, also contributed to the uncertainty concerning Biomatrix’s financial health and, perhaps, its decline in value. It is likely that the Yahoo postings affected Biomatrix stock. But other factors also contributed to this decline. This is an important issue. Can companies, like Biomatrix, point to clear financial harms like decline in stock value caused by false information to justify curtailing free speech in cyber space? Is it necessary to curtail speech to protect companies and individuals from defamation? Or is Mill right when he claims that the

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best antidote to false speech is not censorship, that is less speech, but more speech out of which true speech will eventually emerge and prevail? The Motives There are three possible motives that led the BMX three to post their message: revenge, short selling, and flaming. The first motive, revenge, follows from the fact that two were former Biomatrix employees. Under what circumstances did they leave the company? Were they mistreated? Did they feel that they had been mistreated? Were they fired? At this writing, these details are unknown. But we can say that cyber smear provides a ready means for those who would extract revenge for perceived injuries brought upon them by a former employer. The second motive, short selling, requires some explanation. Simply put, short selling is a method for profiting from a decline in the value of a given stock. At first blush, this seems rather difficult to understand since one usually profits from an increase in a stock’s value rather than a decrease. We present a formal explanation of short selling in the following quote from Zlotnick v. Tie Communications, 86 F.2nd 818-820 (3rd Cir. 1988): Where the traditional investor seeks to profit by trading a stock the value of which he expects to rise, the short seller seeks to profit by trading stocks which he expects to decline in value….Short selling is accomplished by selling stock which the investor does not yet own; normally this is done by borrowing shares from a broker at an agreed upon fee or rate of interest. At this point, the investor’s commitment to the buyer of the stock is complete; the buyer has his shares and the short seller his purchase price. The short seller is obligated, however, to buy an equivalent number of shares in order to return the borrowed shares. In theory, the short seller makes this covering purchase using the funds he received from selling the borrowed stock. Herein lies the short seller’s potential for profit: if the price of the stock declines after the short sale, he does not need all the funds to make his covering purchase; the short seller then pockets the difference. On the other hand, there is no limit to the short seller’s potential loss: if the price of the stock rises, so too does the short seller’s loss, and since there is no cap to the stock’s price, there is no limitation on the short seller’s risk. There is no time limit on this obligation to cover. Let’s break this down by considering how I can profit from 100 shares of stock X that I have borrowed from broker A. How to profit from short selling: 1. Borrow 100 shares of X from dealer A at T1 (say Monday, October 11, 2004). X is worth $10 a share at this time so 100 shares of are worth $1000.

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2. Immediately sell these 100 borrowed shares of X at its market value of $10 per share or $1000. This still occurs within time frame, T1. 3. Start spreading false rumors about X on the Internet. Post a message in a widely read online discussion forum Reregister, copy and repost this message under pseudonyms • By c_smear/c1_smear/c_smearrr/etc • All people who run corporation X are lying thieves OUT TO STEAL YOUR MONEY. They also DRESS FUNNY too. So SHUN THEM LIKE THE PLAGUE! 4. Lower the price of X to $9 a share. 5. Buy back the 100 shares of X at T2 at its new value of nine dollars a share for a total of nine hundred dollars. 6. Give the 100 shares of X back to dealer A. 7. Pocket the difference between the value of 100 shares X at T1 (one thousand dollars) and its value at T2 (nine hundred dollars). Congratulations! Short selling has just earned you a 100 dollars. 8. But there are two small problems. First, ISPs may be required to reveal your IP address under subpoena from the court. Second, defamation, specifically libel, is illegal. The third motive is that the Biomatrix Three considered the messages to be flames and therefore protected by Internet free speech and conventions. In other words, they considered their activity online perfectly acceptable given Internet conventions. They also considered the listeners responsible for evaluating the information they provided. If listeners were so ignorant of established Internet conventions that they took everything they read as literally true, the so much the worse for them. The Legal Trail Biomatrix, Balzas & Janet Denlinger (plaintiffs), initiated a John Doe lawsuit for defamation. Called “John Doe” because the targets’ real identities were unknown since they were operating under usernames and therefore anonymously. To prevail in such a lawsuit, the plaintiffs must show the court that they have a credible case, that is, a case strong enough to go to trial and not be summarily dismissed for lack of evidence. This they were able to do. The court then ordered Yahoo to reveal the real identities behind the BMX user names. These were Raymond Costanzo and Ehpraim Morris, former Biomatrix employees and Raymond’s twin brother, Richard Costanzo. With the real identities of the BMX Police revealed, Biomatrix was able to bring a defamation lawsuit against them. Each was asked to substantiate the claims he made about Biomatrix and its corporate officers. None was able to do so. Biomatrix asked for

