HERE ARE TWO stories about the Internet. The week before last, the crippled economy coughed up a gift for picked-on college students across the country: It shut down Juicy Campus, a notorious website where campus gossips nationwide were invited to hold forth anonymously. "Just remember, keep it Juicy!" the home page had exhorted. Posters had duly obliged, and many students had found their social skills, weight, grooming habits, sexual orientation, and/or promiscuity to be the subject of gleefully vicious discussion by unseen online classmates. In a healthier economy, it's unclear if anything could have closed down Juicy Campus - university administrators and even state prosecutors were eager to take it on, but had all but conceded that they had few legal options, and the website had been rapidly expanding the number of its member campuses. And then there is this: Last month, someone posted a map showing the names, home locations, and occupations of thousands of people who gave money to support the passage of Proposition 8, the ballot initiative outlawing gay marriage in California. A number of these Proposition 8 supporters have since reported threatening e-mails and phone calls. Speech now travels farther faster than the Founding Fathers - or the judges who created much of modern free speech law - could have dreamed. The Web has brought a new reach to the things we say about others, and created a vast potential audience for arguments that would once have unfolded in a single room or between two telephones. It has eaten away at the buffer that once separated public and private, making it possible to expose someone else's intimate information to the world with a few keystrokes, or to take information that would formerly have been filed away in obscure public records and present it digestibly as a goad to collective political action. One of the results has been the advent of a new culture of online heckling and shaming, and the rise of enormous cyber-posses motivated by social or political causes - or simple sadism. Now, some legal scholars are beginning to argue that new technologies have changed the balance of power between the right to speak and the right to be left alone. At conferences, in law review articles, and, increasingly, in the courts, some lawyers are suggesting that the time has come to rethink some of the hallowed protections that the law gives speech in this country, especially if that speech is online. The proposals vary: Some focus on restricting material that can be posted online or how long it can stay there, others on whether we should be less willing to protect online anonymity. More ambitious schemes would have courts treat a person's reputation as a form of property - something to be protected, traded, and even sold like any other property - or create a legally enforceable duty of confidentiality between friends like that which exists between doctors and their patients.

At stake is the basic question of what we will allow people to say and do online, whether it's on a message board, a Craigslist ad, or a YouTube video - and who gets to set the rules governing what's OK and what's not. As the Web grows increasingly interactive, the system of informal and formal rules that determines appropriate behavior is only beginning to emerge, and thinkers on both sides of the debate agree that courts can go a long way toward shaping it. The argument over what to do about online speech, in other words, is an argument over whether the Web's unruly nature is something to be celebrated or tamed. "Right now, it's pretty much like the Wild West, and we need to do something to combat that norm," says Daniel Solove, a professor at George Washington University and leading advocate of reining in online speech. Free speech advocates caution that these sorts of measures, no matter how carefully drawn up, are likely to backfire, creating a snarl of lawsuits. For all the pain of being exposed or attacked online, the far greater threat, these thinkers believe, is that the Web becomes a place where the rules are set by the most litigious and the thinnest-skinned, stifling the free flow of ideas and opinions that today define it. Relaxing the protections for online speech, argues Kurt Opsahl, a lawyer with the Electronic Frontier Foundation, an advocacy group, "would relegate comment on the Internet to only that provided by large and powerful and very cautious media." Proponents of the new privacy protections, however, insist that all they are doing is helping to level the playing field between private citizens and those who, for whatever reason, are using the Web to expose others' secrets to the wider world. . . . Modern American privacy law arose, in part, out of concern over an earlier transformative technology: the Kodak "snap camera." For the first few decades after cameras were invented, they were large and expensive, and nobody could take your picture unless you sat still for several minutes. When the Kodak hit the market in 1884, it changed all that - the new camera was cheap and comparatively small, and it took a picture in an instant. "Suddenly, your photograph could be taken without your permission, or even without your knowledge," says Lawrence Friedman, a professor at Stanford Law School and prominent historian of privacy law. And if that picture was compromising in any way, it could easily find its way into one of the many cheap, lurid newspapers that made up the era's burgeoning "penny press." Alarmed by this new landscape, two young Boston lawyers, Louis Brandeis and Samuel Warren, wrote an article in the Harvard Law Review that served as the foundation for most of the state laws that today protect privacy. (Brandeis would go on to serve on the Supreme Court.) Brandeis and Warren's basic argument, innovative at the time, was that people should be able to sue others for the wrong of exposing their private lives to public scrutiny.

According to concerned legal scholars like Solove, the power and pervasiveness of the Web have now unsettled the privacy law regime that the Kodak helped create. Not only does the Web allow for anonymous, immediate posting of information, but search engines make that information retrievable for curious people everywhere. And whether it's an address, a lewd photograph or video, or a written insult, it remains on the Web until someone actively removes it, and even then copies can survive elsewhere. "We can now readily capture information and images wherever we go, and we can then share them with the world at the click of a mouse," Solove wrote in his 2007 book, "The Future of Reputation." "Somebody you've never met can snap your photo and post it on the Internet. Or somebody that you know very well can share your cherished secrets with the entire planet." The answer, Solove believes, lies in giving people more explicit control over information about them. As Solove sees it, the Web highlights an existing set of problems with how American law treats the divulging of intimate details - whether they end up on the Internet or not. For example, American courts tend to assume that once you tell someone a secret, unless that person is your doctor or lawyer or minister, it's basically public. It's therefore futile to sue a former lover for breach-of-confidentiality for telling someone about your sexual hang-ups, even if that "someone" is thousands of readers of a blog post. "There's a notion in the law that if you tell a secret to another person you just risk that they might betray you," Solove says, "that if you tell a friend or spouse your secret and they spread it, you shouldn't have trusted them, it's tough luck and you should find new friends. I think that is problematic." There is an alternative. In England, courts enforce a far broader duty of confidentiality, upholding breach-of-confidentiality lawsuits against loose-lipped ex-spouses and lovers. Solove would like to see the United States move to a legal regime more like that one, so that we're not held hostage by the questionable trustworthiness of our friends. Such a significant shift makes legal scholars who are more protective of speech deeply uncomfortable. Eugene Volokh, a law professor at UCLA and a free speech and cyberlaw expert, sees that model leading to an almost comical set of limits on conversations. "Let's say you are talking to your new girlfriend about past relationships," he says. "You tell her you feel you've been hurt by an ex-girlfriend, and she asks you to tell her about it. You then have to say, 'I'm sorry, but I'm legally bound not to reveal anything about that relationship.' "