* In Vancouver, Canada, the magazine Maclean’s is on trial for allegedly publishing hate speech against Muslims. Back in 2006, the magazine published a controversial article called “The Future Belongs to Islam.” The article, an excerpt from the book America Alone, argued that Islamic countries will control the world by the end of the century. It sparked a flurry of responses and political debate in Canada about the confrontation between Middle East and West. Two members of the Canadian Islamic Congress charged that the magazine violated local human rights law by publishing the article, and the British Columbia Human Rights Tribunal is currently holding hearings to determine if the magazine will be fined or censured.

Many blogs (more and yet more) have covered the free speech aspects of the case. The result is clear: In the United States, for better or for worse, the article and the magazine would be protected by the First Amendment.

But it does raise a more important issue: What is the line between personal harassment and political opinion online?

In the United States, the First Amendment, has long been understood to protect all forms of political speech. There’s no doubt that bloggers are protected by the First Amendment when discussing Obama and McCain. (See our offer to Obama here, and our coverage of McCain here). (Note from the lawyers: the First Amendment doesn’t protect malicious libel of public figures, but there is an extremely high standard for malice –just because a blogger has said something false doesn’t mean that it’s malicious under the First Amendment. The courts have always been very protective of political speech and usually respond that the right answer is to spread the truth rather than to sue people who are getting it wrong. Anyway, very few politicians would ever bring a lawsuit.)

But, many forms of personal harassment are not protected by the First Amendment at all. For example, the First Amendment doesn’t give you the right to slander a private individual by saying false things about them. And the First Amendment doesn’t make it okay to publicize personal secrets, like medical history or a concealed sexual orientation, even if the information is completely true.

Until now, it’s been pretty easy to figure out what’s protected speech and what’s unprotected speech: If a magazine published an article about the politics of Islam, it would be protected under the First Amendment, even if the article wasn’t accurate. If a magazine published an article about a random private citizen that contained false information, it would not be protected. And, thanks to the massive staff it took to run a newspaper or magazine, the vast majority of publications were very careful about fact-checking: They had the resources to do it, and a lot to lose in court if they got it wrong.

But, what happens online? Now, anyone with a computer can publish a website attacking anything. There’s no requirement to check facts, and many bloggers have very little to lose. And any blog post is instantly available worldwide, unlike a dead-tree newspaper or magazine with a limited circulation.

Right now, the courts have said that the normal First Amendment rules apply. If the target of the attack is big–like an entire religion or government–then the First Amendment should still protect them. And if target of the attack is one person–like a neighbor or co-worker–then the normal rules for harassment under the First Amendment apply. But what if the target is somewhere in between? For example, if the blog falsely attacks the members of a particular church congregation, or falsely accuses the teachers at a school of wrongdoing.

In the case of an attack on a small group, the harm of false statements will be be felt by the members of that group. Google is incredibly powerful, and has a habit of bringing up negative information near the top of search results. Someone looking for information about the group or its members online is likely to see the false information, and it’s likely to be repeated across other blogs and websites until it fills the top search positions.

The answer isn’t clear. But we need to think about where we draw the line between protected political speech and unprotected personal attacks. The courts in the future will have to draw these lines in an age of instant global anonymous publishing. This is a conversation that will continue for many years.

* I thank ReputationDefender for letting me continue to guest-blog. The views in this column don’t necessarily represent those of RefDef or its employees.

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