There isn’t always two sides to every story, but don’t try to tell that to the guy on the other side from you. If there is only one right side, they own it and you don’t.  You, of course, are absolutely certain they’re wrong, insane and controlled by Satan (or whatever evil deity you prefer). 

At Crime & Federalism, Mike writes of the greatest threat to free speech not being the government, but each other.  While he uses copyright troll Righthaven, one of the few private actors it seems everyone agrees is evil, and is being gleefully crushed by  Marco Randazza as I type, He notes:

But not everyone can afford legal help. Many people allowed Righthaven to extort it, as a purely economic matter. If defending a lawsuit costs $20,000 that you don’t have, then putting a $5,00 settlement on a credit card makes sense (especially when you consider that the maximum exposure for copyright infringement is $150,000).

Now some of you will be hard asses. “Freedom isn’t free.” Cute slogan that is ignorant of constitutional text. Speech is supposed to be free. The First Amendment protects, after all, “freedom of speech.” Read the Constitution. It’s all in there.

Well, yeah. It’s in there. Though most agree that freedom doesn’t mean complete, total, unfettered freedom, because people, being people, can say some really bad stuff sometimes.  Like lies. Like things that deceive others. Like things that are calculated to cause unjustified problems, whether for some pernicious purpose or just the lulz.  So it’s all about freedom, except when it’s not.

The problem is that people sometimes often disagree about what’s true and what’s false, what’s right and what’s wrong.  We can all agree that the right stuff is better than the wrong stuff, but which is which presents a problem.  It’s not about popular vote, where one against the world makes the world right and the one wrong.  Sometimes the sole voice is the right voice.  And most of the time the sole voice insists its the right voice, whether it is or not.

But the point of Mike’s post is that the testing, by litigation, is the killer.  Most would agree we need a way to separate the good from the bad, but the price is more than most of can, or are willing, to pay.  When someone decides they don’t like what another person writes, they can challenge it. The writer must then defend himself.  That’s where the nightmare happens for the good guy writer.  For the bad guy writer, the nightmare is endured by the person challenging. 

See the problem?

Not too long ago, Arthur Alan Wolk settled his beef with Reason. When Jacob Sollum announced the settlement, he closed his comments with this explanation.

Note to commenters: This costly and time-consuming litigation is over, and we do not want to see any further lawsuits filed as a result of comments on our site. Because it is impossible for us to screen and monitor all comments, we have disabled them on this post.

I was critical of his decision. Soon after, I received an email from Jacob asking if we could talk about it in the upcoming weeks. “Sure,” I responded, then never heard about it again. Recalling the request, I sent him another email and never heard back. Obviously, it wasn’t that important anymore.

I’ve  been sued for what appeared in this space. I’ve been threatened with suit numerous times. I’ve been threatened with harm a few times as well.  I can only shrug.

For those who don’t know better, the cheap talk about the wonderful benefits of blawging is nonsense. This blawg has not made me rich and famous, hasn’t shod by kids, and won’t pay for a Ferrari.  When there is a cost associated with it, it comes out of my pocket. That includes defending myself should I be accused of defamation.  Whether I can afford it isn’t the point. Nobody wants to pay it.

There is a cost associated with expressing an opinion in a public forum.  As bloggers talk about the potential deluge in new blawgs from the 94% who “plan” to start, and as  LexBlog honcho Kevin O’Keefe uses his good offices to urge n00bs to work hard to create meaningful content rather than drown out the signal with noise, nobody but Mike talked about the hidden cost.

The price for creating the vehicle, the blawg, the domain, the program, is one cost. Time lost to more productive efforts is another.  The emotional loss when you learn that you’ve been deceived, that blawgs are unlikely to come close to a viable ROI to justify their existence (sorry, kids, but that’s the truth; we’ve been there, this isn’t an argument). These are all the obvious costs of blawging.

There are ways to minimize your exposure.  Become the “go-to” blawg for caselaw and news stories on Iowa residential property line disputes, curating stories with nothing more controversial than a prefatory “interesting” or, get really risky, “curious.”  Add nothing more and chances are that you won’t be threatened too often.  And like Iowa Dirt Lawyer, chances are you will fade away when the pointlessness of it becomes manifest.

Or you can play it safe, close the comments, tone down the rhetoric, try your best not to offend anyone.  After a few of us, including Mike Masnick at  Techdirt and Paul Alan Levy at  Public Citizen, refused to cower in the corner, and  “chided” Jacob Sollum for closing comments, he tried to find a middle ground :

 

Again, we are glad this litigation is over and would like to get on with our other work, so we ask readers to exercise self-restraint in their comments so as to forestall any more claims that we are inciting others to libel. 

The problem Mike raises, that the price of free speech isn’t free, is very real. Those who fear the price argue about the abuses by private actors who would silence others to protect their good reputation from unjustified taint, or conceal their impropriety and wrongdoing.  There are some other private actors, like Ken at Popehat, who have  taken up arms pro bono for the sake of free speech, and fought  battles in the trenches with those who would threaten and bully speakers into silence, but you can’t count on Ken, or the King of Free Speech Defense, Marco Randazza, being at your beck and call.

There is a common thread among most of the names of blawgers throughout this post. They have all chosen to speak their minds, hold and express real opinions, likely to please some and offend others, and add to the body of critical thought available in the blawgosphere. They have chosen to take the risk.  If you aren’t prepared to do so, if the threat of having to defend your words in some frivolous lawsuit that grows costly and burdensome is too much for you to take, then resign yourself to being noise on the internet, and spare yourself the waste by not bothering at all. No one will notice your absence. No one will care at all.

I’m not suggesting that you are wrong to chose to avoid the risk. Some of us are built to take chances, and others aren’t.  But if you chose to jump into the mix, then understand and appreciate what Mike says.  You’ve been warned.

Endnote:  The title of this post reflects my view that we need national anti-SLAPP regulation as a means of providing a counterbalance to frivilous litigation designed to silence critical speech. It’s hardly a perfect solution to the threat of lawsuits to shut down underfunded critics, but it would provide a much needed disincentive to SLAPP suits.