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and was granted a summary judgment against the three. On January 26, 2000, all three were found guilty of defamation and ordered to stop posting further messages. Many did not view this, and other similar cases, as open and shut defamation cases. Of special importance to civil rights groups is the possibility that powerful corporations could use John Doe lawsuits to expose legitimate whistle blowers. This, in their opinions, represented a dangerous to legitimate free speech which could be curtailed by the very possibility (and hence threat) of retaliation. In a related case, two civil rights groups including ACLU, filed a third-party, friend of the court brief, an Amicus Curiae. This argument did not attempt to eliminate John Doe lawsuits so much as strike a better balance between plaintiffs and defendants in defamation lawsuits. This Amicus Curias added the following requirements for uncovering identities behind cyber space pseudonyms: 1. Provide notice to the potential defendant and allow him or her an opportunity to construct a defense 2. Require the plaintiff to specify the objectionable statements. 3. Review the complaint looking for a valid cause 4. Require that the plaintiff produce evidence for each claim 5. Balance the harms to both the plaintiff and defendant. That is, balance the harm produced by defamation to the plaintiff (produced by allowing the speech to continue) with the harm to the defendant of losing anonymity and thus free speech. Role of Internet Service Provider (ISP) Yahoo played two roles in this case. First, as an ISP they may bear some responsibility for the content of the messages posted on their boards. The key legal distinction is that between a publisher of information and a distributor of information. A publisher (think of a newspaper) presumably edits, selects, and evaluates the information it publishes; hence it bears partial responsibility for the content of the information and its impacts. A distributor of information (think of a newsstand operator) does not exercise this editorial discretion; he or she merely provides a place where the information is displayed and disseminated. Yahoo began by playing the role of the distributor of information. Citing free speech protection as a motive, they attempted to distance themselves from the information their users posted through various disclaimers presented to new users as they registered for access to Yahoo message boards. But this case (and others like it) combined with user and community complaints led Yahoo led them to rethink their policies. They have become more actively involved in monitoring the messages, using human readers and software filters to ferret out objectionable content. They also reaffirm their commitment to protect user privacy but clearly specify exceptional situations in which they will make users’ information available to others such as court ordered subpoenas stemming from John Doe defamation lawsuits. Should they be compelled to turn over user information, they promise first to notify users two week in advance. This summary provides an overview of the case. But we need to explore more of its complexity. In the following, we present a chronology, a discussion of ISP

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responsibility, and information from the poster point of view, the three individuals who posted the defamatory messages and called themselves the BXM police (BXM = Biomatrix).

Time Line Biomatrix Time Line
Date April 1999 through August 2000 April 1999 to July 2000 March 2000 June/July 2000 July 2000 8/3/2000 November 7, 2000 November 7, 2000 1/3/2001 Event Posting of anti-Biomatrix messages Actors Richard & Raymond Constanzo Ephraim Morris

Biomatrix Shares drop from 35 to 21 Announcement of Genzyme’s intention to buy Biomatrix for $245,000,000 Initiation of John Doe Lawsuit by Biomatrix

Plaintiffs: Biomatrix, Balazs & Denlinger Court subpoenas Yahoo for identities of Plaintiffs: Biomatrix, message posters (BXM police) Balazs & Denlinger Summary Judgment Against R & R Plaintiffs: Biomatrix, Constanzo & Morris who are found guilty of Balazs & Denlinger defamation SEC approval of Genzyme plan to purchase Biomatrix Biomatrix stock rises from $.19 to $19.94 Yahoo alters user policies

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Historical Documents
1. Sample Messages The best way to understand this case is to look at messages in question. Those supporting the Biomatrix Police would label these messages as unrefined but nevertheless important information for those considering investing in Biomatrix stock. Others would consider the messages to be cynical attempts to manipulate the stock market by spreading false and malicious rumors about a company’s financial health and the corruption of its top officials. We first look at the different usernames adopted by Costanzo, Costanzo and Morris. Legal documents filed by Biomatrix identified several usernames under which antiBiomatrix messages had appeared. The following list shows 12 of the 23 pseudonyms used: cd_438; cd_43eight; cd_43eightt; rvcrvcrvc_1964; allergictochickenbits; dr_stedman; meddra_2000; meddra_2k; voteREP; voteREPLCN; vote_republican_2000; jenti_is_pro-life The messages themselves attacked the financial status of Biomatrix in a variety of ways: 1. Insider Knowledge. The BMX Police claimed insider knowledge to establish their credibility. They portrayed themselves as public servants devoted to revealing what Biomatrix was trying to cover up. Messages like the following claim insider knowledge of serious legal and ethical breaches committed by Biomatrix: “I am a former Biomatrix employee. I was employed there for over 6 years and reported DIRECTLY to the CEO, Dr. Balazs. While employed, I ran the AC Chemistry Lab which tested production batches of every product manufactured for a variety of CHEMICAL IMPURITITES and general conformance to established specifications. I had many other responsibilities as well…. When it comes to CREDIBILITY, consider the source.” 2. Unscrupulous Corporate Intentions. Messages posted by the BMX Police portrayed Biomatrix and Genzyme as unscrupulous companies who would stop at nothing to exploit and deceive outsiders and competitors. They tried to warn off potential investors with claims like the following: “The BMX Police are here to warn investors that corrupt financial institutions, along with the CRIMINAL Biomatrix and Genzyme management, are trying to STEAL YOUR MONEY by misleading investors with FALSE PROMISES of a ‘merger’ that is not even scheduled to happen.”

