Author: Michael Froomkin


CCR Symposium: What is To Be Done?

(Some of what follows probably repeats, perhaps with different emphasis, comments by David Fagundes and James Grimmelmann, Paul Ohm, and others.) I suspect that in the main existing civil and criminal law (perhaps including civil rights law) provides about the right level of civil and criminal liability for people who post vile things about others online. That belief is shaped by two more fundamental convictions:

A. It’s important not to over-deter speech as it is to deter libel and other tortious or possibly illegal speech, and the costs of getting this wrong can be very high.

B. The rules governing online conduct in general ought to be the same as those regulating the same activity offline whenever possible – and in the case of speech in particular, that (in the absence of the scarcity rationale underpinning some broadcast regulation) the First Amendment should not distinguish between technologies, be it a printing press or a network.

On the other hand, I also think anyone who asserts this – and thus asserts that the recommendations in Cyber Civil-Rights ought to give us pause – should face the strongest case for the other side, which I take to rest primarily on three complementary assertions:

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CCR Symposium: The Right to Remain Anonymous Matters

Orin Kerr says he was brought in to be a mild dissenter. I fear I may have been set up to be the pig at the garden party.

So let me start by saying that Danielle Citron’s Cyber Civil Rights is a wonderful paper. It is right about many things, although I’d be prepared to wonder whether the expression-action distinction might not reflect something true, real, and valuable, or whether the current balance between libel and the ‘wild west’ of unregulated speech is really so bad. But never mind all that: for present purposes let’s stipulate that Cyber Civil Rights is right about all its facts — including (as I indeed have no doubt she is right) about the terrible harms being wreaked online by evil people at the expense of innocent victims who are (wildly) disproportionately female and minorities. And let’s further stipulate that the article is right about its novel and exciting statutory arguments concerning how existing civil rights law might be used to deal with that – stuff I had fun thinking about and enjoyed teaching too.

Nevertheless, I have deep, deep problems with the paper’s proposed remedy — because there’s something critical that the paper leaves out.

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