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July 31 2012

18:03

By tweeting about a developing story, could you be inciting a riot?

You’re probably not going to like this, but we’re facing bigger Twitter problems than @GuyAdams having his account suspended.

For those who haven’t been among the outraged on Twitter: Guy Adams, a Los Angeles-based reporter for The Independent, tweeted up a storm of criticisms about NBC’s handling of the Olympics. One of those tweets included NBC Olympics president Gary Zenkel’s work email address. Twitter suspended his account for allegedly violating its user policy. The Internet went bananas.

What’s making people so berzerk about all this is the idea that Twitter and a corporate partner — one that works in the news business, no less! — appear to have teamed up to silence a guy who said things those companies didn’t like. (Breaking: Adams apparently has his account back.)

In reporting on something through social media, your action might be seen as calling for that thing to happen.

But here’s a scarier thought: What if it were up to the government to choose what kind of Twitter speech is allowed? What if instead of account suspensions, Twitter users had to worry about being arrested for what they tweet?

That’s a question that Yale Law School lecturer Margot Kaminski has been thinking about a lot these days. The premise of her recent research is that as people increasingly use social media as a tool for community organizing, government will try to impose regulations.

Kaminski has delved specifically into “incitement to riot” statutes in the United States. These are the laws that add the “but” to that freedom-of-assembly bit in the First Amendment, and they vary in key ways from state to state. (How many people have to assemble for it to be considered a riot? What kind of activity constitutes a riot? What’s the difference between someone who’s acting violently, or just threatening violence? And what about intent? Etc., etc., etc.)

Here’s a hypothetical: Let’s say I take to Twitter, and tweet that everyone in Cambridge should meet at the Out of Town News stand and start moonwalking at noon. Harmless flash mob, right?

But what if instead I tweet that everyone should meet there for a looting spree? Am I inciting a riot? (For the record, I am decidedly pro-moonwalking and anti-looting.) Kaminski argues in her paper, “Incitement to Riot in the Age of Flash Mobs,” that “there is no real need to go after the speaker for a crime of ‘incitement to robbery’ or ‘incitement to riot,’ because the speaker’s involvement in the robbery could be punished through other means.”

A thornier question: What if I’m a reporter or some other passerby who tweets about a crowd that’s gathering at the newsstand, and my tweet notifies others who then turn up?

“If somebody tweets there’s a protest happening at XYZ location, there’s a possibility that that might be seen as incitement to riot,” Kaminski told me. “So the thing that might be harmful to journalists is in reporting on something through social media: Your action might be seen as calling for that thing to happen.

This isn’t just an academic thought exercise. Last year, Cleveland’s city council passed ordinance to prohibit “the improper use of social media to induce persons to commit a criminal offense.” Mayor Frank Jackson vetoed the measure. But in December, the council adopted a revised version of the original ordinance, making it clear that “electronic media devices” can be considered criminal tools.

Kaminski says the Supreme Court has never addressed whether there should be a distinction between “direct and indirect advocacy of unlawful action.” The other thing to remember is that states define riots differently. Get the image of a torch-and-pitchfork-toting mob out of your mind: Only two states require at least seven people for a gathering to be a possible riot. Four states require only two people to gather for their assembly to be considered a possible riot. For most states, the minimum is three people.

Many states already criminalize incitement to riot, and plenty of them in ways that Kaminski says are overly broad, even unconstitutional. She calls these statutes fascinating because they implicate not one but two protected freedoms: speech and assembly. In the landmark 1969 Supreme Court case Brandenburg v. Ohio, justices unanimously ruled that the government may not punish speech unless it incites violent action. They drew a line between speech that advocated for violence versus speech that actually incited it. Traditionally, it was up to authorities — often in the midst of a crowd — to determine whether someone was inciting a riot.

“Now there’s a particular fear of social media,” Kaminski said. “I use Twitter as the example because of the fact that cops are afraid that it creates instantaneous reaction. Before, the call to gather would have occurred by some kind of telephone chain, passing out pamphlets or putting up posters. Brandenberg put up this idea that the harm has to be immediate before you can legitimately go after it. It really meant you’re watching the speaker give the speech, and you’re seeing how soon bad stuff is going to occur.”

In an age of virtual assembly, authorities are trying to figure out how to navigate incitement in a non-physical space. One high-profile example from last summer: When police in Britain threatened to bring charges against people for using Twitter and BlackBerry Messenger to incite widespread London riots.

“Twitter brings this immediacy question back into play again,” Kaminski said. “You can have 100,000 followers and send out a message, and have something occur in 20 minutes. There’s a lot of potential for ex post facto justification. The chance that you, with 100,000 followers, put out this message and something really bad happens? Well, you might put out 50 messages with nothing happen and one thing occurs and post-legislators are going to try to apply this to social media. The core of this is making this really clear how much of a high level of intent you have. You have to be able to show that the speaker on Twitter wanted the gathering to occur, wanted it to be large, wanted it to happen immediately, and wanted to frustrate police ability to control it.”

