[governance] RE: Human rights and new gTLDs

[Michael Froomkin - U.Miami School of Law]

On Mon, 1 Oct 2007, Kieren McCarthy wrote:

> You know, I have given these claims about human rights and new gTLDs some
> consideration and I still just don't see the logic.
>
> Is it censorship to stop certain new gTLDs from being approved? In one
> sense, yes. But only if you define censorship as stopping people from doing
> whatever they want despite the clear offence that will be taken by others.

Yet, despite your mockery, that is more or less how we define censorship 
in the US.  We even have a name for the false doctrine you approve of: 
"the heckler's veto" (the doctrine that centralized authority can suppress 
speech because of its concern for a 3rd party's reaction) -- and we VERY 
strongly disapprove of it.  That B claims offense *cannot* be allowed to 
muzzle A, or else A's *right* to speak is illusory.

The rest of your note proceeds under the assumption that it's somehow not 
cencorship if it's well meaning.  It would be more persuasive to talk of 
'balancing' rights than to try to argue somehow that this isn't censorship 
when it clearly is.

To shift to a 'balancing' view does, however, require that one articlute a 
'right not to be offended' equal in value and weight to the right to 
speak, and also equal in likely long run effect to the prophylactic rule 
that governments (or quasi-governmental entities for that matter) ought 
not to be trusted to regulate speech.  This is not easy to do, although 
some have tried.

> This type of "censorship" is more simply defined as the rules that hold any
> society together.
>
> Is it our "human right" to say whatever we want without regard to others'
> sensibilities? No, it's not. We do have a right to not be prosecuted or

It is so long as it does not creat physical harm, or the risk of imminent 
physical harm (shouting "fire" in a crowded theater).

You have defined the problem away.  But it's still there.

> intimidated for expressing an opinion, but that is a quite different matter.
>
>
>
> The important question to ask is: does not allowing certain new gTLDs result
> in the removal or stymieing of discussion of a certain topic?

No, the important question to ask is, "Who decides" -- opinions differ so 
the question is at which level will the decision be made, the governmental 
(or quasi-governmental) or the individual level.  In the US we in the 
large majority of cases, do not trust institutions with the power to 
decide these questions.

>
> And the answer to this is quite clearly no.

And the answer to this question is in fact that opinions differ, which is 
why history teaches us that the power question is central.

>
> This human rights argument appears to completely ignore the actual reality
> of the Internet. There is actually comparatively little connection between
> domain names and content and to pretend otherwise is frankly bizarre.
>
>

The argument for the heckler's veto seems to ignore completely the reality 
of the diversity of viewpoints, and the many things that offend someone.

I could go on, but I think you get the point....

[...]

> I can't for the life of me understand why so much effort is being put into
> shouting at policies drawn up and agreed to by large sections of the ICANN
> community over several years when the really important discussion to be had
> is how exactly the inevitable policies are implemented.
>
>

It is very hard to believe that well-educated people can so blithely whisk 
away the lessons of history.  Assuming that you mean the above seriously, 
all I can say is that there's a powerful body of modern history that 
teaches that Very Bad Things tend to follow from giving institutions 
chokeholds over speech.  I do agree that in the grand scheme of things, 
control over TLD content is (today) pretty small beer.  I personally get 
more excited about Guantanamo.  But I do understand and respect the people 
who argue that one must fight the question of principle when it is small, 
and can be won, rather than waiting until it is big, and much harder to 
deal with.

--
http://www.icannwatch.org   Personal Blog: http://www.discourse.net
A. Michael Froomkin   |    Professor of Law    |   froomkin at law.tm
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
+1 (305) 284-4285  |  +1 (305) 284-6506 (fax)  |  http://www.law.tm
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