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“Genzyme and Biomatrix will be SUED FOR INVESTMENT FRAUD as soon the [sic] cancellation of this ‘merger’ is made public. Indeed Genzyme and Biomatrix management is SOOOOOOO [sic] nervous about the pending lawsuit that they will DELAY the announcement as long as possible…. But the BXM Police will remain to help guide investors through this difficult period. We will be posting FACTS and the TRUTH that Genzyme and Biomatrix are trying DESPERATELY to hide from their investors.” 3. Personal Attacks on Biomatrix Officials. The Biomatrix defamation suit specified several messages that personally attacked Biomatrix officials, especially top level management. Here are two claims made against high level Biomatrix officials. We have left out the names because of the highly personal nature of these accusations and because Costanzo, Costanzo and Morris failed to provide any backup to these accusations when questioned during legal proceedings: “Most of you that work there I’m sure already know how much [X] LOVES her women. Just don’t reject her offers or you’re out the door.” [Y] “is rumored to have been a NAZI SS doctor during World War II…torturing people and experimenting on them like animals.” 4. BMX Police as Whistle-Blowers. The Biomatrix Police presented themselves as social crusaders out to prevent Biomatrix from harming innocent investors. They claimed that Biomatrix would try to undermine their claims by accusing them of slander whereas in truth they (the BMX Police) were altruistically motivated individuals blowing the whistle on internal corporate wrongdoing. In the following, meddra_2k argues that what Biomatrix officials call slander is really whistle-blowing, i.e., the public revelation of true information designed to avoid a public harm: SLANDER = WHISTLE BLOWING By meddra_2k It all depends which side of the fence you’re on. The “pusher” sees the negative information, factual as it may be, as “slander” because they feel that anything that might make stock go down is inherently wrong. Thus, they call it ”slander”. The BMX Police know that the TRUTH, as unpleasant as it may be, is NEVER wrong. Indeed, it is our CIVIC DUTY to expose the TRUTH about Biomatrix, its products, and its stock. Thus, we call it “whistle blowing.” The readers of this board are free to evaluate both sides, and their motives for posting, and decide what they wish to do. Some will learn that this is a SCAM company peddling a SCAM product and run for the door. Others may not mind that it’s a SCAM company peddling a SCAM product as long as the stock price goes up. Certainly, there are enough unethical people out there that won’t mind investing in a SCAM that hurts people as long as they profit from it.

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This message board is FILLED with such people. Fortunately, it also has a few do-gooders that help balance the EVIL that men do. 5. Flaming. Flaming is a wide-spread practice on the Internet where individuals exchange messages making personal attacks on one another. A flame is aggressive, often obscene, and contains accusations addressed directly to the recipient that are exaggerated and often false. Flames come with their own set of conventions that serve to translate real world shouting matches into cyber world verbal contests. For example, putting words in capital letters is the cyber equivalent of shouting; we saw several examples of this “cyber shouting” in the messages quoted above. While many consider flaming acceptable practice, others find it abhorrent and have created spaces in the World Wide Web where is practice is prohibited. (See Huff and Winters) The following exchange took place between two participants in the Yahoo discussion forum who operated under the usernames, klangwon and cd_43_eighttt. cd_43_eighttt was one of the BMX three: Message #3 We finally see CD’s true colors by: klangwon (posted 2/2/00, # 7283) I nomally [sic] don’t read CD’s stuff but was scanning today and realized that he had made a big mistake. His “money-grubbing Jewish SCUM” comment is too much. This anti Semitism cannot continue. I am immediately reporting this and hope others do too. CD finally slipped up. It isn’t the company he is trashing it is their ethnic makeup. THIS CANNOT STAND! Message #4 Klanglost, YOU are Jewish SCUM By cd_43_eighttt (posted 2/2/00, # 7285) MONEY-GRUBBING JEWISH SCUM, that is. Does THAT annoy you, Klanglost? Does THAT really piss you off? Do I fill you with the hate of a thousand NAZIs? Do you wish you could reach through your computer and strangle the life out of me? If so, PLEASE STAY AND POST MORE! As we saw in the Machado case, those who send flames hold that this is an acceptable practice in cyber space and a part of Internet free speech. We’ll look at some arguments for and against this claim below. At this point, we can see that flaming is pretty strong stuff, even for the cyber world, and that it allows its practitioners to play fast and loose with the truth as well as other social conventions and norms.

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2. Biomatrix Webpage Biomatrix is now a part of Genzyme. Information on Genzyme can be found at www.genzyme.com. Genzyme sold the rights to synvisc to Wyeth but announced buying them back on November 4, 2004. 3. Legal Briefs: John Doe Papers The Amici Curiae Brief filed by Public Citizen and the American Civil Liberties Union of New Jersey (ACLU-NJ) discusses the possibility of corporations using John Doe lawsuits to uncover and retaliate against legitimate whistle-blowers. It can be found at www.citizen.org. Do a search into the brief filed in Dendrite International, INC v John Does Nos. 1-4 and 5-14 inclusive. 4. Biomatrix SEC Report

