CCR Symposium: Late to the Party …
I’m inexcusably late to the party, having been metaphorically standing in the corner and listening to the discussion(s) taking place in the center of the room. [I should say that I found the online symposium format more than a little disorienting and difficult to track -- but that's a subject for another day]. The discussion, for me, was disturbing and a little depressing — not necessarily a bad thing for a discussion to be, of course. On the merits, I don’t know that I have a great deal to add to what was already said — I stand solidly with Michael Froomkin on these questions: the cure proposed is (1) worse than the disease, (2) deeply unconstitutional, and (3) would have pernicious global side-effects.
What disturbed me was neither the manner in which the discussion took place (which was civil and informative), nor Prof. Citron’s proposals (which are similarly thoughtful and provocative, though I am obviously not a big fan of them), but rather that the values of free expression seem to have so little purchase within this community of intelligent, thoughtful, and reasonable people — and if it’s got little purchase here, my hopes for it elsewhere are correspondingly diminished. Reading the various comments, one gets an impression of a First Amendment that is more, but not much more, than a nuisance standing in the way of progressive social legislation. [And I should hasten to add: I mean this as a comment on the emergent properties of the discussion itself, not as a criticism of any particular commentator, or of Citron's original proposals] One commentator — actually articulating one of the stronger positions in support of free speech that was expressed here — framed the debate this way:
“Rather than attempting to understand cyberharassment as conduct unprotected by the First Amendment, I would instead characterize it (along with threats, defamation, and other forms of harassment) as speech that nonetheless may be regulated when it poses substantial harms without significantly furthering traditional First Amendment values.”
If that’s the government’s burden — to show merely that speech “poses substantial harms” and that it does not “significantly further First Amendment values” before it can suppress it — freedom of expression is in serious trouble. More to my point: if that represents a relatively strong- First Amendment view in a reasonable sample of the law professor community — and not just any law professor community, but the law professor community in a country that can reasonably lay claim to having possibly the strongest constitutional tradition of protecting free speech — things are bleak indeed.
The harms described in Citron’s paper are very real and “substantial”. But to my eye — and, as Froomkin also noted, these may amount to no more (or no less) than value judgments, incapable of resolution by reasoned arguments alone — this does not justify the catastrophic consequences for free expression that would flow from abandoning the principle of anonymity. The notion of “anonymous but traceable” communication is, for all intents and purposes, an oxymoron; when people know that all of their communication is traceable to them, they will no longer speak in the way that they would speak when they know that it is not. A world of fully traceable communication is Bentham’s Panopticon, Foucault’s “faceless gaze” — “the instrument of permanent, exhaustive, omnipresent surveillance, capable of making all visible.” That is a very steep price to pay to protect against these harms. “Freedom of expression does in some cases depend on people reasonably believing they can speak without being called to account for it. That may sometimes be disreputable, even evil. Sometimes it may help save a life, or the Republic.”