Monday, February 28, 2011

Ken Paulson: Speech gets ugly online, but it's still free

  It’s not nice to defame the dead.

  The admonition not to speak ill of the deceased goes back centuries, but today anyone with Internet access and attitude can take to the Web to even scores or attack total strangers.

  Karla O’Malley of Overland Park, Kan., saw that firsthand. She happened upon a Christmas Eve car accident and tried to comfort a boy injured in the crash. When he died, she visited a memorial website for the young man and was horrified to see that someone posted a comment wishing the boy had suffered more. In an interview with the Kansas City Star, O’Malley said, “There is a time and place for mourners to be left alone.”

  It’s not an isolated case., a national memorial site, estimates that almost 5% of its almost 1 million “guest book” posts each month have to be blocked, either for copyright violation or meanness.

  “There are thousands of attempts each month to post something mean-spirited,” according to Hayes Ferguson, chief operating officer of

  “Because our guest books are intended to provide comfort to the family rather than cause additional pain, we are committed to preventing people from disparaging the deceased on our site.”

  O’Malley thinks she might have a remedy. She is seeking support for a federal law that would ban demeaning and mean-spirited comments on memorial sites.

  It’s an understandable impulse, but that’s a law that is unlikely to be passed and certainly wouldn’t be constitutional. It runs right into the First Amendment guarantee of free speech. Laws can punish libel of the living, but there’s no recourse for rudeness.

  Of course, attacks on the deceased are just a small part of the uncivil discourse on the Web. There’s a subset of Internet “trolling” — the posting of inflammatory comments to get a reaction — that attacks others with racist, sexist and hateful comments, all rendered with impunity and the cloak of anonymity.

  So why is this ugliness protected? Why should Americans have a right to post comments anonymously?

  Actually, anonymity has a noble side. In fact, the first stirrings of freedom in this nation relied on anonymity.

Anonymity as a shield
  The signers of the Declaration of Independence didn’t release a copy of the document with their names on it until after the new nation’s army began to win some battles. Anonymity helped protect them from charges of treason.

  The Federalist Papers — writings that made the case for ratification of the Constitution — were written by Alexander Hamilton, James Madison and John Jay under aliases.

  Building on those historic roots, the U.S. Supreme Court has consistently found free-speech protection for anonymous expression. In 1995, the Court wrote, “Anonymity is a shield from the tyranny of the majority. ... It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular.”

  In 2002, the Supreme Court invalidated a law that would require registration of identities with the government before heading out to talk to people door-to-door. In other words, free speech isn’t dependent on identifying yourself.

  There’s the dilemma for the offended: People are posting hurtful and ugly comments that many find troubling, but the government can’t (and shouldn’t) try to do anything about them.

  The truth is that the free flow of online opinions — even the deeply offensive and emotionally jarring — is a vibrant sign of a democracy at work. You don’t have to be smart, insightful or compassionate to speak your mind, no matter how much it irritates the rest of us.

  Increasingly, news and other websites are striving to elevate the content of comments online. Among the strategies:

-One option is to ban comments entirely. This certainly eliminates ugly postings, but it also wipes out any constructive conversation and removes a check on flawed journalism.

-Many sites have posted clear standards and rely on self-policing by members who flag particularly offensive comments. Some sites are experimenting with ways to have the most constructive comments and commenters be more visible.

- The most effective — and expensive — way to ensure a constructive community of commenters is through strict moderation. Nothing gets posted unless it’s first reviewed by an editor.

-Finally, more websites are considering forcing commenters to register and post comments by name. There’s a downside for site managers, though. As the New Haven Register told its readers, “The problem is research showing that forcing people to register to comment dramatically decreases the size of the online audience, and that’s an area we’re trying to grow, not shrink.”

Which comments to permit
  The common denominator in all of these solutions, of course, is that they’re being implemented by website managers and not the government. That’s exactly how it should be. The First Amendment gives sites the right to determine their own content, including deciding which comments pass muster. In turn, abusive commenters have the right to free speech, but that doesn’t mean that websites have to give them a soapbox.

  There’s a strong possibility that the marketplace itself will help enhance the online marketplace of ideas. If sites provide guidelines, enforce them and create an environment conducive to the sharing of opinions, they should see greater engagement and have a better setting for readers and advertisers. The sites where comments are simply an endless string of epithets, attacks and counterattacks run the risk of losing their audiences.

  In the end, we’ll get the kind of online discourse we demand — or deserve.

Comment? E-mail me.

  About the author: Ken Paulson is the president of the First Amendment Center and a founder of 1 for All.

  This article was published by the First Amendment Center.

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