Author: Nancy Kim

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Rhetoric, Norm Creation and the CDA

In a previous post, I discussed how the rhetoric of free speech shapes norms of Internet conduct. Orin Kerr countered that a discussion of the rhetoric of free speech should also acknowledge the rhetorical impact of using the language of civil rights. I think Kerr is using the rhetoric of rhetoric to compare two very different uses. When I referred to the rhetoric of free speech, I was commenting on how the use of the terms “free speech” by Internet libertarians is (ironically) a conversation stopper. It is a conclusion that assumes that all Internet communication is in fact (1) speech and (2) constitutionally protected. When Citron uses the language of civil rights, she is doing so for more than rhetorical purposes. She discusses specific situations and explains why they should constitute civil rights violations. The effect is not to shut down discourse in a merely rhetorical way but to open the door to a possible remedy if the conduct/communication in fact constitutes a civil rights violation and is not outweighed by First Amendment concerns. In other words, Citron explains and argues why certain conduct should constitute a civil rights violation whereas the rhetoric of free speech does not bother with such explanations – it simply assumes. Of course, not all hurtful Internet communication is a civil rights violation and of course, much Internet communication (even if hurtful) is constitutionally protected speech. That’s not what I meant when I referred to the rhetoric of free speech (and that is not what Citron argues in her article). What I was referring to was the presumption in those two words – free speech — that all postings are protected speech and that anyone who suggests otherwise is a big crybaby (or a big red communist). Which brings me to the issue of norm creation…(cont’d after the jump)

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CCR Symposium – The Rhetoric of Free Speech

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.