Image derived from photo by Dave Hogg and illustration by Matt Hamm used under a Creative Commons license.

July 30 2012

19:47

The silver lining in the #nbcfail cloud

A touch of irony: There’s good news in the #nbcfail fuss for the network and all networks: The channel is not dead, not yet.

If I went too far — which, of course, is what I do for a living — I might argue that once we could get all the sports from the Olympics live on the web and apps, then we’d abandon old-fashioned broadcast channels and fragment ourselves silly. The channel, I’d argue, is a vestigial and artificial necessity of scarce broadcast spectrum, so who needs it?

But, of course, that didn’t happen. NBC is getting record ratings for its old-fashioned channels — even though it is airing an incredible volume of video online and even though Twitter, Facebook, and the web act as gigantic spoiler networks assuring that every result is known by every American hours before prime time.

Here’s the silver lining, then: Viewers still want channels and the value they add. That is precisely why they’re so mad that NBC is not showing the hottest contests live, because that’s what they expect a great channel to give them: the best, right now.

So NBC could take the #NBCfail fiasco as a Valentine. Not only would I argue that all the spoilers and chatter online are driving audience to prime time but the audience is telling NBC they’d prefer to watch a well-produced channel than the internet.

Take that, Jarvis and all you internet triumphalists!

Listen hard, NBC. Serve your audience well and maybe you’ll keep an audience.

July 29 2012

17:01

#nbcfail economics

Reading the #nbcfail hashtag has been at least as entertaining as much of NBC’s coverage of the Olympics. It’s also enlightening — economically enlightening.

There’s the obvious:
* The people formerly known as the audience have a voice and boy are they using it to complain about NBC’s tape delays of races and the opening ceremonies, about its tasteless decision to block the UK tribute to its 7/7 victims, and about its commentators’ idiocies (led by Meredith Vieira’s ignorance of the inventor of the web; they could have used their extra three hours to enlighten her).
* Twitter is a gigantic spoiler machine. It would be nearly impossible to isolate oneself from news of results because even if you don’t read Twitter or Facebook or go to the net, someone you know, someone you run into will. Information can’t be controlled. Amen.
* We in the U.S. are being robbed of the opportunity to share a common experience with the world in a way that was never before possible.
Those arguments have all been made well and wittily on #nbcfail.

The counterargument has been an economic one: NBC has to maximize commercial revenue, which means maximizing prime time viewership, to recoup the billions paid for the rights to broadcast, billions that pay for the stadiums and security and ceremony. The argument is also made that NBC’s strategy is working because it is getting record ratings.

But there’s no way to know whether airing the Phelps race or the opening ceremonies live on TV would have decreased or increased prime-time viewing. Indeed, with spoilers everywhere, viewing is up. I can easily imagine people watching the Phelps defeat live tweeting their heads off telling friends to watch it in prime time. I can imagine people thanking NBC for curating the best of the day at night and giving folks a chance to watch the highlights. I tweeted: “I’m waiting for NBC to take credit for idea Twitter helps build buzz & ratings for tape-delayed events.” (Which led Piers Morgan’s producer, Jonathan Wald, to take joking credit and then the executive producer of the NBC Olympics, Jim Bell, to offer it. To his credit, Bell has engaged with at least one tweeted suggestion.)

If NBC superserved its viewers, the fans, wouldn’t that be strategy for maximum audience? The BBC is superserving its viewers. I went to TunnelBear so I could sample what the BBC is offering on the air and in its iPlayer — which, of course, we can’t use in the U.S. — and it’s awesome. But, of course, the BBC is supported by its viewers’ fees. So the argument is that the BBC serves viewers because they’re the boss while NBC serves advertisers because they pay the bills.

I still don’t buy it. I don’t want to buy it, for that pushes media companies to put all they do behind walls, to make us pay for what we want. I still see a future for advertising support and free content. I still believe that if NBC gave the fans what they wanted rather than trying to make them do what NBC thinks it wants, NBC could win by growing audience and engagement and thus better serving sponsors. I ask you to imagine what Olympics coverage would look like if Google had acquired the rights. It would give us what we want and make billions, I’ll bet.

The problem for NBC as for other media is that it is trying to preserve old business models in a new reality. To experiment with alternatives when billions are at stake is risky. But so is not experimenting and not learning when millions of your viewers can complain about you on Twitter.

The bottom-line lesson for all media is that business models built on imprisonment, on making us do what you want us to do because you give us no choice, is no strategy for the future. And there’s only so long you can hold off the future.

The bottom line for Olympics fans is that, as Bill Gross pointed out, much of the blame for what we’re seeing — and not seeing — falls to the IOC and the overblown economics of the games. There is the root of greed that leads to brand police who violate free speech rights in the UK by chilling use of the innocent words “2012″ and “games”, and tape delays, and branded athletes. This is the spirit of the Olympics Games? It is now.

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