posted by Ari Waldman
I begin my Co-Op blogging stint with deep appreciation for Danielle Citron’s invitation and for the entire Co-Op community’s indulgence. I am honored to be a small part of a wonderful online community that brings out the best in us and, for that matter, Web 2.0. My name is Ari, I am a Legal Scholar Teaching Fellow (just like a VAP) at California Western School of Law and I am a student of the interplay among the First Amendment, the Internet and other modern technologies and their effects on minority populations, like gays and lesbians. I go on the professor job market this Fall. I have a weekly blog (every Wednesday) over at the country’s most popular gay news site, Towleroad, for those interested in perspectives on LGBT legal issues for a mass audience. I also have a healthy relationship with physical fitness and an unhealthy relationship with the store Jack Spade. If there’s counseling for the latter, I’d appreciate a reference. Kidding…
For my month of blogging, I hope to engage with you in a few conversations, mostly about cyberharassment and the First Amendment, and hopefully with a healthy dose of humor.
My current project is the third in a series of projects about cyberharassment. The previous articles, available here, address the effects of cyberharassment on LGBT youth, argue for the use of affirmative “soft power” rather than after-the-fact criminalization to solve the problem and create a new analytical framework for adjudicating student free speech defenses to a school’s authority to punish cyberaggressors. Now I am considering the effect that cyberharassment, particularly harassment of a minority group, has on civic participation and the realization of democratic values. I argue that Internet intermediaries self-regulation of their sites and services to filter out hate, sexual harassment and other aggression conforms with long-standing First Amendment values.
Like President Obama likes to say, let me be clear. I do not mean to suggest that the First Amendment applies as a limit on the activities of private actors like Facebook or MySpace or Google; rather, I think that contrary to libertarian First Amendment scholars, we can expect these online intermediaries to regulate content and say that doing so reflects the democratic interests that underly the First Amendment.
Here’s the draft argument in brief that I am currently working out: The view of the Internet as an unencumbered and unfettered town square deserving the same Rawlsian liberal approach to free speech is wrong. Every online interaction is governed by intermediaries of varying kinds, all of which are the filters through which our online speech makes it through to our online communities. Traditional intermediaries have the power to regulate content consistent with the First Amendment, especially when not doing so would interfere with their and their users’ ability to participate in civil society. We see this more Aristotelian/communitarian approach to First Amendment values in intermediary jurisprudence — from publishers to book stores, and from schools to workplaces. And, like schools and workplaces, which can regulate their members’ speech in order to fulfill the institutions’ purposes, so too can online intermediaries like Facebook.
This project is in the early stages, and I always welcome comments/suggestions/evisceration of the argument. More to come…
I look forward to continuing this and other discussions with this splendid community.