To Theo, and Conclusions

We’ve spoken a lot about libel, free speech, and Internet exceptionalism over the last blog posts that we’ve written.  After long thought, I’ve come to a few (tentative) conclusions.  But before I get to those, let me just address a few modifications I would make to Theo’s statements about how to address the problem of Internet libel.

First, I like his idea of dividing up content into user-based and subject-based.  We can’t lump all speech on the Internet into a single can—there’s just too much variety, too many differences.  Setting up a distinction between users and subjects is a crucial step to treating Internet speech seriously and making an effort to build a workable legal system.  I would agree with Theo that we can’t allow the subjects reviewed or scrutinized to edit the speech regarding them—to do so would contradict the reason for having such a system in the first place.

But, while I agree with Theo’s notion that there should be a system for allowing others to report defamatory content, I would be disinclined to have that system lean towards supporting businesses that claim to be defamed.  I believe that the system of Internet libel should follow the system of regular libel—the plaintiff has the burden of proof.  While the sites should certainly allow for plaintiffs to make their case, they should not be inclined to support the plaintiff’s point of view; to do so would be paramount to assuming the guilt of the poster, rather than taking the position that is held throughout our justice system: innocent until proven guilty.  I see no reason to allow those who claim to be defamed on the Internet greater leeway than those who claim to be defamed off of it; if we’re going to legislate libel on the Internet, we should legislate it so that it doesn’t contradict any of the fundamental pieces of our justice system.

Aside from that, I’d also advocate for a more stringent review system than simply: person reports defamatory content, website exams truth, website makes decision—the user who is accused of posting such content should have the opportunity to put forward his or her own case, rather than making the conversation one solely between the plaintiff and the website.  If I’m going to be accused of defamation, I’m going to want to be able to defend myself from that claim.  Any process of content review should involve the original poster; while the final decision should be left up to the website, that decision should not be devoid of the poster’s input.

And now, for my conclusions: I came into this discussion convinced that to touch speech on the Internet was to violate the First Amendment, that in order to keep the Internet free we mustn’t touch it, that things written online just aren’t the same as things published offline.  Needless to say, I think my perspective has changed.  I’ve come to understand that in order to preserve the sense of fairness that our society is founded upon, we cannot declare the Internet a no-man’s land, devoid of law or justice.  If we’re going to keep the Internet free, we have to make sure that the Internet stays fair, and in order to do that, we have to respond to libelous speech, not ignore it.  I’m still not convinced that the only solution to dealing with Internet libel is through the legal system, but I do know that it is a solution, and one that isn’t quite being utilized to its full potential just yet.  I think that in order to combat libelous speech, we have to have a system that allows one to combat it, and that system doesn’t really exist yet.  We don’t have to alter Section 230, we don’t have to make the Internet less free, but we do have to make it so that individuals unfairly victimized by anonymous or known posters can respond to that victimization, and in order to do that we have to have some form of oversight.  I think the ideas that Theo and I kicked around are a good to start to that process, but by no means the final end.  I hope that our discussion has led to a little more enlightenment of the issues that we’re facing; it’s certainly enlightened.  Theo, Professor Malone, it was good working with you both.

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