The cost of speech

Libels laws are outmoded and increasingly dangerous, for they threaten to chill and silence the voice of the public even as we finally have our forum to speak: the internet.

Oh, I know that some would argue we need libel laws now more than ever because, thanks to the internet, anybody can say anything about anyone. See a £17,200 libel award just granted to a politician against a Yahoo user who called him a “lard brain,” a “nazi,” and much worse. See the John Siegenthaler Sr. case in Wikipedia, in which one misfit inserted a scurrilous and ludicrous charge against him into his encylopedia biography as much hand-wringing ensued. And see this list of legal actions against bloggers in the U.S., including Banks v. Milum, the first known blogging case to go to trial; the blogger lost, to the tune of $50,000.

I say we need libels laws less today. Law professor and blogger Susan Crawford once suggested over coffee (and I hope she doesn’t mind my continued quoting of this) that libel laws are out-of-date in a time when the victims of defamation have the means of response via the internet that they never had in print or broadcast. Keep in mind that in America, where we treasure free speech to an admirable and fanatical degree — the FCC and its indecency policing excepted — we are luckier than most. It is harder to bring a successful libel action here. And Section 230 protects hosts of interactivity from actions against them as a result of content put on their services by others. Britain and other nations aren’t so lucky.

So the fear of litigation and loss is starting to pile up. And my fear, in turn, is that this gives counsel to media and technology companies as well as individual citizens the world around the arguments to kill interaction and citizens media just as they come into their own — because they are becoming just too risky. It is already gutsy to host Comment is Free; when does it become too gutsy? I dread returning to a world of centralized, controlled, filtered, and official content. We, the citizens, will lose our voice because no one will want to risk speaking or letting us speak.

This is a certainly case of throwing the baby out with the bathwater. Consider Wikipedia: Because just one fool added something foolish there, is that sufficient reason to discard more than one million articles filled with generous human knowledge? If one twit leaves an insult in one blog comment on is that cause to shut off the conversation there? Do we want a world where anyone can tell horrible lies about anyone? Of course, not. But do we also want a world where our courts are clogged with efforts to mediate playground fits of name-calling (fits that few people hear, by the way)? Do we need the courts to confirm for us that the bozo ranting in the corner is, indeed, a bozo? Rarely. But these few episodes of bad temper have given the internet cultural cooties: Interaction is judged on the actions of the few twits and not on the value of empowering the people as a whole to speak.

One response to this is education. We need to offer the practitioners of citizens’ media and interactivity help in understanding how to protect themselves in libel, defamation, and other legal issues. In the U.S., I’m about to work with some people who will, at long last, bring such help online. (Law bloggers be warned: I’ll soon be appealing for your help.)

But the real response must be to update the law for an entirely different media world controlled by everyone and not by the few. If that happens through the courts, the damage done in the meantime will be crippling or, in some cases, fatal for interactivity.

We need to effect change legislatively — and not just to libel law but to any law that regulates speech. I have little hope of that happening on its own. After all, politicians are often the objects — often deservedly — of much of the ire expressed by citizens online. In New Jersey, a state legislator proposed a law to require internet services, including online newspapers, to obtain verified names and addresses of commenters or face the liability for anything they say. He said he wanted to bring civility to this nasty internet; one wonders why he hasn’t wanted to outlaw shouting at football games. But the bill was hooted down by bloggers as absurd, unenforceable, and unconstitutional and the lawmaker slunk away.

Let’s say we actually found an intelligent lawmaker with the courage to defend free speech and try to change the law. He or she would be accused of defending internet horrors. It’s quite like the problem of the Federal Communications Commission and its indecency fines against Howard Stern, Janet Jackson, and words starting with F or S: Anyone who tries to stand up and fight for the First Amendment and free speech will be portrayed as the friend of smut.

So how do we give cover to lawmakers and politicians to stand up for — or at least not stand in the way of — the right of people to speak through this new medium? How do we get them to govern for the rule, not the exeception? How do we update the law to understand the new world of connectivity and conversation? There are no easy, immediate answers. But if we do not begin the discussion, we will leave the fate of the internet interactivity to the litigious.

So I would like to see a summit on the principles of the law and speech and interactivity in the internet age. Before we recast the laws, we must understand what is at stake and what we are trying to protect — as well as what we no longer need the law to protect. Because we need to have this discussion at that level, I think it needs to be a worldwide meeting of great legal minds and advocates of interactivity as well as the companies — media, telecommunications, online — who fear that it is their deep pockets at stake. It can happen in a hotel or it can happen online. Any takers?

: LATER: Geanne Rosenberg, head of the journalism program at CUNY’s Baruch and an attorney to boot, said this about that:

Media companies have been united in opposing libel actions for many years (through MLRC [Media Law Research Center], formerly LDRC) in part to make it very difficult for plaintiffs’ lawyers to succeed and thus to really discourage lawyers from taking on libel cases. If bloggers, their insurance companies and other non-media company defendants start losing cases and/or paying out settlements, that will actually help to fund what could quickly mushroom into a force of plaintiffs’ lawyers eager to take on these cases, cases that would have become potentially lucrative as a result of any payouts. So the risk you raise is very real. There’s also a risk that careless postings by bloggers that lead to litigation could also result in legal decisions that set precedents damaging to free speech/free press interests. So the risk is two-fold — harmful legal precedents and a new funding source for lawyers bringing libel suits.