In his  New York Times column, Stanley Fish closes with this assertion:

Perhaps the most amazing statement is made by Daniel J. Solove when he declares that “the law is hampered because it overprotects free speech.” The conventional first-amendment wisdom is that free speech cannot be overprotected, but that wisdom is put on trial by these thinkers.

Why has free speech fallen into such disfavor?  You guessed it, the internet and anonymous speech. Again.  Fish deconstructs a set of essays published under the title, The Offensive Internet, where freedom loving academics explain why some people’s freedom isn’t as lovable as others.

Fish begins with Justice John Paul Stevens’ explanation from McIntyre v. Ohio Elections Commission (1995) about why anonymous speech deserves protection.

“The inherent worth of . . . speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.” Or, in other words, a writing or utterance says what it says independently of who happens to say it; the information conveyed does not vary with the identification of the speaker.

This doesn’t mean, however, that anonymous speech is without its faults.

There are at least two problems with this reasoning. First, it is not true that a text’s meaning is the same whether or not its source is known. Suppose I receive an anonymous note asserting that I have been betrayed by a friend. I will not know what to make of it — is it a cruel joke, a slander, a warning, a test? But if I manage to identify the note’s author — it’s a friend or an enemy or a known gossip — I will be able to reason about its meaning because I will know what kind of person composed it and what motives that person might have had.

In the same way, if I am the recipient of a campaign message supporting a candidate or a policy, my assessment of what I am reading or hearing will depend on my knowledge of the sender. Is he, she or it an industry representative, a lobbyist, the A.C.L.U., the Club for Growth? The identity of the speaker is part of the information and is therefore part — a large part — of the meaning. (“Consider the source” is not only commonplace advice; it is a theory of interpretation.)

But as judges love to say in reaction to objections to low quality evidence, it goes to weight and sufficiency, not admissibility.  The anonymous voice can be heard, but at a discounted price.  To the extent that the source matters, as it often does, the anonymity comes at the cost of credibility. 

The problem, the lawprofs explain, is that the great “marketplace of ideas” is turned into an echo chamber of fraud when any fool can post any lie at any time.

Cass Sunstein invokes this hoary metaphor only to call it into question. Rumors cascade, Sunstein explains, when someone relies on what someone else has said and then spreads a falsehood as truth. The Internet multiplies the effect exponentially: an “initial blunder . . . can start a process by which a number of people participate in creating serious mistakes.” Rather then producing truth, the free and open marketplace of the Internet “will lead many people to accept damaging and destructive falsehoods,” and unless there is “some kind of chilling effect on false statements,” the “proper functioning of democracy itself” may be endangered.

Certainly, knowledge is a core requirement of a functioning democracy, and no one would dispute that a lot of false information, crap knowledge, is spread across the internets.  That’s not to say it isn’t spread everywhere else we go for information, both anonymously and attached to specific names, like Hannity and Beck, who don’t appear shy at spreading their brand of ideas.

The scholarly answer of Saul Nussbaum, co-editor of the book, is to condition  Section 230 protections on internet publishers willingness to play supplicant to the aggrieved and sensitive souls who are stung by anonymous speech.

Saul Levmore (Nussbaum’s co-editor) suggests that immunity might be conditioned on the willingness of a provider either to take down a message after notice of its falsity or defamatory character has been given, or “to enforce non-anonymity” and thus open the way for an injured party to seek redress. The law, writes Anupam Chander, “should allow the individual to find information to lead her to the person who committed the privacy invasion.” As it is now, with an expansive reading of Section 230, “the law no longer puts any obstacles in the way of the Sociopath” who, traveling on the Internet, can go anywhere and spray venom that lasts forever. (Leiter)

Notably, the obstacles Brian Leiter would place before the “Sociopath” are the same he would place before Publius and everyone in between.  Whether the anonymous internet author did wrong, and thus should be outed upon pain of sanction, would be left in the hands of the aggrieved.  The aggrieved isn’t necessarily any better a source of “truth” than the anonymous author.  Indeed, the aggrieved may be the worst source of truth around.

The classic solution, whether taken from Milton’s Areopagitica or Brandeis (sunshine is the best disinfectant), is that truth will correct falsity; lies will provoke counterspeech to correct them.  The academics complain that, for reasons unclear, this doesn’t happen on the internet. 

Conceding the merit of the complaints, together with the perception, if not the reality, that falsehoods and attacks spread smoother online than elsewhere, so what?  The scholars response is to differentiate speech into new classifications, more or less worthier of protection.

Yet faced with the problems posed by the Internet, they start talking about “low value” speech (a concept strong first-amendment doctrine rejects) and saying things like “autonomy resides not in free choice per se but in choosing wisely” and “society needs not an absence of ‘chill,’ but an optimal level.”(In short, let’s figure out which forms of speech we should discourage.)

No one could argue against “choosing wisely,” there being few poor choice advocates around.  But it raises some obvious questions: Who gets to decide what choices are wise, and one person’s “low value” speech is another person’s hidden truth. 

Whether described as slippery slope or road to perdition, this misguided attempt at institutionalizing the worthiness of speech, at the end of a club, will necessarily end up with internet publishers (meaning guys like me who have blawgs where people comment) taking the safe path of eliminating anything controversial or potentially antagonistic so that no feathers are ever ruffled, and no summons and complaint (or worse yet, indictment) ends up at my door.

This is a zero sum game when the determination of low value speech is subjectively left in the wringing hands of the well-meaning academics.  Most are too young to remember the censorship boards of the ’50s, making sure Harriet was never seen bedded with Ozzie to prevent lustful thoughts in children. 

Dan Solove, whose seminal work, The Future of Reputation, on internet privacy remains the best around, has a firm grasp on the many and varied problems free speech on the internet poses.  If anyone can appreciate the risk, Dan can.  But that doesn’t make this next step, that the first amendment “overprotects” speech a viable response. 

Speech can be nasty and harmful.  Speech can be frustrating.  Speech can be false, wrong and outrageously misleading.  But it remains speech, along with all the truly necessary and good speech that we want and need, and is similarly perceived by those who would prefer it silenced as nasty and harmful.  There is no middle ground based on what makes some academics or the aggrieved happy, and there is no such thing as speech overprotected. 

It sucks to be the undeserving target of an internet assault.  We all get that.  There’s just no alternative that won’t spell the death of speech.  Name your poison.