5. Article (or Summary): Responding to Cybersmear Several interesting articles on Cybersmear can be found at www.johndoes.org and www.shrm.org/law/report. Professor Lyrissa Lidsky has an interesting article, Silencing John Doe published in the Duke law Journal 855. John I. Hines Jr. and Michael H. Cramer have an article, “Protecting Your Organization’s Reputation Against Cybersmear” published by the Society for Human Resource Management, May-June 2003. 6. Yahoo ISP Documents (User Responsibilities, Privacy Policy, Click Activated Filter) Be Careful What you read Information posted to message boards should not be used as a substitute for independent research, and should not be relied on to trade or make investment decisions. Prudent investors do their homework and don’t believe everything they read on message boards. For more information and tips regarding investments and the Internet, please visit the SEC Web site. Never assume people are who they say they are, know what they say they know, or are affiliated with whom they say they are affiliated. Yahoo! Is not responsible for the accuracy of any information posted on the message boards, and is not responsible for any trading or investment decisions based on such information. Yahoo! Reserves the right to edit, refuse to post, or remove any content. Yahoo! may send personally identifiable information about you to other companies or people when: We have your consent to share the information; We need to share your information to provide the product or service you have requested; We need to send the information to companies who work on behalf of Yahoo! to provide a product or service to you. (Unless we tell you differently, these companies do not have any right to use the personally identifiable information we provide to them beyond what is necessary to assist us.);

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We respond to subpoenas, court orders or legal process; or We find that your actions on our web sites violate the Yahoo! Terms of Service…

Socio-technical System
A socio-technical system can be described in terms of six categories: (1) hardware and software, (2) physical surroundings, (3) people, roles, and groups, (4) procedures, (5) laws and regulations, and finally (6) data and data structures. A careful look at the Biomatrix STS provides crucial insights into this case. Hardware and Software. Personal computers connected to the Internet provide the first hardware component. Costanzo, Costanzo, and Morris posed their messages by taking advantage of the cheap access to cyberspace provided by their personal computers. Other hardware and software components in the case can be located in the composition of the Internet itself, i.e., its three layers (Lessig, 2002, 23-25). First, there are the phone lines, fiber optic cables, and wireless infrastructure that form the physical layer of the Internet. Superimposed on this physical layer is e2e, the code layer. As Lessig puts it… This principle—called the “end-to-end argument” (e2e)—guides network designers in developing protocols and applications for the network. End-to-end says to keep intelligence in a network at the ends, or in the applications, leaving the network itself to be relatively simple (Lessig, 2002, 34). This second layer of code, e2e, embeds key values. By relegating the complexity to the edges of the internet and building simplicity into the network itself, the code favors transparency (as opposed to privacy), freedom (as opposed to control), and anonymity (i.e., concealment of real world user identity). Lessig’s central theme, which he explores in Code and the Future of Ideas, is that government and commerce are eliminating these values embedded in Internet code by building in systems of control. Two such systems stand out in this case, PICS (filters) and encryption. The Biomatrix case rests on clear acts of defamation. Since defamatory speech harms its targets, government and business have given considerable attention to how it can be prevented or mitigated. According to Lessig, we control Internet activities through four avenues: norms (defamatory speech becomes socially unacceptable), laws (we’ll look at legal means for controlling cyber speech below), the market (restricting access to cyber speech by charging for it), and architecture or code (using PICS or encryption). Each itself can be effective; when combined they can together be even more effective. Preventing defamation by embedding controls in code requires changing the architecture of the Internet. Filters called PICS (platform for Internet content selection) represent one such change. This software identifies and automatically blocks defamatory speech. For example, Yahoo currently offers a filter that eliminates objectionable language. The user can choose to activate the filter by a simple mouse click. Two problems arise with PICSs: (1) they can eliminate legitimate along with illegitimate speech and (2) they take

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away from Internet users the opportunity to evaluate speech for themselves. This prefiltering makes it likely that PICS can circumvent user autonomy. Furthermore, since the programmers who design the PICS embed moral choices that the users should be making for themselves, the pre-filtering activity constitutes paternalism. Another avenue of control lies in locating speech in appropriately labeled domains and then, through encryption technology, permitting access only to those who understand the nature of the restricted speech and actively consent to “hearing” it. For example, pornographic material can be placed in Internet domains to which access is restricted through encryption. Only those who certify certain qualifications (e.g., age) or those who are willing to pay a set price would be allowed access. Access to these protected domains could be restricted to qualifying and consenting adults. Lessig finds this better than PICS because the moral decision concerning consent to listen to the content of the speech is located in the listener rather than the designer. Physical Surroundings. The events of Biomatrix take place in cyberspace. When we enter cyberspace, we inhabit a world like the training simulations in the movie, Matrix. Real world rules, customs, laws of nature, and civil laws are transformed or suspended. Three transformations are especially interesting for this case: (1) the transformation of personal identity, (2) the transformation of responsibility, i.e., the practice of holding individuals accountable for their actions, and (3) the transformation of speech itself, i.e., how we speak, to whom we speak, and how we listen. Personal Identity. In the real world, personal identity is tied to bodily continuity and social roles. Each of us has a body that we come to understand as the common referent of our mental and physical states. Our bodies provide us with a physically grounded sense of identity that persists through time. We also identify ourselves—and others identify us—through the social and professional roles we play. Family roles (husband, father), religious affiliations (Catholic), jobs (teacher), professional roles (software engineer), and political parties (Democrat) represent some of the markers we use to locate others and ourselves in the social matrix. Both of these identity fixing practices are transformed in cyberspace. Individuals in multi-user domains can inhabit different bodies, often at the same time. In cyberspace, the ties between individuals and their social and professional roles are loosened. Through different the characters that we create in cyberspace, we experiment with being lawyers, doctors, clowns, political leaders, and criminals. We change roles in cyberspace with the same ease that we change clothes in real space. All of this makes identity more fluid and less definite. Responsibility. The fluidity of identify in cyberspace changes the practice of responsibility, that is, the manner in which we hold agents accountable for their actions. Agents are difficult to identify in cyberspace because identity is more fluid and because anonymity is the default condition. Actions are also difficult to characterize. When Bungle (a cyberspace character) created voodoo doll (a computer program) that forced legba (a virtual character) to “rape” Starsinger (another virtual character) in

