The Offensive Internet: Speech, Privacy, and Reputation Edited by Saul Levmore and Martha Nussbaum

The Offensive Internet: Speech, Privacy, and Reputation, Saul Levmore and Martha Nussbaum, eds. (Cambridge, Mass.: Harvard University Press, 2011), 312 pp., $27.95 cloth, $18.95 paper.

In this new volume, two distinguished University of Chicago law professors have joined forces to edit a provocatively titled collection of essays about the Internet. As they observe in their coauthored introduction, the Internet “has succeeded in remaking us as inhabitants of a small village” (p. 1). However, there is little romance in this cozy trope that Levmore and Nussbaum deploy to frame their project. We are indeed close-knit now. The Internet has stitched together geographically, politically, and culturally distant men, women, and children into an intensively interactive community. But it is a Hobbesean village, bereft of decorum and solidarity. Moreover, when one calls to mind the extraordinary stories of Amy Boyer and Tyler Clementi, whose murder and suicide, respectively, were closely tied to commercial and social abuses of the Internet, one quickly understands that Internet communication can be not only offensive but also flat-out dangerous.

The book’s contributors are a respected group of mostly senior and mid-career American legal scholars, and so it is not surprising that much of the book looks at legal issues. The so-called AutoAdmit scandal that rocked the normally civil world of elite law schools a few years ago doubtless contributes to the saliency among law professors of the problems addressed here. AutoAdmit is an online law school discussion forum, and between 2005 and 2007 two female Yale Law students were subjected to harsh insults and lies from anonymous participants in AutoAdmit threads. A lawsuit filed in federal court sought to force an Internet service provider to reveal the IP addresses of offensive posters to help trace their identities and bring them to justice. As documented in Doe I and Doe II v. Individuals Whose True Names are Unknown, 561 F. Supp.2d 249 (D. Conn. 2008), one set of posts was especially vicious. In it, the author declared that a female Yale Law student fantasized about having sex with her father while others watched, encouraged others to punch her in the stomach while she was seven months pregnant, was infected with sexually transmitted diseases, and had abused heroin.

The Offensive Internet focuses on two major types of offenses that can wound feelings and destroy reputations: antisocial exercises of freedom of speech and invasions of privacy. Online anonymity for Internet users contributes to a woeful lack of oversight and accountability in a domain of increasing importance to everyday life. Fighting online incivility is made harder by the fact that a federal statute, the Communication Decency Act, appears to insulate Internet service providers, electronic forums, blogs, and the like from liability for third-party offensive conduct: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

Contributors to The Offensive Internet seek to explain and assess the implications of the troubling state of affairs in which Internet users are unmuzzled and abusive. Focusing on lessons learned from the AutoAdmit case, Nussbaum warns of “objectification” and “cultures of cruelty” that infect online communications (p. 83). However, Daniel Solove, in his chapter stressing the problem of long-term reputational losses stemming from Internet communications, argues that Internet openness does have a bright side. For example, he writes, “People can now spread their ideas everywhere without reliance on publishers, broadcasters, or other traditional gatekeepers” (p. 17). Danielle Keats Citron characterizes the Internet as a “double-edged sword,” a place where free speech can flourish but “cyber mobs” trample civil rights. The inveterate blogger (and University of Chicago professor) Brian Leiter coins a colorful term, “cyber-cesspools,” to refer to “those places in cyberspace—chat rooms, websites, blogs, and often the comment sections of blogs—that are devoted in whole or in part to demeaning, harassing, and humiliating individuals” (p. 155).

Yet one man’s cesspool is another man’s bathhouse. Filth does not necessarily repel. Indeed, many people seem to love irreverent online gathering places, of which AutoAdmit is but a mild example. In an essay revisiting the First Amendment landmark Cohen v. California (1971), John Deigh shines a light on the cultural shifts that have made the brouhaha in the Supreme Court over one lone instance of the “F” word look quaint.

All the lawyers represented in this volume want to do something about the offensive aspect of the Internet. Several argue for urgent action in order to ensure that the young are not burdened forever by their youthful indiscretions, given that online data does not just disappear. As Geoffrey R. Stone notes: “Once the information is out of the bottle, once we share it with others, once others know it, we can no longer hope to put it back. If that era ever existed, it is now past” (p. 194). Lamenting that the marketplace of ideas will often fail to produce the protective truth, Cass Sunstein does not take a strong position on whether salvation from such Internet misuse will come through law or norms. Nonetheless, he argues that “something to chill false statements” is needed “not only to protect people against negligence, cruelty, and unjustified damage to their reputations— but also to ensure the proper functioning of democracy itself” (p. 106).

In his contribution to the volume, Levmore points out that while little current law regulates life on the Internet, some relief may come from outside the legal realm. He predicts that over time Internet offenses could abate as anonymity ceases to be the norm: “more Internet entrepreneurs will limit participation or require identification” (p. 67). Ruben Rodrigues expresses the unproven belief that already “the power of individual reputation and online social norms can go a long way toward preventing the abuse of personal information among users of social networking sites,” and he advocates solutions that do not coerce Internet users with the heavy hand of law. According to Rodrigues, “A legal regime that addresses privacy concerns on social networks should not limit the ability of individuals to willingly give up traditionally private information” (p. 241).

But markets, prudence, and norms may not go far enough, fast enough. Addressing the offensive Internet may require a lot more, especially since both giving away and taking away privacy are seen as part of the problem. Privacy rights protect wants, but also needs. The conversation about remedies is not over until we have considered interventions that include nudging and imposing traditional privacies on audiences that do not know they should want them. Giving away privacy to reap the rewards of sociality can not only hurt the eager communicator who is indifferent to his or her own privacy, but can hurt others. Lior Stahilevitz assesses how the courts are handling “collective privacy interests” and collective action problems that arise because “a single source of confidential information reveals something about multiple actors” (p. 217). Sometimes, and increasingly, it is not the individual but interconnected groups, such as families and tribes, who will be harmed if data is disclosed. For us villagers, the path forward should be clear: we are vulnerable, interdependent, and relational—deeply in need of well-crafted public law, but also of appropriate virtues of restraint and responsibility.

—ANITA L. ALLEN

The author is the Henry R. Silverman Professor of Law and Professor of Philosophy at the University of Pennsylvania and a Member of the Presidential Commission for the Study of Bioethical Issues. Her most recent book is Unpopular Privacy: What Must We Hide (2011).