Patrick Byrne, CEO of Overstock.com, discusses how Overstock.com became one of the first online retail stores to accept Bitcoin. Byrne provides insight into how Bitcoin lowers transaction costs, making it beneficial to both retailers and consumers, and how governments are attempting to limit access to Bitcoin. Byrne also discusses his project DeepCapture.com, which raises awareness for market manipulation and naked short selling, as well as his philanthropic work and support for education reform.

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Related Links

• For Overstock CEO, Bitcoin Isn’t Just A Publicity Stunt, Forbes
• Meet Patrick Byrne: Bitcoin Messiah, CEO of Overstock, Scourge of Wall Street, Wired
• UBS, in Theory, a Conspiracy to Naked Short “Tens of Millions” of Shares, Deepcapture

The Internet’s greatest blessing — its general openness to all speech and speakers — is also sometimes its biggest curse. That is, you cannot expect to have the most widely accessible, unrestricted communications platform the world has ever known and not also have some imbeciles who use it to spew insulting, vile, and hateful comments.

It is important to put things in perspective, however. Hate speech is not the norm online. The louts who spew hatred represent a small minority of all online speakers. The vast majority of online speech is of a socially acceptable — even beneficial — nature.

Still, the problem of hate speech remains very real and a diverse array of strategies are needed to deal with it. The sensible path forward in this regard is charted by Abraham H. Foxman and Christopher Wolf in their new book, Viral Hate: Containing Its Spread on the Internet. Their book explains why the best approach to online hate is a combination of education, digital literacy, user empowerment, industry best practices and self-regulation, increased watchdog / press oversight, social pressure and, most importantly, counter-speech. Foxman and Wolf also explain why — no matter how well-intentioned — legal solutions aimed at eradicating online hate will not work and would raise serious unintended consequences if imposed.

In striking this sensible balance, Foxman and Wolf have penned the definitive book on how to constructively combat viral hate in an age of ubiquitous information flows.

Definitional Challenges & Free Speech Concerns

Defining “hate speech” is a classic eye-of-the-beholder problem: At what point does heated speech become hate speech and who should be in charge of drawing the line between the two? “The notion of a single definition of hate speech that everyone can agree on is probably illusory,” Foxman and Wolf note, especially because of “the continually evolving and morphing nature of online hate.” (p. 52, 103)  “Like every other form of human communication, bigoted or hateful speech is always evolving, changing its vocabulary and style, adjusting to social and demographic trends, and reaching out in new ways to potentially receptive new audiences.” (p. 92)

Many free speech advocates (including me) argue that the government should not be in the business of ensuring that people never have their feelings hurt. Censorial solutions are particularly problematic here in the United States since they would likely run afoul of the protections secured by the First Amendment of the U.S. Constitution.

The clear trajectory of the Supreme Court’s free speech jurisprudence over the past half-century has been in the direction of constantly expanding protection for freedom of expression, even of the most repugnant, hateful varieties. Most recently, in Snyder v. Phelps, for example, the Court ruled that the Westboro Baptist Church could engage in hateful protests near the funerals of soldiers. “[T]his Nation has chosen to protect even hurtful speech on public issues to ensure that public debate is not stifled,” ruled Chief Justice John Roberts for the Court’s 8-1 majority. The Court has also recently held that the First Amendment protects lying about military honors (United States v. Alvarez, 2012), animal cruelty videos (United States v. Stevens, 2010), computer-generated depictions of child pornography (Ashcroft v. Free Speech Coalition, 2002), and the sale of violent video games to minors (Brown v. EMA, 2011). This comes on top of over 15 years of Internet-related jurisprudence in which courts have struck down every effort to regulate online expression.

Some will celebrate this jurisprudential revolution; others with lament it. Regardless, it is likely to remain the constitutional standard here in the U.S. As a result, there is almost no chance that courts here would allow restrictions on hate speech to stand. That means alternative approaches will continue to be relied upon to address it.