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LambdaMOO (a multi-user domain) something certainly happened. But this something is difficult to capture in real or virtual terms: it was obviously more than a sequence of digital events but less than a real world rape. To say that cyberspace changes the rules from the real world misses the point. Events like LambdaMOO require that we develop a common vocabulary that allows us to move back and forth between cyberspace and real space. Speaking. The Internet is not just a medium in which speech happens. It provides a network that joins speakers and listeners while overcoming real world barriers like dispersal in time and space as well as expense of access. In the Biomatrix case, the BMX Police said some very specific things about Biomatrix (most of them defamatory) to a very specific audience (individuals interested in investing in Biomatrix). An Internet Service Provider, Yahoo, provided the networking software that put these speakers in touch with their audience at very little cost. Other features of the Internet, such as the ease of copying a few generic messages over and over and then posting them under different pseudonyms, allowed these speakers to display their speech prominently in Yahoo’s bulletin board and crowd out other speech. Thus the features embedded in the architecture of cyberspace instrumented the speech of the BMX police. They enabled a form of communication not possible in real space. The Biomatrix case takes place in the physical surroundings of cyberspace. Here, the meanings of personal identity, responsibility, and speaking undergo substantial transformation. Nevertheless, the events that occurred in cyberspace spilled over into real space and produced real consequences such as a decline Biomatrix stock and damage to the reputation of its corporate officials. Consequently, it is necessary to map the characteristics of cyberspace onto those of real space to get a clear idea of this aspect of the Biomatrix socio-technical system. People and Roles. Four stakeholders dominate the Biomatrix case: the Biomatrix Police, the Biomatrix Cororation & Corporate Officials, Internet Service Providers (especially Yahoo), and Civil Liberties Groups. Biomatrix (BMX) Police: Sixteen thousand messages critical of Biomatrix were postedfrom April 1999 to August 2000. These messages were posted under 23 pseudonyms including the following: cd_438; cd_43eight; cd_43eightt; rvcrvcrvc_1964; allergictochickenbits; dr_stedman; meddra_2000; meddra_2k; voteREP; voteREPLCN; vote_republican_2000; jenti_is_pro-life Following a John Doe lawsuit, three individuals were identified behind the pseudonyms: Raymond Costanzo and Ephraim Morris, both former Biomatrix employees. A third individual, Richard Costanzo, we Raymond’s brother. These three dubbed themselves as “the Biomatrix or BMX Police” i.e., a group of self-styled crusaders whose mission was

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to expose the wrongdoing of the Biomatrix corporation and its corporate officials. Later in this case, all three were found guilty of defamation. Biomatrix Corporation & Corporate Officials The Biomatrix Corporation along with two of its high-ranking corporate officials were the targets of the 16,000 messages. In response, the corporation and its officers petitioned the court through a John Doe lawsuit to subpoena Yahoo to reveal the real world identities behind the BMX Police. Then, Biomatrix and its corporate officials became the plaintiffs in a defamation lawsuit brought against Costanzo, Costanzo, and Morris. Biomatrix claimed that it had been harmed by the messages in that its stock price dropped from $35 to $21. Its corporation officials claimed they had been harmed by the false information spread about them. Yahoo, an Internet Service Provider (ISP) Yahoo provided the BMX Police with an online discussion forum. They also collected information on users as a part of the account registration process. Upon subpoena from the court, they provided the real identities behind the pseudonyms used by the Biomatrix Police. Finally, as ISPs they bear certain legal and moral responsibilities for the content of the information posted at their website. Legally, it remains to be seen whether they are responsible as publishers, media, common carriers, or distributors. (We’ll will discuss these four levels of legal responsibility later in this case.) Morally, they may bear vicarious responsibility for some of the actions of the BMX Police. Vicarious responsibility occurs when one agent bears responsibility for the actions of another such as when a parent is held responsible when a child breaks a window. ISPs, because they instrument or make possible certain kinds of actions or because they take on certain supervisory responsibilities may bear vicarious responsibility for parts of these actions Civil Liberties Groups Civil Liberties Groups such as the American Civil Liberties Union and ? joined forces to file an Amicus Curiae (Friend of the Court Brief) as an interested third party to a John Doe Lawsuit designed to uncover real world identities behind cyberspace user names. The Civil Liberties Groups joined forces to respond to what they see as increasing incursions into free speech on the Internet. We will outline the main points of their Amicus Curiae in the Laws & Regulations section of this STS description just below. Their concern is that John Doe lawsuits could be used by parties interested in covering up information on illegal or unethical activities by threatening potential whistle blowers with legal retaliation. Civil Liberties Groups have also raised serious free speech concerns dealing with the filtering and encryption systems described above. In general, these groups argue for balancing the need to control harmful speech with the need to preserve free speech online. . Procedures. In this section, we focus on four procedures that served to structure actions and events in the Biomatrix case: (1) the procedure for signing up for a Yahoo account, (2) the procedure used by the BMX Police to post messages in the Yahoo discussion forum, (3) the business practice of short selling, and (4) a general description of how the Intenet can serve as a widely and easily accessible medium of communication.

