Given the recent hubbub over Danielle Citron’s call to silence the cyberbullies as a matter of civil rights, based upon the claim that it disproportionately hurts the feelings of women, the 9th Circuits decision in Gardner v. Martino may put to rest at least one of the claims.  From the San Francisco Chronicle :

A federal appeals court had some advice Friday for anyone whose reputation gets trashed on talk radio: Don’t bother suing for slander, because no one reasonably expects objective facts from the typical talk show host.

It can be an unpleasant world out there, with people saying mean things in public forums that hurt one’s feelings.  Talk radio, as opposed to a chat room or website, reaches a substantially greater audience and carries, at least to its listeners, who are often adherents to whatever political views the host promotes, great credibility.  Still, as the court held, it is unreasonable to believe that it’s reliable. 

If Talk Radio commentary is beneath the credibility threshold for slander, how then can anonymous comments on a thread on a website be elevated to the stature necessary to be worthy of impairing free speech at all, and then to justify a shift in responsibility from the speaker to the forum owner and pipeline provider, third parties to any speech uttered, holding them liable for the hurt feelings caused by anonymous speech if they don’t become part of the speech police?

As was argued by Marc Randazza, though found unworthy of attention by the scholarly chorus, one of the primary flaws of this approach to silence hurtful speech was that it was so lacking in credibility from the outset as to hardly constitute a serious threat.  In the event that it turned from stupid, venal speech into action, then existing law kicks in, which is sufficient to address the harm.  But the anonymous garbage spewed by idiots on the internet just didn’t reach the level of credibility to justify a wholesale shift in paradigm.

This aspect, of course, was only one of the issues tossed into the hat in favor of regulating speech online under the umbrella of cyber civil rights, but it was a critical one in that it elevated what some considered comments that, despite the fact that they hurt people’s feelings and made outrageous allegations about others, were facially lacking in credibility to the status of slander. 

In response, the point was made that these were juvenile, idiotic comments made by people who were so gutless as to be unwilling to sign their name to them.  They were not to be taken seriously, and they were unworthy of being taken seriously.  This response was in turn ridiculed as the “boys will be boys” argument, which supporters of cyber civil rights contended was an inadequate answer to those whose reputations were harmed by these comments and were unworthy of protection.  In other words, who cares if these jerks and just jerks; these are jerks who are hurting women’s feeling with their comments and their free speech right to post jerky things should not trump women’s rights to speak without fear ot attack by the jerks.

Aside from the widely assumed but as yet unproven assertion that this is a women’s issue at all, the 9th Circuit decision makes an important dent in the CCR advocates argument:  Hurtful though it may be, if it isn’t credible, it can’t be slander.  While no one has (yet) claimed that Talk Radio is a civil rights issue for women, it clearly has a greater impact based on its far broader audience reach and far greater credibility than anonymous comments on Auto-Admit.  And yet it is incapable of giving rise to actionable slander because it is what every reasonable person knows it to be: Hyperbolic commentary intended to feed the bias of its audience, with little concern for truth or accuracy. 

The call to record and maintain the identities of these anonymous attackers is based upon the need to identify the miscreants so that the victims can go after them.  But go after them for what?  If Talk Radio doesn’t give rise to slander for lack of credibility, then how could an anonymous, baseless attack on a website be held sufficiently credible to maintain a slander action?  It can’t, and it never should.  It is not credible.  It was never credible.  There may be many hurt feelings, but there is no slander.

It occurs to me that rather than try to reconstruct the problem of anonymous nastiness and attacks as a womens rights issue to gain rhetorical and political advantage, and use it to seek legislation to curtail everyone’s free speech and shift liability to third parties by making them part of the cyber police patrol, the efforts would be far better spent pounding home the point that anonymous attacks online are worthless, incredible crap, and people who post them are the idiots of this cyber village.