Alexander Meiklejohn, Blog Comment Policies, and Free Speech
posted by Neil Richards
I read with interest a couple of weeks ago the discussion on this and other law professor blogs about comments policies – whether to allow comments, whether to moderate them, and when and whether to edit and/or delete them. The discussion reminded me of Alexander Meiklejohn’s famous conception of free speech as a moderated town meeting, where the diversity and quality of discussion was more important than any individual right to speak. Meiklejohn argued that “the First Amendment … is not the guardian of unregulated talkativeness” and that the free speech guarantee was “not that everyone shall speak, but that everything worth saying shall be said.”
I think something similar applies to the moderation of blog comments – moderation in the pursuit of good discussion is a healthy thing. Of course, there is always the danger that thin-skinned or intellectually dishonest moderators might edit in order to come out better in an argument, but this risk is lessened by the fact that there are lots of blogs, and (at least in the case of law blogs) there is a fairly robust set of professional norms and reputational consequences operating in the background. So I think blog comment policies (like the one on this blog) are perfectly fine (even though I there us some irony in that the blog comment policy having comments turned off!). But like Meiklejohn’s moderator, as long as the discussion is being moderated constructively, there are real gains from numerous moderated discussions. In fact, since different discussions can operate under different conditions of moderation, some discussions can be tightly moderated (ie, books and newspapers), others can have little or no moderation, and at the opposite extreme there is the wiki model, where even the statements of others are subject to revision and alteration. A wide variety of discussions and forms of discussion is, I think, the key to a robust and healthy discourse.
One natural objection to this line of argument is that we’re not really talking about the First Amendment here, since all of the blogs and fora of discussion are private actors. I’ve increasingly come to believe that the values of free discussion and debate are too important to be left to the First Amendment. (I make a mild form of this argument here in a recent article). Newspapers, blogs, email, water-cooler chats and other forms of relatively public and relatively private discussion are the building blocks of a vibrant expressive culture, and if we only think about free expression from the perspective of avoiding government anti-censorship, we are missing (at least) half of the world. For this reason, I think discussions about issues like blog comment policies are centrally the concern of free expression, and such discussions can benefit immensely from a little First Amendment theory.
Blog comments are turned off from this post (just kidding!)
May 7, 2009 at 9:22 am
Posted in: Blogging, Constitutional Law, Cyber Civil Rights, First Amendment
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Responses (3)
Howard Wasserman - May 7, 2009 at 12:37 pm
I once described this as the difference between free expression and the First Amendment–the former referring to broad theoretical ideas about expression and its functions and values, the latter about the narrower conception put into practice by the First Amendment. Of course, free expression (more so than the First Amendment) runs into more direct conflicts between competing speakers.
Seth Finkelstein - May 10, 2009 at 9:46 am
Yes, what Howard Wasserman said. I believe the problem of how to have a constructive discussion is very important, but it’s also incredibility difficult. But call it something else – “Constructive Discussion Theory”, or some such. Don’t ever talk about “First Amendment”. That thoroughly inflames a certain type of knee-jerker, who absolutely, must, must, then write a message about how the First Amendent is only state action, etc. etc. Which then means someone tends to write in reply something like the Meiklejohn quote you give above (which I happen to think is quite wrong about the specifics of the First Amendment), and the thread explodes – sort of lesson 1 in the problem.
Please note there are two very well-known poles of this problem:
1) A completely open discussion is vulnerable to deliberate disruption
2) But the owning poster tends to be a very bad judge of the difference between deliberate disruption and harsh but correct criticism
Which also leads to:
Appeals to a multitude of possible discussions is often a cop-out to avoid engaging the problem.
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