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[Short selling; signing up for Yahoo account, logging in, & posting messages in finance discussion forum] [Procedures in real world vs. cyber space for determining identity, responsibility, and audience in speaking] Several procedures play significant roles in the Biomatrix case. First, there is the procedure of setting up a user account with Yahoo that would allow individuals access to the Business and Finance message board and allow them to post messages. Important here is the privacy procedure of Yahoo (who collected information about its users) and the conditions under which it would release user ID information. Also important were procedures involved in stock trading, especially computer-driven trading since the decline in Biomatrix stock value (from $35 to $21) provided a possible motive for the defamatory messages. Finally, the stock trading procedure known as short-selling played an important role in this case. In Zlotnick v. Tie Communicatons, 86 F.2d 818,820 (3rd Cir. 1988), the Third Circuit Court describes short selling as follows: Where the traditional investor seeks to profit by trading a stock the value of which he expects to rise, the short seller seeks to profit by trading stocks which he expects to decline in value….Short selling is accomplished by selling stock which the investor does not yet own; normally this is done by borrowing shares from a broker at an agreed upon fee or rate of interest. At this point, the investor’s commitment to the buyer of the stock is complete; the buyer has his shares and the short seller his purchase price. The short seller is obligated, however, to buy an equivalent number of shares in order to return the borrowed shares. In theory, the short seller makes this covering purchase using the funds he received from selling the borrowed stock. Herein lies the short seller’s potential for profit: if the price of the stock declines after the short sale, he does not need all the funds to make his covering purchase; the short seller then pockets the difference. On the other hand, there is no limit to the short seller’s potential loss: if the price of the stock rises, so too does the short seller’s loss, and since there is no cap to the stock’s price, there is no limitation on the short seller’s risk. There is no time limit on this obligation to cover. What is especially interesting is that Biomatrix itself was accused of short selling by some of its investors in a lawsuit brought against them after the events of this case. This was in connection with its merger with Genzyme Laws and Regulations. [Three stage legal procedure in narrative. John Doe lawsuit to determine speaker identity. Court order to ISP to provide user identity. Defamation lawsuit to determine speaker responsibility. Amicus curiae to shift process to balance better plaintiff and defendant rights. Consideration of ISP responsibility—does Yahoo operate as publisher, distributer, or common carrier?] Certainly the legal procedures and laws surrounding the protection of free speech are important here. For example, in a John Does lawsuit designed to get the court to subpoena ISPs for user IDs, it is necessary to show sufficient evidence of defamation. We provide a table that highlights legal decisions and relevant legislation, including decisions on lawsuits against ISPs for defamatory messages posted in their Web sites, lawsuits against ISPs for violating the privacy of uses, and legislation such as the

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Common Decency Act (CDA). Of special interest in computer ethics is the relation between the legal responsibility of ISPs for monitoring the activity in their discussion forums and the moral responsibility. The two different in substantial respects. Data and Data Structures. Yahoo collects information about its users when they open an account for three general purposes: to customize advertising and content addressed to individual users, fulfill user requests for products and services, and to target announcements about specials and new products to interested users. In general, they affirm the importance of protecting anonymity to promote free speech online. However, they provide a series of exceptions to their policy of protecting anonymity that are worth quoting in full: Yahoo! may send personally identifiable information about you to other companies or people when: We have your consent to share the information; We need to share your information to provide the product or service you have requested; We need to send the information to companies who work on behalf of Yahoo! to provide a product or service to you. (Unless we tell you differently, these companies do not have any right to use the peronsally identifiable information we provide to them beyond what is necessary to assist us.); We respond to subpoenas, court orders or legal process; or We find that your actions on our web sites violate the Yahoo! Terms of Service… Users do not have to pay for access to Yahoo. However, Yahoo does make money by using the information it has collected about users to help advertisers better target their products. In general, they commit to protecting user anonymity but the above list offers some significant exceptions.

