Ramblings on Linden Lab’s Legal Position

I reported and have sat back and watched with interest the reactions of Second Life residents to the “Keeping Second Life Safe, Together” post by Daniel Linden. Although, personally I believe most misunderstand the spirit of that post; there has been a vast reaction, including the forming of United Protest, by various protest groups, and what may possibly be the beginning of the demise of United Protest.

Realizing that even in our Blog’s author group, we have a wide rage of opinions on the subject of age play. TD Goodliffe’s view on April 12th, 2006, My thoughts on January 8th, 2007, Caliandris’s post on May 13th, 2007, I have wanted to sit back and reserve comment on the Lindens position until I could get a clearer understanding on exactly what their position is, but that no longer seems reasonable.

Supreme Court Justice Oliver Wendell Homes dissenting opinion in United States v. Schwimmer, 279 U.S. 644 (1929)
“If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought-not free thought for those who agree with us but freedom for the thought that we hate.”

Although this case was about a woman being denied naturalization U.S. Citizenship because she was personally not willing to take up arms in defense of the United States; Justice Homes statement has been cited often in many free speech and freedom of the press cases.

What does the Second Life sex, violence, and age play controversies have to do with Free Speech or Freedom of the press?

First, there is a misunderstanding over the right to free speech and freedom of the press — They actually only apply to prohibit the government from interfering with them. As a private company Linden Lab is not obligated to allow either free speech nor freedom of the press, but with people like Mitch Kapor involved with Second Life, I have always believed (I still believe) free speech and freedom of the press would always be allowed in Second Life.

Interaction in virtual worlds is such a new phenomenon there aren’t any real precedents established. We have yet to even determine what a virtual world actually is.

Caliandris Pendragon, a seasoned Second Lifer, wrote in a blog post on May 13, 2007

Until recently, it seemed that Second Life society was much freer than real-life society. Whatever lifestyle you might choose to pursue in the real world, in Second Life you could experiment with BDSM, age play, bestiality or furriness, life as a vampyre or alien or jumped-up police officer. Generally, as long as legal and not offending others, you could indulge your avatar in free exploration, and maybe learn things about yourself at the same time.

Does anyone actually know whether allowing “lifestyles” inside a virtual space would satisfy a publicly unacceptable “desire” or “urge”, which is possibly beyond one’s control, or if it would bring that person to follow through in “Real Life” Surely this would provide scientific value.

There are some individuals who would wish virtual worlds to be an independent world beyond the jurisdiction of any or all existing government control. Allowing citizens with different values or belief’s, from those of the country in which they reside, be able to experience, express, and vicariously live a life they would never be able to do within their real life environment. Others want virtual worlds to be controlled by the laws of the governments in which the user resides, and of course there are many ideas in between those views.

Virtual worlds allow individuals to “try on” different personalities, attitudes, and beliefs, as easily as changing clothes, without causing any serious real life harm to anyone. Allowing those individuals to actually form a better understanding of who they are. Many psychologist are stating that a child’s personality is easier to understand from the representation of their avatar, more so than by their real appearance, by showing how the child either perceives himself or how he wishes others would perceive him.

The truth of the matter is that inside the virtual worlds individuals come together, create bonds, trust, and associations with other individuals which affect each others real lives. The question becomes, is what happens in the virtual world “real” because the effects can affect individuals? Would not a really well written book do the same?

Could we not put forth the argument: Any interaction within a virtual world is the same as a collaboration in authoring a book? Isn’t what is transpiring via a virtual world actually occurring inside the imagination of the individuals much more so than occurring in any real world country? Much the same as the action of an authors written words occur in the minds of the readers?

It wasn’t long ago that the United States had not extended the right of freedom of the press onto the internet… or what was passing for the internet in 1989 and 1990.

Linden Lab’s post “Keeping Second Life Safe, Together” would appear to be an attempt to cover their legal back side, but I think they are putting themselves in farther legal peril.

I, like most, often get frustrated with updates, poor performance, and the instability of Second Life… but I am in awe of what Linden Lab has created, and how they have managed to keep a “hands off” policy for such a length of time as they have… Only to make a terrific mistake at this point by worrying about legal issues of “broadly offensive” nature. I understand not wanting the expense of fighting an expensive legal battle, but am disappointed to see them abandon their original vision.

Benjamin Duranske, editor of Virtually Blind, points out the the term “broadly offensive” seems to be guided by the “Miller test” from the 1973 United States Supreme Court ruling in Miller v. California where the opinion of the Court was written by Chief Justice Warren Burger:

The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards‘ would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

It would appear that with all the intense interest of University Psychology departments from around the world… Second Life would be easily covered by the scientific value of any “broadly offensive” material.

I guess it all comes back to how Linden Lab actually feels about Justice Oliver Wendell Homes belief on “the principle of free thought-not free thought for those who agree with us but freedom for the thought that we hate.”