I suspect that most people do not take fully to the idea that our interactions online are a form of commodity. I am willing to admit that the idea is a bit radical; however, this doesn't mean we should dismiss it simply because of its political polarity. As we will see, and as most twitterati already know, the Creative Commons structure covers a vast majority of online content and that the real point of contention here is the act of critique or comment.
The use of a Creative Commons license is an act of commoditization. Such use of any of such licenses imply that the writer, artist, or composer expects their audience to treat their expression as a "product." In such a way the creator is exercising control over the reuse of their creation. This is of course just a modern twist on the older copyright system, and for the purposes of this discussion the differences between the two aren't important.
Creative Commons (CC) or Traditional Copyrighting (TC) covers a large swath of online content: music, art, pictures, articles etc. However extensive this list might be the one thing that it doesn't universally cover is the act of commenting. This is where we run into issues and put quite simply, there are no standards to be had.
Some website gleefully delete comments for no apparent reason (Sarah Palin's Facebook Page), and others thrive off their crowds (4Chan). Most sites sit well between these two extremes. Now, just how do we define online speech and expression? First, we need to examine the difference between speech in meatspace and "speech" online.
The largest distinction is when we speak in public, our word is our own and it exists only in that moment. Our words may carry effect and responsibility, which of course might result in consequential action, but for the most part the words we say exist only for that moment
Our speech might also have some sort of legal regulation to it or it may not (i.e Discussion between patients and doctors or husband and wives). Traditionally our society has sought to regulate the recordings of such words. The existence such regulations and provisions essentially creates a different class of speech. This class of speech, though perhaps had in a public local could still be considered "privileged".
Now, why should we need to bother even bringing this distinction up? What value does it bring to the free-form world of online forums, chat-rooms and IMs? Namely, it raises the question does the medium of communication affect its class? In many way's the structure of online communication affects how it is classed.
Insofar as traditional speech the courts have for the most part treated e-mail as privileged, unless there are other overriding factors (see Virgina's AG investigates UVA). What is important here is the fact that the courts treat e-mail not as "speech" but rather as a tangible document.
This is the great distinction between actual speech and online expression. While online, we do not engage in speaking. We actually engage in the act of documentation. Moving from e-mail or IM's to forums isn't a great leap. Only now instead of creating a document between two individuals we engage in the act of creating a publicly posted document. Forum posting is like engaging in a debate by nailing our responses on someone else's front door. And the persistent nature of online documentation has already burned many-a-number of people.
So there you have it, this is why the first amendment has proven inadequate to address the demands of the information age. While online we don't engage in speech. The very act of using a computer interface and protocol generates tangible documentation. One way or another we need new regulations to address the reality of this situation.
see also :Buckley v. Valeo.