CCR Symposium – The Rhetoric of Free Speech
posted by Nancy Kim
Danielle Citron presents compelling reasons for applying civil rights laws to online conduct. Without meaning to legitimize the speech/conduct dichotomy, I deliberately choose to use the word “conduct” rather than “speech” to move away from the rhetorical power of labeling all communication as speech. Speech connotes words that are constitutionally protected and devoid of aggression — “just words” — but as Citron’s article makes clear, some online communication is more like a fist in the face than an expression of an idea of public interest. Yet, proposals to curb or regulate online communication are usually met with cries of censorship and ominous warnings that our democratic society is endangered by politically correct fascists. On the contrary, it seems that Internet libertarians are using the rhetoric of free speech to vastly expand existing conceptions of speech to include all manner of previously unprotected communication or conduct, such as the posting of naked pictures of others taken without their consent, death threats, false accusations and outright lies. One of the strengths of Citron’s article is that it calls out such conduct for what it is rather than what some would prefer to call it. Words can and do cause harm and digital words create unique harms due to the unique nature of Internet communication. What happens online unfortunately doesn’t stay online. While posters may be able to play roles that enable them to act more aggressively and distastefully than they would offline (due to the disinhibition effect of disassociative anonymity), their targets must live their daily, offline lives with the painful consequences of what these role playing posters say to and about them.
Another problem with the rhetoric of free speech is that First Amendment doctrine was not shaped with online discourse in mind. For example, time, place and manner restrictions don’t apply to the Internet. A secondary effect of such restrictions of course is that they temper impulsive speech. Not only are physical and temporal barriers missing when it comes to Internet postings, the ease of postings and the acceptability of anonymity encourage a lack of restraint.
Those who use the rhetoric of free speech in the online context pretend that Internet communication is “just like” offline communication for purposes of constitutional protection, ignoring the unique effects of online distribution; yet they turn around and claim different standards or norms apply to Internet communication. The claim that all posts are constitutionally protected “free speech” or that threats are “just words” has an insidious endogenous effect in that it shapes still-developing norms of what is acceptable online discourse. Citron’s article demands that we stop these developing norms before they become too firmly rooted. The question of how we do that is of course complicated and defies easy answers, but that doesn’t mean we shouldn’t try. In another post, I will discuss one way we should try which focuses on the role (and responsibility) of websites in shaping those norms.
April 14, 2009 at 9:17 pm
Posted in: Cyber Civil Rights
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Responses (2)
Marc J. Randazza - April 16, 2009 at 11:18 am
Some online communication is more like a fist in the face than an expression of an idea of public interest.
I disagree. Online communication that you don’t like can be analogized to a “fist in the face,” but online communication you like will still always be called “free speech.”
Yet, proposals to curb or regulate online communication are usually met with cries of censorship and ominous warnings that our democratic society is endangered by politically correct fascists.
I agree. I make those cries. In fact, you may be quoting me.
On the contrary, it seems that Internet libertarians are using the rhetoric of free speech to vastly expand existing conceptions of speech to include all manner of previously unprotected communication or conduct,
Huh? Really? Such as….
such as the posting of naked pictures of others taken without their consent,
Hmmm… I don’t think I have ever heard such a cry from even the most strict libertarians. However, if you can find a link or a quote, I’ll gladly re-evaluate my position.
Of course, if you’re talking about someone who takes their clothes off in a public place, streaks a bar or a boulevard, thus giving up any claim to privacy, I suppose I would side with the libertarian view on that. But, I’m really not sure what you’re talking about there.
death threats,
Find me a single person who thinks that death threats should be protected speech. I’m talking about true threats — not hyperbole.
false accusations
See New York Times v. Sullivan. Sometimes even false accusations are protected. That’s been with us since at least 1964. However, false accusations lodged at private citizens are still defamatory in nature. I think that this might be another example of only complaining when one’s particular ox has been gored.
and outright lies.
It isn’t a new concept that outright lies are still protected speech. That’s why we can’t get Fox News taken off the air (no matter how much we’d love to). That’s why the Washington Times still gets to publish. That’s why Danielle Citron’s lie-laden “scholarship” is still protected speech.
First Amendment doctrine was not shaped with online discourse in mind.
No? Where have you been for the past decade? It most certainly has been shaped with online discourse front and center. If you are talking from the perspective of Scalia/Thomas original intent, then consider the Party Papers and the state of discourse that existed at the time the First Amendment was actually drafted.
I do agree that we can’t simply wrap every word in the First Amendment and call it protected. However, I can’t think of anyone with any credibility whatsoever who has called for protection for true threats. I have read some theorists, like Jon Katz, who claim that defamation suits are incompatible with the First Amendment, and I find Katz to be somewhat persuasive, but aside from him and a few other outliers — I don’t think anyone is calling for an end to defamation law.
You say Speech connotes words that are constitutionally protected and devoid of aggression, but that just isn’t supportable. All speech, all words, are presumptively protected until shown to be otherwise. And, the First Amendment does not demand the absence of aggression. That’s just silly… like big shoes, big red wig, and lots of people in a teeny tiny car with calliope music playing.
Marc J. Randazza - April 16, 2009 at 12:38 pm
In your later post (which doesn’t allow comments) you really do hit the nail on the head in this statement:
I’m referring simply to social norms. While some may argue that the government should not attempt to tame the Internet, that shouldn’t mean that one shouldn’t regulate one’s own conduct out of a sense of decency and self-respect or that one shouldn’t try to persuade others to adhere to a more civil code of conduct.
I couldn’t agree more.
You later say:
Somewhere along the line, advocating civil behavior –socially responsible and even polite discourse –has morphed into “censorship” or “suppression” and all Internet activity has been lumped into the monolith “speech.”
Now this is just not supportable. Yes, a few idiots will say that any criticism of their speech equals censorship. Example: http://randazza.wordpress.com/2008/01/27/copyright-vs-free-speech-in-cease-and-desist-letters/
However, I don’t think that anyone with a higher IQ than that of a butternut squash would say that if Cain says something nasty and Abel tells him that he’s being an asshole that Abel is infringing upon Cain’s First Amendment rights. The marketplace of ideas is a two-way street.
One should regulate one’s own conduct to try and be as civil as possible. And, when you don’t like someone’s level of civility, of *course* you should exercise your own First Amendment rights to call them on it.
But the problem is that not everyone is that hard-working. There is a lot of laziness that follows this debate. Try preaching this more broadly! I conducted a little experiment: I went to a message board that was quite commonly the scene of bigoted, racist, and nasty speech. I posted under my real name and did just what you’re suggesting. You know what? It worked.
Sure, some speakers just told me to go fuck myself. But others, after a gentle and friendly scolding, would post “you’re right, I should be more civil,” or “you’re right, I can see how what I said was wrong.” I accomplished far more by showing some leadership and setting an example than I ever could have with a lawsuit.
I won’t ever get a publication out of it. Nobody will break their arm patting me on the back for recycling tired old Dworkin theories, but I think that I did a little good there… and proved one of your implied theories (that right speech and right actions will inspire others) and disproved another (that trying to use influence would be seen as a free speech violation).
Try it yourself. You’ll likely be surprised what you can accomplish with a little bit of reason.
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