The Offensive Internet
"Information wants to be free." The Internet visionary Stewart Brand first said those words in 1984, and ever since they've been an unofficial slogan for the online world. For many people the Internet is defined by freedom, especially freedom of speech: it's the one place in our society where anyone can say anything. Most of the time, we think of that freedom as a good thing.
Now a distinguished group of philosophers and legal scholars begs to differ. They're calling that assumption into question in The Offensive Internet, a new volume from Harvard University Press. The volume is edited by two eminent professors at the University of Chicago Law School, Saul Levmore (who was until recently the dean) and Martha Nussbaum, and includes essays from scholars who, the critic Stanley Fish notes, "are by-and-large free speech advocates." It's filled to the brim with examples of internet bullying, rumor-mongering, and harassment.
Levmore's essay is called "The Internet Anonymity Problem," and it argues that on the Internet speech is absurdly and even injuriously free - more free, for instance, than the proverbial writing on the bathroom wall. Levmore cites a case in which the owner of a bar was found liable for defamatory graffiti in his bar's bathroom, which failed to remove even though he knew it was there. And yet an Internet Service Provider or website administrator is explicitly protected from any analogous liability by the Communications Decency Act, even though the Internet, unlike the bathroom wall, is permanent and has a search box. Levmore argues that ISPs should be required by law to give up anonymous posters' IP addresses if they're subpeonaed. At least the bathroom wall, he points out, serves another purpose - many websites, like the now-defunct JuicyCampus, exist solely for the purpose of anonymous libel and rumor-mongering.
Other essays in the book focus on the way the Internet abets youthful indiscretion, the spread of false information, and the objectification of women ("Much of the damage done by the spread of gossip and slander on the Internet," Nussbaum notes, "is damage to women"). The authors seem to agree on a central problem: that the Internet is simultaneously social enough to cause harm, and asocial enough to tempt people into harming one another. In real life, there's what legal scholars call a "chilling effect" on false or damaging speech. Sometimes laws discourage people from spreading scurrilous rumors or making false claims; just as often, social life itself intervenes (everyone can see you when you're standing on a soapbox). On the internet, though, there is no chilling effect: there are neither laws nor social taboos against saying the untrue or unsayable. The goal of the law governing speech, Sunstein writes, must be to ensure an "optimum level of chill," whether face-to-face or online.
Why is the Internet exempt from the laws about speech that hold in the rest of society? For a long time it was considered a nascent medium, and judges sought to protect it and help it grow. Today, any attempt to regulate Internet speech is attacked as an assault on the First Amendment. And yet, Nussbaum and Levmore argue, the laws governing speech are far more subtle; they respect its power to harm as well as help. "Regulation of speech," they write, "is uncontroversially constitutional with respect to threats, bribery, defamatory statements, fightings words, fraud, copyright, plagiarism, and more." The Internet has grown up - and it should be subject to grown-up laws.
