Monday, May 6, 2013

The Offensive Internet: Speech, Privacy, and Reputation / Saul Levmore and Martha C. Nussbaum, eds. -- Cambridge, Mass.: Harvard University Press, 2010

The following are excerpts from a review that is forthcoming in The Journal of Information Ethics.

Most of us learned at an early age that “sticks and stones will break your bones, but names will never harm you,” but we also discovered that the saying was often cold comfort. Disregarding verbal abuse or defamatory remarks is not easy. Fortunately, we usually are able to find a more or less adequate way of responding to insults, if only to allow the passage of time to dull the pain. The Internet has made this much more difficult. On the web, insults, defamation, and invasions of privacy can immediately spread to a world-wide audience and last seemingly in perpetuity. The Offensive Internet: Speech, Privacy, and Reputation, edited by Saul Levmore and Martha Nussbaum, presents thirteen chapters that address harm, speech, and privacy issues raised by the Internet. The authors are, with a few exceptions, law professors at some of the leading U.S. law schools. So unsurprisingly, the chapters are consistently of high quality. They approach the issues at various levels of abstraction, ranging from philosophical discussions to examinations of concrete instances of harm. Most of the authors advocate specific legislative or judicial remedies for the harms under discussion.


First Amendment absolutist certainly will find the treatment of free speech in The Offensive Internet inadequate. Their judgment is likely to be based on a high assessment of the importance of speech and the slippery slope that regulation poses. Some may downplay the gravity of the harms that occur on the internet, making the dangers of censorship relatively greater. Their critique, however, needs to address the important distinctions made in The Offensive Internet, particularly in the section on speech. An important hurdle that the critics will need to overcome is the growing maturity of the Internet. In its initial manifestation, the Internet was shielded from regulation in order to promote its promise for enhanced, democratic communication. Today, however, it is perhaps the primary medium of mass communication around the world. As such, it no longer needs special protections. It is now appropriate to employ the widely accepted methods of holding Internet posters accountable for speech that would otherwise fall outside of First Amendment protection.


In general, The Offensive Internet is a valuable exploration of some of the more unpleasant aspects of unregulated speech and the consequences that follow from situations in which people can be unaccountable for their behavior. Fortunately, the authors offer us an impressive variety of means to address the problems. The volume does not, however, adequately address two important issues. The first has already been mentioned: protections against harms, protections of the freedom of speech, and protections of privacy can only be established equitably when the relative vulnerability of the parties is recognized. The early chapters’ emphasis on harms to women and minority groups is a move in the right direction, but the recognition of power dynamics tends to disappear in later chapters which seem to assume a power-blind approach. This is particularly clear in the chapters on privacy and reputation. An equitable legal regime should more completely protect the privacy of individuals, while leaving powerful institutions, like government agencies and major corporations, open to public scrutiny.

The second important issue that is not sufficiently addressed is whether the internet entrenches false information or exhibits self-correcting tendencies. Several of the authors acknowledge the fact that assertions (true or false) reside on the web indefinitely, that misinformation is often intentionally posted on the web, and that people tend to post (or re-post) what they wish to be true rather than what is well-justified. At the same time, the on-going activity of editing and re-editing wikis and blogs can also allow for the slow construction of reliable information. If this latter feature of the web becomes more dominant, then the concerns over false information undermining corporate or even personal reputations should decreased. Addressing these epistemic questions, however, would enlarge significantly the scope of the work, but much could have been gained by including at least a chapter or two on the broader philosophical background that lies behind the legal concerns that are central to the work.

In all, The Offensive Internet is a valuable contribution to the understanding some of the effects the Internet is having on individuals and society, and it offers important critical analyses of the current speech regime that may be too liberal for the good of individuals and society. Above all, free speech absolutists would do well to read and reflect on the work.