Cyberharassment’s Waterloo

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5 Responses

  1. I think the suggestion that Facebook should be treated just like a book publisher in terms of First Amendment principles is mistaken. Facebook and other major internet corporations have a significant amount of control over speech, to the extent that a decision by Facebook about what’s allowable and what’s off-limits could possibly be more damaging to free speech principles than a federal law making the same decision. That’s especially true since sites like Facebook can make their decisions in private, without anyone realizing what they’re doing.

  2. St. John Smythe says:

    You suggest that “schools . . . can regulate their members’ speech in order to fulfill the institutions’ purposes,” but I am not sure that is quite right. In the most recent student speech to reach the Supreme Court, the Court explicitly rejected an argument to that effect. Justice Alito, whose vote was necessary to form a majority, explained this point in a concurrence joined by Justice Kennedy:

    The opinion of the Court does not endorse the broad argument advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school’s “educational mission.” See Brief for Petitioners 21; Brief for United States as Amicus Curiae 6. This argument can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs. The “educational mission” of the public schools is defined by the elected and appointed public officials with authority over the schools and by the school administrators and faculty. As a result, some public schools have defined their educational missions as including the inculcation of whatever political and social views are held by the members of these groups.

    During the Tinker era, a public school could have defined its educational mission to include solidarity with our soldiers and their families and thus could have attempted to outlaw the wearing of black armbands on the ground that they undermined this mission. Alternatively, a school could have defined its educational mission to include the promotion of world peace and could have sought to ban the wearing of buttons expressing support for the troops on the ground that the buttons signified approval of war. The “educational mission” argument would give public school authorities a license to suppress speech on political and social issues based on disagreement with the viewpoint expressed. The argument, therefore, strikes at the very heart of the First Amendment.

    Morse v. Frederick, 551 U.S. 393, 423 (2007) (Alito, J., concurring). Tinker’s substantial disruption test still leaves some room for schools to impose speech regulations designed to further institutional goals, but a few recent appellate decisions cast doubt on how far the disruption rationale can go in terms of combatting garden variety online harassment.

    This is really an aside given your focus on private sector intermediaries, but it struck me as an important one nonetheless. I suppose I find it important because what strikes one person as “cyberharassment” might well be core political speech to another. I gather your work will have far greater impact if you acknowledge this reality in your recommendations.

  3. Ari Waldman says:

    Mr. Smythe. Thank you for your comment! And I agree with your assessment. My wording in the post suggested a kind of absolutism that I do not see in the opinion other than in student-speech concurrences from Justice Thomas (very much like Justice Black’s thoughts in Tinker). But, a teleological exception to the traditional liberal free speech values does not require absolutism or no limits on the school’s ability to decide what is its purpose. But, your point is spot on and most appreciated!

  4. Gordon Hull says:

    I take it that one easily formulated argument says that allowing various platform sites to regulate speech by their members advances free speech by fostering associations and communities in which like-minded members feel comfortable talking to one another, etc. etc. There’s two obvious problems with this approach. One is the risk of group polarization and insularity, along the lines that Sunstein talks about. The other – and I think this is more interesting, given where it sounds like you’re going – is what to do when the sites are big enough that they become nearly public, or semi-public. FB is a good candidate here; as danah boyd says in one of her blog posts, FB presents itself as a utility, which suggests that one might regulate it as such.

    The normative argument here is pretty straightforward – if we want to foster inclusive communities, and if those communities arise through sites like FB, then sites like FB ought to either be compelled to be inclusive, or to self-regulate in that direction. But the legal argument is not going to fare as well – recall ALA, where the Supreme Court endorsed a federal law requiring public libraries to install filtering programs; these demonstrably had disparate impacts on minority groups (well, maybe not demonstrably – but I think the case is pretty good: LGBT sites would be blocked at much higher rates than others, for example). Part of the court’s rationale was that the Internet couldn’t be considered a public forum in the relevant sense. So encouraging self-regulation is fine, but it’s going to be hard to impose any sort of governmental stick: direct regulation of intermediaries obviously isn’t going to work (newspapers have the right to an editorial opinion, etc.), and even indirect regulation seems to fail in the case where it would be most important.

    In other words, I think your argument implies that some case law is pretty wrongly decided – but I’m not sure how to square the case law with any policy proposal other than encouraging self-regulation, which strikes me as unlikely to work.

    Final, quick thought: if you want an Aristotelian alternative to Rawls, one that gets at a more substantive notion of political participation, you might try the capabilities approach out of people like Martha Nussbaum. I don’t know if that’s been done here, but she generates substantive versions out of a lot of Rawlsian rights. There’s issues with her work, but I think it might have some traction on topics like this.