Dahlia Lithwick, the keynote speaker at the 104th annual conference of the American Association of Law Librarians (AALL), explained why the Justices of the Supreme Court are conflicted about free speech issues. It goes back to their confirmation hearings, which tend to be brutal and vicious. This gives them a jaundiced view of both the press and the public. Lithwick, a journalist who covers the Supreme Court, then examined six recent free speech cases.

Her takeaways:
1. The media (and technology) can turn speech into assault. It’s no longer a situation of worrying only about yelling “Fire” in a crowded space, something not considered to be free speech. Today, whispers in one place, amplified by the internet, can have drastic consequences in other places, even if the Supreme Court thinks it’s free speech. One example: A book burning in Florida (the book being the Koran) resulted in deaths of Americans in Pakistan.

2. Technology transforms private speech into public speech. Nothing is off the record anymore. When a Justice gives a speech or shows up at a venue, that event is recorded and becomes public on websites. Some justices haven’t grasped this and don’t appreciate the attention.

3. Assaultive speech is not speech. Here her example is the violent video games, which she thinks should not be considered free speech, particularly because they require interactivity. She also asked us to think about Phelps v Snyder, where pfc Snyder’s father was viciously attacked in an epic ode published on the internet, but that was not considered by the Court. The Court did rule that the Phelps family demonstrating at military funerals was a form of protected speech.

Lithwick made an excellent case for new technologies being way ahead of the law (not that I find that a particularly new phenomenon — it’s been that way for years). She also pointed out that many of the Court’s decisions about protected free speech are not in line with how the general public thinks. She suggested it is not an accident that those most concerned about civility are those who endured the most uncivil confirmation hearings.

Her final point: When it comes to free speech and technology, the Court needs to change. She certainly wowed the AALL crowd, delivering a well-crafted, intelligent, witty, and thought-provoking talk with nary a PowerPoint slide in sight!

I’m intrigued by the recent criminal indictment of Aaron Swartz for allegedly stealing somewhere in the neighborhood of 4.5 million records from JSTOR. This statement from JSTOR explains the facts and is remarkably restrained.

Other commentators have not been so restrained. Kevin Webb, in a Reuters blog post said, “None of us want to break the law. It’s simply that we don’t have a choice.

The mechanisms for sharing academic discourse are broken. They barely even function as systems for connecting interested parties within existing disciplines. Ask just about anyone who spends their time writing or consuming scholarly work and you will hear a litany of complaints about how poorly suited the academic publishing industry is to modern day collaboration.”

Timothy Lee, a Forbes blogger, decried Swartz’s “reckless activism” but seems to applaud the idea of making any information resulting from government-funded free, regardless of how that is accomplished. This is an extreme reading of “open access” and one that even the most fervent OA advocates would not condone stealing entire databases, particularly when it involves breaking and entering.

JSTOR even says in its statement that it willingly provides large data sets to researchers for analysis. Furthermore, why JSTOR? Already, some 14% of its customers don’t pay anything. It’s a non-profit. And it concentrates on scholarly research in the humanities and social sciences. Federal dollars do not flow to these disciplines as they do to the hard sciences.

Demand Progress, the organization founded by Swartz, has a petition you can sign if you support Swartz’s activities.

In the midst of all the heated discussions, two things caught my attention. One, no one really knows what Swartz intended to do with 4.5 million JSTOR documents. Was he going to analyze them as he has done previously with law review articles and Wikipedia? Or did he intend to re-publish them on the web? Many commentators, both in mainstream media and the blogosphere, assume one or the other. The fact is, we don’t know. Would you feel differently if you knew he was attempting a scholarly analysis versus setting free millions of documents? Does it matter to a legal case?

The second thing is rather more mundane and speaks to changes in library research. There has been a cascade of commentary, again both in mainstream media and the blogosphere, that is largely repetitive. Here’s the repeat that bothers me — the assertion that he published his analysis of over 441,000 law review articles in the Stanford Law Review.

Librarians of my acquaintance immediately jumped on LexisNexis (and other legal databases) to find the exact citation. Swartz isn’t there as author. You can find the article once you realize the actual author was Shireen Barday. It was published in v. 61 #3, December 2008 of Stanford Law Review as a Note. There are many “librarianish” ways to get to the actual article. The easy way, which I hope they’re teaching in library schools these days, is to eschew traditional online databases and go direct to Aaron Swartz’s own website, where he happily gives up the exact URL to the article.

Just as the debate about what open access entails, how it should be implemented, and what the role of traditional publishing will be is convoluted and complex, so is the way in which librarians approach research projects.

As a side note, the September/October 2011 issue of ONLINE will run an article about open access and the many different methodologies and techniques of searching the web will be explored at WebSearch University early in October 2011.

I note that AllBusiness has announced a major redesign. It’s all about small business, I gather, with a new tagline of “Your Small Business Advantage.” As a D&B company, AllBusiness has had a relationship with ONLINE, but it getting weird. It does seem to have articles from the magazine but none more recent that May/June 2010. And I seriously love the bizarre indexing AllBusiness has applied to some of the articles. Case in point: Walt Crawford’s column in the September/October 2008 issue. Titled “Twitter Ate My Column,” it’s about the perils of time wasting posed by social media and what to do about it. AllBusiness has decided to index it with “Jews & Judaism” and “Religious Groups”.

Say what, AllBusiness? Twitter, Facebook, LinkedIn, et al. are not, to the best of my knowledge, religious entities. Nor did Walt even hint that they were. And nothing about Judaism is in there either. Maybe D&B should have hired a taxomist to help with this redesign.