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.)

10 thoughts on “Fix for anonymous sleaze is in our attitudes, not laws”

  1. Regarding your claim “What we need to modify most is our own attitudes.”

    Sigh. Dan, you know what I think overall – I’ve said the following idea before, and I suppose I should make it a stock reply:

    “In response to [X], you are completely correct, that people should do that. The should. Indeed, they SHOULD. But often, THEY DON’T. If your solution is only to moralize against human foibles, you’re both assured of continued employment, and insuring the wronged have no effective redress.”

    [Disclaimer – This is not to endorse what Stanley Fish writes. It is to point out the utter futility of everyone-be-perfect.]

  2. Seth, nowhere have I said that I expect everyone to be perfect. But I don’t buy your prescription either, which seems to be: everything is hopeless.

    I realize that people often don’t do what they should. What I’m trying to do is persuade them that it’s worth trying, and that it’s not so hard. I’m not only moralizing. I’m giving people some ideas and tools so they can do the right thing.

  3. Dan, you don’t *expect* everyone to be perfect, you *propose* it – for heaven’s sake, look at the title here “Fix … is in our attitudes, not laws”. When you say “What I’m trying to do is persuade them that it’s worth trying”, you’re doing an ambiguity in the meaning of the word “them”. I presume you mean that you want people to be appropriately skeptical. But it can also read as you are saying to someone who suffers reputation damage from anonymous sleaze that you are recommending (to the hurt person) that they try making the entire world sufficiently skeptical. Which, realistically, is absurd.

    When you say “I’m giving people some ideas and tools so they can do the right thing.”, that’s all well and good. Then what about people who DON’T do the right thing? What about systems (and businesses) which encourage and reward people for not doing the right thing? If your response is to simply re-iterate everyone-be-perfect, yes, that’s hopeless.

    Consider this analogy: “Fix for the financial crisis is in our attitudes, not laws”. And then you write a long article saying there absolutely cannot be additional financial regulation, since innovation in finance has prospered under Section 230 immunity, I mean the repeal of the Glass-Steagall Act. The Consumer Financial Protection Bureau gets denounced as Big Government, any limits on banks are said to be a violation of contact rights. Instead, your solution is, drumroll, people should be smart, conservative, investors and homebuyers. Don’t buy more than you can afford. Live within your means. Save more. And here’s some tips and tools for better planning.

    See the problem? Being a better investor and homebuyer is laudable. But it would be ludicrous to attempt to prevent another crisis by only telling people they should do that (plus little web javascript calculators, and start-ups, a blog, wiki, and other such gimcracks).

  4. Seth, your analogy is absurd. The financial industry is a collection of, for the most part, giant institutions that affect an enormous part of our economy, and they absolutely need regulating. We don’t, however, attempt to regulate small loans between friends and relatives. I do believe people should be smarter and more conservative as investors and homebuyers, and I think the public has realized that the financial sector cannot be trusted; people are much more skeptical than they used to be and that’s a good thing.

    Defamation laws apply to digital content just as much as traditional media. Judges are not reluctant to issue orders requiring sites to divulge information about posters of plainly defamatory material. The thing about free speech is that we don’t limit it before the fact.

    Do you want to regulate the media, and speech, the way we properly regulate (or at least should regulate) the financial industry? If you do we have nothing we can remotely discuss further.

  5. Dan, don’t you agree that if in theory, every individual investor was perfect, there would be more no financial crises? Thus, if you can see the problem with then concluding that the way to prevent another financial crisis is only to try to have every individual investor be perfect, why can’t you see the problem with concluding that the solution to a reputation crisis is only to try to have every individual reader be perfect? (n.b. I’m including related social-media gimmicks, start-ups, etc, under this rubric).

    Regarding “giant institutions”, isn’t it a standard trope that “power-laws” and cascading echo chambers can affect – negatively and falsely – a person’s reputation? In fact, I believe that’s what part of the book above discusses.

    When you claim “Defamation laws apply to digital content just as much as traditional media.”, this is in fact incorrect in a crucial way, with Section 230 aand the court decisions which have effectively expanded it. Again, also a topic.

    See, for example http://blog.ericgoldman.org/archives/2008/04/ripoff_report_f.htm

    (my emphasis)
    “So if the Phoenix New Times had published the allegedly defamatory third party quotes only in its online edition, it should have been clearly and fully insulated by 47 USC 230 (as the plaintiffs well know because they helped create some of the expansive 230 precedent that would apply). In contrast, the plaintiffs can bring this lawsuit only because the Phoenix New Times also chose to publish the exact same article in its dead trees edition. I understand that 230 creates this medium-specific dichotomy in defamation law, but if it were my decision, I wouldn’t want to take advantage of it.”

    By the way, one of the arguments made against regulation of the financial indutry is in part that it’s a regulation of speech – e.g. claiming bond ratings are “opinions”, and thus fully First Amendment protected.