Foxman and Wolf acknowledge these constitutional hurdles but also point out that there are other reasons why “laws attempting to prohibit hate speech are probably one of the weakest tools we can use against bigotry.” (p. 171) Most notably, there is the scope and volume problem: “the sheer vastness of the challenge” (p. 103) which means “it’s simply impossible to monitor and police the vast proliferation of bigoted content being distributed through Web 2.0 technologies.” (p. 81) “The borderless nature of the Internet means that, like chasing cockroaches, squashing on offending website, page, or service provider does not solve the problem; there are many more waiting behind the walls — or across the border.” (p. 82) That’s exactly right and it also explains why solutions of a more technical nature aren’t likely to work very well either.

Foxman and Wolf also point out how hate speech laws could backfire and have profound unintended consequences. Beyond targeted laws that address true threats, harassment, and direct incitements to violence, Foxman and Wolf argue that “broader regulation of hate speech may send an ‘educational message’ that actually weakens rather than strengthens our system of democratic values.” (p. 171) That’s because such censorial laws and regulations undermine the very essence of deliberative democracy — robust exchange of potential controversial views — and leads to potential untrammeled majoritarianism. Worse yet, legalistic attempts to shut down hate speech can end up creating martyrs for fringe movements and, paradoxically, end up fueling conspiracy theories. (p. 80)

The Essential Role of Counter-speech & Education

Yet, “the challenge of defining hate speech shouldn’t lead us to give up on solving the problem,” argue Foxman and Woff. (p. 53) We must, they argue, refocus our efforts around “education as a bulwark of freedom.” (p. 170)  Digital literacy — teaching citizens respectful online behavior — is the key to those education efforts.

A vital part of digital literacy efforts is the encouragement of counter-speech solutions to online hate. “[T]he best anecdote to hate speech is counter-speech – exposing hate speech for its deceitful and false content, setting the record straight, and promoting the values of respect and diversity,” note Foxman and Wolf. (p. 129)  Or, as the old saying goes, the best response to bad speech is better speech. This principle has infused countless Supreme Court free speech decisions over the past century and it continues to make good sense. But we could do more through education and digital literacy efforts to encourage more and better forms of counter-speech going forward.

“Counter-speech isn’t only or even primarily about debating hate-mongers,” they note. “It’s about helping to create a climate of tolerance and openness for people of all kinds, not just on the Internet but in every aspect of local, community, and national life.” (p. 146) This is how digital literacy becomes digital citizenship. It’s about forming smart norms and personal best practices regarding beneficial online interactions.

Intermediary Policing

What more can be done beyond education and counter-speech efforts? Foxman and Wolf envision a broad and growing role for intermediaries to help to police viral hate. “We are convinced that if much of the time and energy spent advocating legal action against hate speech was used in collaborating and uniting with the online industry to fight the scourge of online hate, we would be making more gains in this fight,” they say. (p. 121) Among the steps they would like to see online operators take:

• Establishing clear hate speech policies in their Terms of Service and mechanisms for enforcing them;
• Making it easier for users to flag hate speech and to speak out against it;
• Facilitating industry-wide education and best practices via multi-stakeholder approaches; and
• Limiting anonymity and moving to “real-name” policies to identify speakers.

De-anonymization / Real-name policies

Most of these are imminently sensible solutions that should serve as best practices for online service providers and social media platform operators. But their last suggestion for sites to consider limiting anonymous speech will be controversial, especially at a time when many feel that privacy is already at serious risk online and when some critics argue that intermediaries already “censor” too much content as it is. (See, for example, this Jeff Rosen essay on “The Delete Squad: Google, Twitter, Facebook and the New Global Battle over the Future of Free Speech” and this Evgeny Morozov editorial, “You Can’t Say That on the Internet”).

