Rhetoric, Norm Creation and the CDA

In a previous post, I discussed how the rhetoric of free speech shapes norms of Internet conduct. Orin Kerr countered that a discussion of the rhetoric of free speech should also acknowledge the rhetorical impact of using the language of civil rights. I think Kerr is using the rhetoric of rhetoric to compare two very different uses. When I referred to the rhetoric of free speech, I was commenting on how the use of the terms “free speech” by Internet libertarians is (ironically) a conversation stopper. It is a conclusion that assumes that all Internet communication is in fact (1) speech and (2) constitutionally protected. When Citron uses the language of civil rights, she is doing so for more than rhetorical purposes. She discusses specific situations and explains why they should constitute civil rights violations. The effect is not to shut down discourse in a merely rhetorical way but to open the door to a possible remedy if the conduct/communication in fact constitutes a civil rights violation and is not outweighed by First Amendment concerns. In other words, Citron explains and argues why certain conduct should constitute a civil rights violation whereas the rhetoric of free speech does not bother with such explanations – it simply assumes. Of course, not all hurtful Internet communication is a civil rights violation and of course, much Internet communication (even if hurtful) is constitutionally protected speech. That’s not what I meant when I referred to the rhetoric of free speech (and that is not what Citron argues in her article). What I was referring to was the presumption in those two words – free speech — that all postings are protected speech and that anyone who suggests otherwise is a big crybaby (or a big red communist). Which brings me to the issue of norm creation…(cont’d after the jump)

Why should we accept that “anything goes” in the online world when it is not acceptable in the offline world? (The question is rhetorical). I’m not talking here about Citron’s article or governmental regulation (at least, not yet) — I’m referring simply to social norms. While some may argue that the government should not attempt to tame the Internet, that shouldn’t mean that one shouldn’t regulate one’s own conduct out of a sense of decency and self-respect or that one shouldn’t try to persuade others to adhere to a more civil code of conduct. Somewhere along the line, advocating civil behavior –socially responsible and even polite discourse –has morphed into “censorship” or “suppression” and all Internet activity has been lumped into the monolith “speech.” Funny enough, it was the government that was instrumental in this collapse of distinctions when it specifically exempted websites from responsibility for content, treating them as public forums yet permitting them to maintain private status. I’m of course referring to section 230 of the Communications Decency Act. With this law, Congress and the courts expressly permitted online businesses to adhere to norms that differ from those of offline businesses. There were good reasons for doing so at the time that Congress adopted section 230, but the courts seem to have interpreted that statute too far in the wrong direction. While I don’t advocate doing away with section 230 immunity altogether, I do think the scope of 230 immunity should be more narrowly construed. Online businesses are not free speech forums – after all, they certainly take advantage of their status as private businesses when they enter into contracts with their users which allow them to sell data to third party marketers. Section 230 immunity should not extend to the responsibility that businesses have for their own practices. Online businesses should be expected to act reasonably, just as offline businesses are. What constitutes “reasonableness,” however, should depend upon the context. A website like craigslist that has millions of postings a day should not be expected to screen content, for example. By contrast, websites like Dontdatehimgirl.com or EncyclopediaDramatica that encourage user misconduct should be forced to accept the consequences of their socially irresponsible business models and not be allowed to hide under cover of 230 immunity.

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