Stanley Fish on education, law and society.

In McIntyre v. Ohio Elections Commission (1995) the Supreme Court overturned a statute requiring any person who prints a notice or flyer promoting a candidate or an issue to identify the communication’s author by name. Justice John Paul Stevens, writing for the majority, grounded his opinion in an account of meaning he takes from an earlier case (First National Bank of Boston v. Bellotti): “The inherent worth of . . . speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.” Or, in other words, a writing or utterance says what it says independently of who happens to say it; the information conveyed does not vary with the identification of the speaker.

There are at least two problems with this reasoning. First, it is not true that a text’s meaning is the same whether or not its source is known. Suppose I receive an anonymous note asserting that I have been betrayed by a friend. I will not know what to make of it — is it a cruel joke, a slander, a warning, a test? But if I manage to identify the note’s author — it’s a friend or an enemy or a known gossip — I will be able to reason about its meaning because I will know what kind of person composed it and what motives that person might have had.

In the same way, if I am the recipient of a campaign message supporting a candidate or a policy, my assessment of what I am reading or hearing will depend on my knowledge of the sender. Is he, she or it an industry representative, a lobbyist, the A.C.L.U., the Club for Growth? The identity of the speaker is part of the information and is therefore part — a large part — of the meaning. (“Consider the source” is not only commonplace advice; it is a theory of interpretation.)



The practice of withholding the identity of the speaker is strategic, and one purpose of the strategy (this is the second problem with anonymity) is to avoid responsibility and accountability for what one is saying. Anonymity, Martha Nussbaum, a professor of law and philosophy at the University of Chicago observes, allows Internet bloggers “to create for themselves a shame-free zone in which they can inflict shame on others.” The power of the bloggers, she continues, “depends on their ability to insulate their Internet selves from responsibility in the real world, while ensuring real-world consequences” for those they injure.

Nussbaum is writing as a co-editor of, and contributor to, a new set of essays on the dark side of the Internet titled “The Offensive Internet.” The question that drives the volume is “what can be done about irresponsible information” spread by the Internet, a medium that allows slander to “be done with a few keystrokes, with complete anonymity, and . . . with no fear that the Internet provider on whose website the slur is found will somehow be held responsible for incorrect . . . or defamatory statements”? In the course of the volume the Internet is characterized as a cesspool, a porn store, a form of pinkeye, a raunchy fraternity, a graffiti–filled bathroom wall, a haven for sociopaths, and the breeder of online mobs who are no better than “masked Klan members” in their determination to “interfere with victims’ basic rights.”

The authors make these charges against the background of the standard honorific description of the Internet: it is the ultimate realization of “the marketplace of ideas,” that non-physical space dedicated “to the emergence of truth.” Cass Sunstein invokes this hoary metaphor only to call it into question. Rumors cascade, Sunstein explains, when someone relies on what someone else has said and then spreads a falsehood as truth. The Internet multiplies the effect exponentially: an “initial blunder . . . can start a process by which a number of people participate in creating serious mistakes.” Rather then producing truth, the free and open marketplace of the Internet “will lead many people to accept damaging and destructive falsehoods,” and unless there is “some kind of chilling effect on false statements,” the “proper functioning of democracy itself” may be endangered.

An unconstrained marketplace of ideas is often said to facilitate informed decision-making by providing all the information, even erroneous information, that is out there. But how, asks Brian Leiter in a powerful essay, is the process of deliberation helped by the anonymous poster who reports falsely “that Jane Doe has herpes” and announces “that he would like to sodomize her?” The Internet and the real world, Leiter concludes, “would both be better places” if Internet providers were held accountable for the scurrilous and harmful material they disseminate.

How might that be managed? The answer given by the authors in this volume involves the repeal or modification of Section 230 of the Communications Decency Act, which says that no provider of an Internet service shall be treated as the publisher of information provided by another. That is, the provider is not liable for what others have said, and courts have interpreted that section as immunizing providers even when they “have knowledge that [a statement] is defamatory or invasive of privacy.”

Saul Levmore (Nussbaum’s co-editor) suggests that immunity might be conditioned on the willingness of a provider either to take down a message after notice of its falsity or defamatory character has been given, or “to enforce non-anonymity” and thus open the way for an injured party to seek redress. The law, writes Anupam Chander, “should allow the individual to find information to lead her to the person who committed the privacy invasion.” As it is now, with an expansive reading of Section 230, “the law no longer puts any obstacles in the way of the Sociopath” who, traveling on the Internet, can go anywhere and spray venom that lasts forever. (Leiter)

But, as Geoffrey Stone reminds us in his essay, putting obstacles in the way of anyone’s speech (even the speech of sociopaths or perverts or subversives ) has been frowned on by the Supreme Court ever since New York Times v. Sullivan (1964), which holds that, at least as regards public officials, debate should be uninhibited and wide open even if it is “vehement” and “caustic” and contains both “factual error” and “defamatory content.” In subsequent decisions, the category of “public officials” was widened first to include “public persons” and then to include persons who wander into the ambit of a public event, in short, almost everyone.

The idea (which goes back at least as far as Milton’s Areopagitica) is that false and defamatory speech openly published will provoke counter speech and lead to correction; the truth will ultimately prevail. (Justice Louis Brandeis: “Sunshine is the best disinfectant.”) But however likely that happy outcome may be in the world of books and newspapers (and I have always thought it extremely unlikely), the special conditions and powers of the Internet conspire against it and the more likely outcome is the one prophesied by Alexander Pope in the final lines of “The Dunciad”: “Light dies before thy uncreating word . . . / And universal darkness buries all.”

What is remarkable about this volume is that the legal academics who make the arguments I have rehearsed are by and large strong free-speech advocates. Yet faced with the problems posed by the Internet, they start talking about “low value” speech (a concept strong first-amendment doctrine rejects) and saying things like “autonomy resides not in free choice per se but in choosing wisely” and “society needs not an absence of ‘chill,’ but an optimal level.”(In short, let’s figure out which forms of speech we should discourage.)

Perhaps the most amazing statement is made by Daniel J. Solove when he declares that “the law is hampered because it overprotects free speech.” The conventional first-amendment wisdom is that free speech cannot be overprotected, but that wisdom is put on trial by these thinkers. Some years ago, I wrote a book titled “There’s No Such Thing as Free Speech and It’s a Good Thing, Too.” This book could be titled “There is Such a Thing as the Free Unregulated Internet and It’s a Bad Thing, Too.”