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Ethical Reflections
Safety Individuals (employees, professionals, consultants) who have access to safety information, including risk information, are obliged to make sure this information is made generally available to the public. “Public” refers to those who have to bear a risk but have not participated directly in the decision concerning whether that risk is acceptable. (See Davis) Most of the time this obligation can be carried out through normal activities like testing a new product for safety and documenting use history and then informing the appropriate manager or supervisor. However, there are times when risk information fails to reach risk bearers, especially when those with an interest in covering it up do so. This creates an obligation for professionals who have discovered these risks to ensure that the public is informed. Online discussion forums like Yahoo’s financial section can instrument legitimate, public-serving speech; they can provide means for communicating safety and risk information. But they can also enable other, less beneficial speech. The BMX Police made false and defamatory claims about Biomatrix that caused its stock to drop. Naïve investors, who speculated on the basis of this specious information, may also have been harmed. Can the Internet’s capacity to convey essential safety information be balanced with its capacity for instrumenting the harmful intentions of would-be slanderers? In an Amicus Curiae (a friend of the court brief), several civil liberties groups argue that John Doe lawsuits could be used by unscrupulous companies to retaliate against employees who turn to the Internet to publicize vital safety information that others would cover-up. The Documents section of this case study presents their argument in more detail. In essence, the civil liberties groups contend that the need to communicate sensitive information anonymously must be balanced with protecting decent individuals against slander facilitated by anonymity. Medra_2k (one of the pseudonyms used by the BMX Police) addressed this issue in his message entitled, “Slander = Whistle Blowing.” Here he contends that communicating negative information about Biomatrix can be both slanderous and a civic duty. It all depends on your point of view. From the point of view of Biomatrix, negative information is slanderous. From the point of view of the investor looking for information on Biomatrix, it is whistle blowing and a civic duty. But does the distinction between slander and whistle blowing depend solely on point of view? What about the message’s content, its truth or falsity? If content is relevant—and we think it is—then the distinction between slanderer and whistle blower depends also on the veracity of the message. When true, the speaker is a whistle blower. When deliberately false, the speaker is a slanderer. (Why does Medra_2k miss this point?) Another important issue concerns the connection between anonymity and whistle blowing. If we choose to protect whistle blowing by anonymity, then we also facilitate slander. But there are means for protecting whistle blowers who choose not to conceal their identities. For the last twenty years, legal measures have emerged that protect

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legitimate whistle blowers from retaliation. Pierce v Ortho Pharmaceutical prohibits retaliation against whistle blowers who carry out a “clear mandate of public policy.” (Publicizing risk information represents just such a mandate.) Moreover, since provisions in professional codes of ethics that require professionals to promote public health, safety, and welfare count as “clear mandates of public policy,” these codes can be used to defend whistle blowers who suffer retaliation. Professional employees can refuse immoral or illegal orders using their code of ethics as a defense. Lawsuits brought by those who have suffered punishment for speaking the truth can also use codes of ethics as part of their defense. These protections may be difficult to enact (see chapter 5) but they have been successfully used in the past. Whistle blowing, in its best sense, seeks to prevent harm. But it also cause harm to the target (it harms the target’s reputation) and the speaker (it may cost the speaker his or her job). To get a sense of these costs, look at the experiences of Ruth Ibarra and Margaret Gooderal in the Hughes case.) Moreover, whistle blowing can violate duties of confidentiality. So whistle blowing, i.e., going public with information about impending harms, is a last resort, not a first resort. The BMX Police made false claims about Biomatrix, they failed to document their claims, and they resorted to whistle blowing without trying other measures first. Medra_2k’s attempt to cloak his actions under the mantle of whistle blowing fall somewhat short of its mark.

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Power The Internet empowers individuals by providing a variety of platforms from which they can speak. These platforms are easy to access, cheap, and allow individuals to network with a large and interested audience. The virtual communities that have been built up in the internet instrument communication not possible in the real world by overcoming spatial and temporal limitations. The Internet connects individuals widely dispersed in space. It also allows for asynchronous communication. Power and responsibility are necessarily connected. The philosopher, F.H. Bradley puts this in a rather interesting way when he stipulates three conditions for holding an individual morally responsible. (ES I) Self-sameness, a metaphysical condition, requires maintaining an identity over time. (We’ll look at this issue more when we examine virtue ethics.) Moral sense combines three capacities or powers: the ability to distinguish generally between right and wrong, the ability to shape actions in terms of one’s understanding of right and wrong, and the ability to respond emotionally to moral relevance. Finally, the ownership condition stipulates that the action must stem from the agent’s will. This requires situational knowledge and absence of compulsion. Thus, Bradley connects power with responsibility by setting forth three requirements for holding an individual morally responsible: self-sameness, moral sense, and ownership. We best understand responsibility through a legal metaphor. Being morally responsible means having to answer before a moral tribunal or court. (ref) The moral tribunal sets forth certain standards. Should our answers fall short of these standards, then we must provide an account in terms of the “conditions of imputability,” i.e., self-sameness, moral sense, and ownership. Put differently, we offer excuses based on our lack of power in this situation to act up to standard. Power refers specifically to the conditions we set forth in the above paragraph. Most frequently we offer excuses like, “I didn’t have full knowledge of the situation,” or “I was acting under compulsion.” If these excuses fail to “get us off the hook” then punishment kicks in. Falling short of moral standards creates a debt that we pay through punishment. This rather formal account of the connection between power, responsibility, and punishment can be supplemented by thinking about the martial arts. Mastering the skills of the martial arts (kung fu, jujitsu, karate) give us power over others. What is also true—but less understood—is that they imply responsibility in the form of self discipline and restraint on when and how to exercise this power. So a student’s apprenticeship begins with the performance of seemingly irrelevant tasks which teach the discipline of exercising these powers morally. In the martial arts, moral education and self-defense skills are inseparable; they are two sides of the same coin. The Internet also empowers individuals by providing them with cheap access to a vast audience of interested listeners. With this power comes the potential to do great harm as the BMX Police did when they drove down the price of Biomatrix stock by disseminating false information through Yahoo’s financial discussion forum. How, then, do we direct this power toward the good, if this is, indeed, possible?