    Regarding “regulate the media”, I’m simply arguing that opposing any institutional attempt to address people being libeled and hurt from it because the “fix … is in our attitudes, not laws” is what is absurd.

    1. Seth, this is not about theory, though you keep trying to accuse me of having my head in the clouds. I’m working to improve literacy (in several ways), not pretending were going to have a perfect world but doing my best to help people navigate the imperfect one we live in.

      Again, Section 230 explicitly does not protect the person who does the defaming. It does protect, insignificant and valuable ways, the people who provide a platform for speech but who do not control it (though they are entirely free to, if not encouraged to, exercise editorial judgment).

      Looking at the case you cite via the Goldman blog post—a case that was dismissed—I don’t understand Goldman’s point. An online news organization that quotes, in an article it produces, someone making a defamatory statement is just as liable as it would be if it did so in print. If the allegedly defamatory statements were made in a random reader’s comment below the story, as opposed to in the story itself, the news organization would have more protection—as it should.

      If you believe that everyone providing a forum for public conversation should be a gatekeeper, legally liable for anything said by anyone involved in the conversation, then you have a vision of speech that is way more restrictive than the one Congress, to its credit, found appropriate for this new medium. If that is what you believe, just say so and we can end this thread.

      1. Dan, the key is this:

        “An online news organization that quotes, in an article it produces, someone making a defamatory statement is just as liable as it would be if it did so in print.”

        No, this is incorrect. It is false. It is wrong. The current law is completely and totally the opposite. THAT’S A PROBLEM.

        Here’s another section on this topic from Goldman (my emphasis):

        http://blog.ericgoldman.org/archives/2008/04/roommatescom_de_1.htm

        “47 USC 230 was enacted in 1996 during the height of “cyberspace exceptionalism,” the belief that the Internet was unique/special/different and therefore should be regulated differently. 47 USC 230 is a flagship example of such exceptionalism. It creates rules that really differ between the online and offline worlds, such that publishing content online may not create liability where publishing the identical content offline would. The medium matters.”

        I wish I were better at interpersonal communication, but I have to live with my flaws, so please excuse the following bluntness due to frustration:

        There are lawyers discussing this in part in a book. I’ve now taken the time to give you two bite-sized explanations from a leading lawyer in the field. YES, this is about theory, you have your head in the clouds, because you’re saying something that’s incorrect about the legal core of the debate, and won’t believe it’s wrong, because that contradicts your theory of how things SHOULD be.

        Spare me the ranting. I can counter-rant: Do you think every media organization should be able to maliciously and knowingly continually libel a person, with the mere figleaf that they find someone in the entire world (possibly *anonymous*, possibly with no assets) who said that libel first?
        (n.b. – no, no, can’t be so, isn’t valid – see above discussion)

        There is a *legal*, institutional, problem here that is being dismissed by preaching “We are the ones who need to take more responsibility”.

  6. Seth, what I wrote is not wrong. There is absolutely no exemption from defamation law for one’s own speech—which specifically includes quotes from other people in articles (videos, etc.) a site chooses to publish, as opposed to comments posted by other people. Why do you persist in claiming otherwise?

    You’re being a troll this point. Stop, or leave.

    1. > Why do you persist in claiming otherwise?

      Because that is the situation with the prevailing interpretation of Section 230, as discussed with several cases, and hence forming a key part of the problem, especially when aggravated via anonymity (i.e. not required for the problem but makes it that much worse). I’ll skip another reference, because you said this:

      > You’re being a troll this point. Stop, or leave.

      Please apologize for calling me a troll. It is absolutely uncalled for, and abominable in these circumstances.

      Your statement – “which specifically includes quotes from other people in articles (videos, etc.) a site chooses to publish” – is wrong when it comes to online / section 230 rules, as I just noted in quoting Eric Goldman’s post on this topic – “So if the Phoenix New Times had published the allegedly defamatory third party quotes only in its online edition, it should have been clearly and fully insulated by 47 USC 230”.

      You seem to have issued me an ultimatum where you demand I concede to you – “or leave”.

      This is what I absolutely hate about the bogosphere – as an A-lister, you always have the option to “win” by declaring yourself right, personally attacking me, and there’s nothing I can do about it. One debates them only at their sufferance. An A-lister can only be wrong if they admit it.

      And if you trash me from “on high”, even if you later apologize, the damage will have been done.

      In such circumstances, I’ll take “leave” :-(.

  7. Before you go, read this:

    http://www.citmedialaw.org/legal-guide/immunity-online-publishers-under-communications-decency-act

    It makes clear that your interpretation is not the prevailing view of section 230.

    I do regret saying that you’re being a troll, as you obviously do believe what you’re saying. You are however being extremely disagreeable to no useful purpose.

    And I’ll ask the question again that I’ve asked several times: do you believe people and businesses who run websites should be required to prescreen every single thing that anyone else posts on their site, even if the purpose of the site and/or feature of the site is to give people a place to post what they created or have a conversation? You still haven’t answered that question.

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