A central paradox of the Internet as we know it is that there’s no privacy unless you’re there to invade someone else’s. Indeed, while living our lives online has effectively signaled the end of privacy for people as subjects, it provides a veil of anonymity for anyone who wants to use it. The Internet lets people bully, badmouth, berate, and spread misinformation without having to show their faces or sign their names. The resulting effects of the Internet on speech, privacy, and reputation are the subjects of The Offensive Internet, a new collection of essays edited by Saul Levmore, William B. Graham Professor of Law at the University of Chicago Law School, and Martha C. Nussbaum, Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago.
From the book’s introduction, written by Levmore and Nussbaum:
“The speed with which reputations can be made and altered is just one way in which the Internet has changed everything. It surely is the case that most of the changes are for the better but, sadly, the Internet is a curse when one is the subject of negative information, whether self-presented, and then indelible, or communicated by others. And yet the Internet has changed nothing, which is to say it has returned us to the world of the village.”
From there, Levmore and Nussbaum explore the similarities and critical differences between the small villages of times past and the “small village” created by the Internet. In either situation there is the sense that everyone knows everyone, that all information is public. The crucial difference, though, is that when one’s reputation was attacked or privacy invaded in a village, there was recourse. Everyone knew the identity of the speaker, and so could take their credibility into account. And so the subjects of slander in a village could challenge the speakers, or, as a very last resort in the case of a ruined reputation, simply leave the village. On the Internet, where rumors, gossip, and malicious speech can quickly gain momentum, there is little chance of challenging an unknown speaker, and the Internet is a village you can’t really leave.
The editors and contributors, a group that includes Daniel J. Solove, Cass R. Sustein, and Jeffrey R. Stone, among others, cover a lot of ground across the book’s thirteen essays, and not all of the writers agree on how anonymity on the Internet should be addressed. The organizing principle, though, is that we should no longer allow the Internet to be an untouchable forum for the sort of offensive speech that would be legally actionable in any other venue. As contributor Brian Leiter explains on his blog, the general theme of the book is that “ordinary tort law, whose constitutional status isn't in doubt, should apply in cyberspace. Current law, remarkably, exempts cyberspace from large parts of tort law (but not from copyright law, oddly).”
Again from Levmore and Nussbaum’s introduction:
“All of our authors think that speech on the internet may be regulated at least as much as speech in other venues and media, and many take particular aim at one section of the Communications Decency Act, which has been interpreted to immunize the operators of websites and blogs against liability for comments posted by others. A withdrawal of that immunity could, without constitutional difficulty, restore the symmetry between website operators and publishers of newspapers, who can of course be sued for damages if they publish defamatory material.”
This particular prescription is sure to provoke anyone interested in preserving free speech on the Internet. In a New York Times Opinionator column this week, though, Stanley Fish points out the most surprising—and sobering—aspect of this attempt to limit offensive speech on the Internet:
What is remarkable about this volume is that the legal academics who make the arguments I have rehearsed are by and large strong free-speech advocates. Yet faced with the problems posed by the Internet, they start talking about “low value” speech (a concept strong first-amendment doctrine rejects) and saying things like “autonomy resides not in free choice per se but in choosing wisely” and “society needs not an absence of ‘chill,’ but an optimal level.”(In short, let’s figure out which forms of speech we should discourage.)
Perhaps the most amazing statement is made by Daniel J. Solove when he declares that “the law is hampered because it overprotects free speech.” The conventional first-amendment wisdom is that free speech cannot be overprotected, but that wisdom is put on trial by these thinkers.
This book, coming from these writers, will be a revelation for many who follow these debates. The Offensive Internet, with its essays on online rumors, social networking sites, cyber-bullying, and civil rights in the information age, is sure to provocatively stimulate the Internet discussion.