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Lessig points out three ways we can control speech in cyberspace: code, norms, law, or the market. We could change the code of the Internet through PICS (programs that filter out objectionable speech) or encryption (which would allow us to isolate domains of objectionable speech). Norms like netiquette or moral duties (tell the truth) represent the ideal way since good behavior would be generated from within the agents rather than be imposed on them from above. The market would restrict access to those willing and able to pay for it. Finally, the legal option has been pursued through legislation seeking to control speech (CDA), establish a framework for anti-defamation lawsuits, and fine tunings such as John Doe suits designed to pierce speaker anonymity. How should we steer or direct the power that the Internet provides us? Should we change the Internet’s code, rely on ethics and norms, use market mechanisms, or operate through the law? Which method would be most effective? Which is most consistent with autonomy? Should we restrict practice on the Internet the way we restrict practice of the martial arts? (Allow only those who demonstrate moral discipline access.)

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Free Speech By this time, you may already have worked through various rights relevant to computing and computing activities. The rights framework we have adopted in this book is based on the following: 1. A right is a capacity of action essential to autonomy that others are obliged to recognize and respect. 2. A duty is a principle that obliges us to recognize and respect the legitimate rights claims of others. 3. Rights and duties are correlative; for every right there is a series of correlative duties and duty-holders. 4. For a right claim to be legitimate, the right must be essential to autonomy, vulnerable to a standard threat, and imply correlative duties that do not deprive the duty-holders of anything essential (feasible). 5. Correlative duties generally fall into three categories. First are the most fundamental duties not to deprive right-holders of their right. Second are the duties to prevent others from depriving right-holders of their rights whenever possible. Finally, in cases where right-holders have been deprived of their rights, there are the correlative duties to aid those deprived. The main claim of freedom of speech consists of the right to express our opinions, even if—and especially when—these are offensive to others. Is this a legitimate or valid claim? If so, it must be essential, vulnerable, and feasible. Why would freedom of speech be essential to autonomy? Is part of the formulation of essential thoughts the ability to speak them publicly and receive feedback from others? What represents the standard threat to freedom of speech? Is it censorship (which certainly consists of the suppression of speech)? Is defamation a form of censorship or a legitimate reaction to harm-causing speech? John Stuart Mill limits freedom of speech by what he calls the harm principle. If the speech threatens to harm someone (the speaker not included) then society can suppress that speech in its own defense. So yelling, “Fire!” in a crowded is not protected under the right of freedom of speech. Inciting to riot, that is, motivating others to inflict harm, would also, presumably, not be a part of legitimate free speech. Freedom of speech—even for its most vociferous advocate—is not absolute but has its limits. Mill bases his argument against censorship on the content of opinions. He shows how censorship is founded on the untenable position of infallibility. If one censors opinion contrary to received opinion, then one insulates it from every avenue of criticism and improvement. In the final analysis, this assumes without proof the veracity of the

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received opinion. His argument explores the charge of infallibility by looking at three possibilities: 1. The content of the speech is true. In this case, censorship is wrong because it denies society of the benefit of the truth. This is the most obvious case of the wrongfulness of censorship. 2. The content of the speech turns out to be (only) partially true. In this case, censorship is still wrong because it suppresses part of the truth and thus denies society its benefits. 3. The content of the speech is entirely false. This is the test case. If censorship is wrong even when the view suppressed is entirely false, then this is the telling argument. For Mill, censorship is wrong even if the suppressed speech turns out to be entirely false, because suppressing the false deprives the truth of clarity which is achieved by contrasting the true with the false and vigor which is purchased by defending the true from the challenges of the false. If we modernize Mill’s argument, it would seem that he would be disturbed by the use of defamation lawsuits to control cyberspeech. If the BMX Police spread false information about Biomatrix, then Biomatrix should counter with more truth. Defending itself in Yahoo would clarify its position (by contrast with the false) and add vigor to its claims. So far we have examined free speech in terms of its content. But what about the speaker? In First National Bank of Boston v Belotti 435 U.S. at 765, 98 S. Ct. at 1407, 55 L. Ed. 2nd at 707 (1978) the Supreme Court of the United States extended corporate free speech to include the political along with the commercial. Commercial free speech allows a corporation to advertise its products on TV, by mail, or in the newspaper. But the First National Bank of Boston took out ads against a ballot referendum in a Massachusetts election, an example of political speech. The minority opinion of the Supreme Court expressed strong concern about capacity of corporate speech to drown out individual speech in the political arena. The majority, however, focused on the speech, not the speaker, territory more hospitable to those arguing against censorship. This also makes sense in cyberspace where individuals have more equal access to their audience. In real space, the audience is accessed only through the expensive mass media giving the advantage to the corporation with its huge financial resources. In cyberspace, t

Student 9.1 of 10 on the basis of 1521 Review.