Law in the Internet Society
-- SharmilaAchari - 19 Dec 2008

One of the main reasons I enrolled in this class was to discuss the scope of First Amendment protections regarding information disseminated through the internet. The situation that brought this issue to my attention was the controversy surrounding AutoAdmit? .com, a graduate school message board. AutoAdmit? was created to be a forum for graduate students to communicate with students at other schools and freely express “whatever brilliant or foolish thoughts they have.” Most users posted under pseudonyms, allowing them to remain anonymous. While many of the posts on the board related to academics or careers, some of the posts contained derogatory statements about women, minorities, and gays. In particular, many threads started to form about two female Yale law students, using their real names, making graphic comments about their breasts and creating spurious accounts of their sexual activity. Both students requested that the site’s administrators remove the threads, but were told that the posts would not be removed, on First Amendment principles. Eventually, both sued the site and its administrators for defamation, infliction of emotional distress and copyright infringement. One of the students also asserted that these threads precluded her from getting a job with a corporate law firm because these threads appeared when interviewers conducted a Google search on her name.

This case generated wide-spread attention in the legal community and resulted in one of the site’s administrators having his job offer from a large law firm rescinded over his involvement with the site. While the plaintiffs bemoaned the unfairness of having lies spread about them with no recourse, the defendants entrenched themselves behind their First Amendment argument that they would not sanction the censorship of any ideas on the board. So who has the better argument? In traditional libel cases, most legal scholars condemned the posts as unprofessional and distasteful, but fully supported their right to be published.

In the past, the distinction between libel and slander also served as the line that distinguished fact from opinion. Statements made in newspapers and books are often subject to fact-checking before publication, thus lending libelous statements a presumption of truth. Moreover, correction mechanisms, such as retractions, exist for when false or defamatory statements are printed. The advent of the Internet, however, has created a new paradigm where the line between obvious facts and opinions is blurred. A site like AutoAdmit? can appear to be a source of valid information, even though the comments would be given little deference if heard in regular conversation. Moreover, the fact that Google searches produce AutoAdmit? postings further helps to legitimize the postings on the site.

In a world where opinion can be construed as fact and authors can remain anonymous, what protections exist for the victims of such slander? Are they even entitled to protection? No one is entitled to freedom from ideas or opinions that offend them. Nor are we protected from others making negative comments about ourselves. However, the Internet allows false information to be spread instantaneously to everyone in the world- something the First Amendment framers never anticipated. The attacks to which the two Yale law students were subjected on AutoAdmit? are akin to a loss of liberty. Having to constantly defend oneself from such slander and live with the consequences of these statements without being able to control them deprives a victim of her right to live her life freely and to achieve success through her merits. Our society is built on the principle that a person’s life is dictated by the choices he makes, but in this case, the lives of these two students are now dictated by other people’s actions and words.

I believe that the Yale law students and other victims of online slander are entitled to the same protection as other defamation victims. The students have sued the message board and the individual commenters, but since AutoAdmit? did not require users to submit their real name, the probability of recovery against the actual comment authors is slim. I would propose legislation that would require message-boards to collect valid personal information from users before they can register or use the site. Such data would be protected by applicable privacy laws, but could be disclosed for legal actions, such as in the AutoAdmit? case. Some may argue that this would infringe on commenters’ privacy rights, but the Constitution does not guarantee the right to anonymous speech. To allow commenters to hide behind pseudonyms in online forums invites moral hazard because it allows them to operate in a consequence-free environment while others pay the price. Just as the person who yells fire in a crowded theater is liable for his speech, so should be online commenters whose reckless speech causes tangible harm to others.

The students at the heart of the AutoAdmit? case must live with the damage to their reputations for the rest of their lives and will likely never recover against those who caused it. We risk this situation repeating itself if adequate protections are not implemented to ensure that online commenters can be unmasked in order to face the consequences of their speech. While privacy concerns of all internet users are paramount, these rights must be subordinated to the general equitable principle that one person cannot be allowed to reach out to injure another while hiding behin

Looks like part of your conclusion didn't get posted.

You say "the Constitution does not guarantee the right to anonymous speech." However, the Supreme Court has often struck down laws prohibiting anonymous speech. See, e.g., McIntyre? v. Ohio Elections Commission, 514 U.S. 334 (1995); Talley v. California, 362 U.S. 60 (1960). This is a speech issue, not just a privacy issue, and thank goodness: "applicable privacy laws" in the United States are mostly nonexistent.

-- DanielHarris - 19 Dec 2008

In your world, the Federalist Papers would never have been published.

-- KateVershov - 22 Dec 2008

If you only put a single carriage return after each paragraph they don't get split by the Wiki... I took the liberty of adding extra lines so that the paragraphs show up; I hope you don't mind.

I strongly disagree with your thesis, but I thought you highlighted a very interesting feature of internet speech in your third paragraph. As you say, we are used to publication lending some degree of authority to speech. On the internet, this is clearly not true, but old habits die hard. I think this would be an excellent topic for a paper. One may see the same fallacy in many of the law articles published today: other articles are cited as proof of claims, but these articles are themselves fanciful creations that may or may not have any empirical evidence behind them. A similar phenomena is Fox News style circular reporting: news reports on unresearched claims made by others, which are then used as evidence that the original claim is true.

-- TheodoreSmith - 4 Jan 2009


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r4 - 05 Jan 2009 - 01:26:43 - TheodoreSmith
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