Anonymous online speech certainly facilitates plenty of nasty online comments. There’s plenty of evidence — both scholarly and anecdotal — that “deindividuation” occurs when people can post anonymously.  As Foxman and Wolf explain it: “People who are able to post anonymously (or pseudonymously) are far more likely to say awful things, sometimes with awful effects. Speaking from behind a blank wall that shields a person from responsibility encourages recklessness – it’s far easier to hit the ‘send’ button without a second thought under those circumstances.” (p. 114)

On the other hand, there needs to be a sense of balance here. We protect anonymous speech for the same reason we protect all other forms of speech, no matter how odious: With the bad comes a lot of good. Forcing all users to identify themselves to get at handful of troublemakers is overkill and it would result in the chilling of a huge amount of legitimate speech.

Nonetheless, many governments across the globe are pushing for restrictions on anonymous speech. As Cole Stryker noted in his recent book, Hacking the Future: Privacy, Identity, and Anonymity on the Web, “we are seeing is an all-out war on anonymity, and thus free speech, waged by a variety of armies with widely diverse motivations, often for compelling reasons.” (p. 229). Stryker is right. In fact, less than two weeks ago, a French court ordered Twitter to produce the names of the people behind anti-Semitic tweets that appeared on the site last year.  Meanwhile, plenty of academics, including many here in the U.S., have stepped up their efforts to ban or limit online anonymity. If you don’t believe me, I suggest you read a few of the chapters of The Offensive Internet: Speech, Privacy, and Reputation (Saul Levmore & Martha C. Nussbaum, eds.). It’s a veritable fusillade against anonymity as well as Section 230, the U.S. law that limits liability for intermediaries who post materials by others.

In Viral Hate, Foxman and Wolf stop short of suggesting legal restrictions on anonymity, preferring to stick with experimentation among private intermediaries. One of the book’s authors (Wolf) penned an essay in The New York Times last November (“Anonymity and Incivility on the Internet”) suggesting that while “this is not a matter for government… it is time for Internet intermediaries voluntarily to consider requiring either the use of real names (or registration with the online service) in circumstances, such as the comments section for news articles, where the benefits of anonymous posting are outweighed by the need for greater online civility.” Specifically, Wolf wants the rest of the Net to follow Facebook’s lead: “It is time to consider Facebook’s real-name policy as an Internet norm because online identification demonstrably leads to accountability and promotes civility.”

These proposals prompted strong responses from some academics and average readers who decried the implications of such a move for both privacy and free speech. But, again, it is worth reiterating that Foxman and Wolf do not call for government mandates to achieve this. “[T]his notion of promulgating a new standard of accountability online is not a matter for government intervention, given the strictures of the First Amendment,” they argue. (p. 117)

However, Foxman and Wolf do suggest one innovative alternative that merits attention: premium placement for registered commenters. The New York Times and some other major content providers have experimented with premium placement, whereby those registered on the site have their comments pushed up in the queue while other comments appear down below them. On the other hand, I don’t like the idea of having to register for every news or content site I visit, so I would hope such approaches are used selectively. Another useful approach involves letting users of various social media sites and content services to determine whether they wish to allow comments on their user-generated content at all. Of course, many sites and services (such as YouTube, Facebook, and most blogging services) already allow that.

Conclusion

There are times in the book when Foxman and Wolf push their cause with a bit too much rhetorical flair, as when they claim that “Hitler and the Nazis could never have dreamed of such an engine of hate (as the Internet”). (p. 10)  Perhaps there is something to that, but it is also true that Hitler and the Nazis could have never of dreamed of a platform for individual empowerment, transparency, and counter-speech such as the Internet. It was precisely because they were able to control the very limited media and communications platforms of their age that the Nazis were about to exert total control over the information systems and create a propaganda hate machine that had no serious challenge from the public or other nations. Just ask Arab dictators which age they’d prefer to rule in! It is certainly much harder for today’s totalitarian thugs to keep secrets bottled up and it is equally hard for them to spread lies and hateful propaganda without being met with a forceful response from the general citizenry as well as those in other nations. So the “Hitler-would-have-loved-the-Net” talk is unwarranted.

