Fix for anonymous sleaze is in our attitudes, not laws

This article was originally published on Salon.com on January 5, 2011.

It’s vital to protect anonymous speech; start by cleaning up the online cesspools

The people who want to control online speech have won some influential allies. New York Times blogger Stanley Fish has given a glowing endorsement to a new book of essays in which law professors — — who profess to believe in free speech — call for the curtailment of online anonymity.

Their hearts are in the right place. Parts of the Internet are cesspools of slimy speech, where anonymous cowards hide behind virtual bushes and say outrageous, untrue things about others. I’ve been attacked in this way, and I don’t like it.

So of course anyone with a conscience wants to encourage accountability and responsibility in speech. But the key word there is “encourage,” not “force.” It’s essential to preserve anonymity, and to appreciate why it’s vital. Anonymity protects whistle-blowers and others for whom speech can be unfairly dangerous.

If Fish’s description of the book is accurate, the authors are offering a cure that is much more dangerous than the disease: They would require Internet sites to take legal responsibility for what other people post on their sites.

Worse, they pay too little attention to the people who can do most to solve this problem. Who are those people? Us, you and me, who are the audiences for speech. We are the ones who need to take more responsibility. I’ll come back to this, but first let’s understand why the authors’ fix would stifle online speech in dangerous ways.

Fish writes:

The Internet and the real world, [essayist Brian] Leiter concludes, “would both be better places” if Internet providers were held accountable for the scurrilous and harmful material they disseminate.

How might that be managed? The answer given by the authors in this volume involves the repeal or modification of Section 230 of the Communications Decency Act, which says that no provider of an Internet service shall be treated as the publisher of information provided by another. That is, the provider is not liable for what others have said, and courts have interpreted that section as immunizing providers even when they “have knowledge that [a statement] is defamatory or invasive of privacy.”

Modifying Section 230 is risky business. This law has done more to encourage robust speech, by far, than any other piece of legislation in recent history. The immunity rests with the host. It does not extend to the person who posted the defamatory material. And courts have routinely required hosts to turn over information — such as IP addresses — about people who’ve posted defamatory material, while also generally resisting fishing expeditions by parties, especially companies, that want to shut down harsh but non-defamatory criticism.

If the law required Internet sites to monitor and control the speech they hosted, all kinds of conversations — mail lists, forums, comment threads and more — would simply disappear. The legal exposure for hosts would simply be too great for most people or companies to take the chance; being sued, even if you’re entirely in the right, can be ruinous financially.

What we need to modify most is our own attitudes.

This should start with the way we treat a kind of anonymous speech that I consider vastly more pernicious than the crapola I see on random blogs and comment threads: the too-common use of anonymity in Big Media reporting. As I’ve written in my new book, “Mediactive,” I have a rule of thumb. When a news report quotes anonymous sources, I immediately question the entire thing. I’m skeptical enough about spin from people who stand behind their own words, but downright cynical about the people who use journalist-granted anonymity to push a position or, worse, slam someone else. When someone hides behind anonymity to attack someone else this way, you shouldn’t just ignore it.In the absence of actual evidence, you should actively disbelieve it. And you should hold the journalist who reports it in contempt for being the conduit.

I have even less respect, if that’s possible, for most online comment threads. Anonymous commenters on blogs or news articles deserve less than no credibility on any BS meter. They’d have to work hard just to have zero credibility.

Pseudonyms are a more interesting case, and can have value. Done right, they can bring greater accountability and therefore somewhat more credibility than anonymous comments. Content-management systems have mechanisms designed to require some light-touch registration, even if it’s merely having a working e-mail address, and to prevent more than one person from using the same pseudonym on a given site. A pseudonym isn’t as useful as a real name, but it does encourage somewhat better behavior, in part because it’s more accountable. A pseudonymous commenter who builds a track record of worthwhile conversation, moreover, can build personal credibility even without revealing his or her real name (though I believe using real names is almost always better).

Conveners of online conversations need to provide better tools for the people having the conversations. These include moderation systems that actually help bring the best commentary to the surface, ways for readers to avoid the postings of people they find offensive and community-driven methods of identifying and banning abusers.

Again, while recognizing the real problem of anonymous sleaze, I emphasize again that it’s vital to preserve anonymity while encouraging its responsible use. And it’s even more vital for us to put anonymous attacks in their place: the virtual garbage pits where they belong. Only we can do that.

So when people don’t stand behind their words, we should always wonder why — and make appropriate adjustments in how we react to what they say.

(Note: I’ll be discussing this and other topics on Jan. 12 in a talk at the New America Foundation in Washington, D.C. You can find more information about the event here.)