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Why Traditional Legal Doctrines Apply Differently In Cyberspace

Tuesday, Apr. 16, 2002

Of all the Constitution's amendments, it is the First Amendment that has been most affected by the advent and growth of the Internet - and rightly so, because the Internet is all about reading, writing, and the transmission of information and ideas.

Unfortunately, however, many of the First Amendment's doctrines and concepts have failed to make a smooth transition to the Internet - for it is a very different arena for free speech than that which existed when the Bill of Rights was written over two hundred years ago.

It used to be that a limited number of newspapers enjoyed regular, repeat readers. Now hundreds of thousands of websites are visited by sporadic "browsers" who may visit once a week, once a month - or simply once. It used to be that newspaper editors, in effect, made decisions as to what people would read, attempting to ensure that both sides of a given debate were aired. Now people by and large decide for themselves what they read on the Internet.

Finally, it used to be that anonymous speech was rare, and defamation could effectively be punished. Now, on the Internet, that is no longer the case. Granted, September 11 may change things, as I discussed in a previous column, by causing a government crackdown on anonymity, but for now, anonymity is still possible. As a result, defamation law is essentially unenforceable on the Internet if the speaker is willing to resort to anonymity.

How have these changes altered the application of traditional First Amendment concepts?

The "Marketplace of Ideas" Doctrine: Truth Is Not the Only Commodity

Traditional First Amendment doctrine is based on one basic metaphor, that of the "marketplace of ideas." As the metaphor suggests, the doctrine holds that ideas compete in the world of speech, and gain adherents there. Moreover, they gain adherents based on their truth; a true statement, or a good idea, will always prevail over a false statement, or a bad idea, in the end.

Accordingly, government intervention relating to speech is rarely warranted. The market will solve the problem "naturally," without intervention - defeating any bad idea and bringing good ideas to prominence.

This metaphor was never entirely accurate. While there is indeed a marketplace for ideas, it does not necessarily favor the true and good ideas. It may instead demand the entertaining or even the sensationalistic. Or it may demand ideas that are comforting, for they are in line with beliefs that we already hold. For example, it may demand ideas that flatter us or bolster our pride - pro-American words and ideas, for example, are in high demand now.

On the Internet, it is evident that a joke, with no truth value at all, can circulate much faster than a simple truth. Far worse, rumor with no truth to it at all - such as the claim that Jewish workers did not arrive at the World Trader Center on September 11 - can nevertheless be widely disseminated. Entertainment websites can compete with, and best, news sites for Internet readers' attention.

Can it be doubted, at this point, that the "marketplace of ideas" values many commodities, and truth is only one of them? The basic First Amendment idea that in the marketplace, the truth will out, has been empirically disproven.

The "Counterspeech" Concept: Why It Doesn't Work on the Internet

Another important First Amendment doctrine is the idea of "counterspeech." The argument is, again, that the government need not intervene to punish false or harmful speech. But this time, the argument against intervention is not only that the false idea will ultimately lose out to a true one, but also that the false idea will be discredited by speech that directly rebuts it.

The rebutting speech - "counterspeech" - consists of direct responses that will neutralize the damage done by the initial, false speech. The counterspeech will supposedly be effective because the very same readers who were the audience for the initial falsehood will hear the counterspeech, too.

On the Internet, however, reaching the very same audience at two different points in time is virtually impossible. Readers consult different websites on different days, based on Google searches or their own whims. Sites often have their own agendas, which do not include being a forum for contrasting views; not every site, in short, is an OpEd page. As a result, the idea that a reader who hears speech will later also hear counter-speech on the very same point, is becoming far less persuasive.

On the Internet - in part because of linking - a reader who hears speech is much more likely to hear "repeat speech" that reiterates the same point, than he or she is to hear contradictory "counterspeech." Following links tends to deepen, or extend, the point in the original page one is reading - not contradict it.

Moreover, chatrooms of like-minded individuals may take "repeat speech" to new heights. Chat rooms, after all, tend to be organized around areas of common interest, not around subjects for diverse debate.

The truth is that on the Internet, "counterspeech" is no longer an effective way to ensure truth and to correct the harm from prior false statements. And retractions, too - which effective counterspeech ideally might prompt - are similarly toothless on the Internet.

But with the Internet, content subscriptions are very rare, and reading can become more varied, and less habitual. In the shuffle, retractions may be lost. A browser who checks a certain site once a month may never sees its retractions at all, even if they are left posted for a week.

In short, even if counterspeech is so effective it inspires a retraction, the retraction itself may be ineffective. Counterspeech simply cannot be trusted to ensure truth on the Internet, because audiences are in so much flux, and subscriptions are so unusual.

The Death of Defamation Law on the Internet

Traditional First Amendment law had a limited, third weapon against false speech in its arsenal, as well. The marketplace of ideas and the availability of counterspeech, it was thought, would together defeat false or pernicious speech - and if they did not, state defamation laws would take over.

The Supreme Court's landmark decision in New York Times v. Sullivan limited the reach of state defamation law. Nevertheless, even after Sullivan it remained the case that knowingly false speech could lead to a substantial damage award against the speaker.

But not anymore. On the Internet, speech can be made entirely anonymous through anonymity-granting sites. If it is, the speaker can never be located and thus can never become the defendant in a defamation lawsuit. In some cases, the lack of a penalty may encourage truth, by allowing speech without fear. But in other cases, it may also discourage truth by removing accountability.

Moreover, anonymity also removes a key way that a reader can ascertain whether speech is trustworthy - by knowing its source, and the source's history of veracity or the lack thereof. A notorious liar may speak anonymously, and no one will know the difference.

For these reasons, like the "marketplace of ideas" metaphor and counterspeech, defamation law is not longer a guarantor of truth on the Internet.

Should the Internet Be Regulated According to New First Amendment Doctrines?

In my view, the answer is no. But if we oppose regulation of the Internet, we should do so honestly - not on the assumption that truth will somehow "naturally" surface. It may not, and false statements may truly cause harm.

Still, regulation - which could potentially chill speech in the most exciting and most democratic free speech medium to come along in decades - also carries its own harms. And these harms very likely outweigh its benefits. Moreover, a balancing analysis is not by itself enough, for we should tread especially careful in regulating when constitutional rights are at stake.

Thus, we should continue to accept a laissez-faire free speech system for the Internet. But we should do so with a full awareness of its genuine costs, particularly the potential costs to truth and accuracy.

Is there any new guarantor of truth on the Internet that may supersede the traditional three - the marketplace of ideas, counterspeech, and defamation law? There very well may be.

The democratization of speech on the Internet may itself serve as a force for truth - one that First Amendment doctrine has yet to take into account. Just as voting became more fair when the landownership requirement was remove and the franchise expanded, speech may become truer when one need not be wealthy to command a large audience. Unless one thinks pedigree is a guarantee of veracity, the democratization of the Internet cannot help but make progress towards truth.

Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Currently a freelance writer, she published a memoir, The Bad Daughter, in 1998. Her forthcoming novel Three will be published in French translation by Actes Sud.

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