The Anonymous collective on online hacktivists has started an online petition to the White House asking that denial of service attacks (DoS) be protected as free speech and thereby receive the protection of the First Amendment. They argue that denial of service is not hacking, but a form of protest. In their petition, Anonymous suggests that a denial of service attack is no different than gathering outside a business or public office in protest. You are, in effect, occupying a Website in the same way that you might occupy the street outside a business or government office.
The biggest problem I have with this argument is that while there are some valid points on the surface, it doesn't make a lot of sense when you dig even a little deeper. That's because a Website isn't a business.
When you disrupt a business by standing outside its offices and protesting, you don't stop the people inside from expressing their points of view or countering yours. Sure, you're a nuisance to the people you are protesting, and very likely their customers, but each side is still able to make their voices heard. You make your demands while the press reports on the activities and the people you are protesting get to make their points. Freedom of speech is more or less guaranteed to all parties, unless there are issues of illegal confinement, hostage taking, kidnapping, or some other forcible denial of any individual's right to express themselves.
The trouble with Anonymous' argument is encompassed in my last point. They are forcibly denying a site owner of the ability to express themselves. In that effort to express themselves, they are denying the site owner of their freedom of speech. The site being taken down is left with no way to express itself. At no point in this discussion am I suggesting that anyone is using illlegal botnets or zombie systems to do the work. I'm basing this on the idea that everything else in play is perfectly legal, with members using their own computers to hit the refresh button over and over again. Besides, how they do it is irrelevant to the First Amendment question.
To make matters worse, many Websites are on shared hosting systems. One Apache server handles many different companies. If you perform a denial of service against a company, you could be taking any number of additional businesses offline, limiting their ability to do business, and to express themselves. Their only crime is being on the same server.
It's a bitch, but if you want to walk the high road of free speech, you can't deny another person doing the same. Freedom of speech is a two way street, otherwise it's just those with means and the power ensuring that others are kept silent.