I’m also a bit skeptical of some of the metrics used to measure this problem. While there is clearly plenty of online hate to be found across the Net today, efforts to quantify it inevitably run right back into the same subjective definition problems that Foxman and Wolf do such a nice job explaining throughout the text. So, if we have such a profound ‘eye-of-the-beholder’ problem at work here, how is it that we can be sure that quantitative counts are accurate?  That doesn’t mean I’m opposed to efforts to quantify online hate, rather, we just need to take such measures with a grain of salt.

Finally, I wish the authors would have developed more detailed case studies of how companies outside the mainstream are dealing with these issues today. Foxman and Wolf focus on big players like Google, Facebook, and Twitter for obvious reasons, but plenty of other online providers and social media operators have policies and procedures in place today to deal with online hate speech. A more thorough survey of those differing approaches might have helped us gain a better understanding of which policies make the most sense going forward.

Despite those small nitpicks, Foxman and Wolf have done a great service here by offering us a penetrating examination of the problem of online hate speech while simultaneously explaining the practical solutions necessary to combat it. Some will be dissatisfied with their pragmatic approach to the issue, feeling on one hand that the authors have not gone far enough in bringing in the law to solve these problems, while others will desire a more forceful call for freedom of speech and just growing a thicker skin in response to viral hate.  But I believe Foxman and Wolf have struck exactly the right balance here and given us a constructive blueprint for addressing these vexing issues going forward.

Parmy Olson, London Bureau chief for Forbes, discusses her new book We are Anonymous: Inside the Hacker World of Lulzsec, Anonymous and the Global Cyber Insurgency. The book is an inside look at the people behind Anonymous, explaining the movement’s origins as a group of online pranksters, and how they developed into the best known hacktivist organization in the world. Olson discusses the tension that has existed between those that would rather just engage in pranks and those that want to use Annoymous to protest different groups they see as trying to clamp down on internet freedom, as well as some of the group’s most famous campaigns like the attacks against the Church of Scientology and the campaign against Paypal and Mastercard. Olson also describes the development of LulzSec which became famous for a series of attacks in 2011 on high profile websites including Fox, PBS, Sony, and the CIA.

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• “We are Anonymous: Inside the Hacker World of Lulzsec Anonymous and the Global Insurgency”, by Olson
• “Olson’s Blog”
• “Two Members Of Hacker Group LulzSec Plead Guilty To Cyber Attacks”, by Olson
• Feds Arrest 14 ‘Anonymous’ Suspects Over PayPal Attack, Raid Dozens More, Wired

In a post earlier this week, I discussed Randy Cohen’s “guideline” for anonymous blogging. Specifically, Cohen argued in a recent New York Times piece that, “The effects of anonymous posting have become so baleful that it should be forsworn unless there is a reasonable fear of retribution.  By posting openly, we support the conditions in which honest conversation can flourish.”  While sympathetic to that guideline, I noted I agreed with it as an ethical principle, not a legal matter.  In others words, what might make sense as a “best practice” for the Internet and its users would not make sense as a regulatory standard.  I prefer using social norms and public pressure to drive these standards, not regulation that could have an unintended chilling effect on beneficial forms of anonymous online speech.

Dan Gillmor of the Center for Citizen Media of the Harvard Berkman Center has a new column up at the UK Guardian in which he takes a slightly different cut at a new standard or social norm for dealing with some of the more caustic anonymous speech out there:

One of the norms we’d be wise to establish is this: People who don’t stand behind their words deserve, in almost every case, no respect for what they say. In many cases, anonymity is a hiding place that harbours cowardice, not honour. The more we can encourage people to use their real names, the better. But if we try to force this, we’ll create more trouble than we fix.  But we don’t want, in the end, to turn everything over to the lawyers. The rest of us — the audience, if you will — need to establish some new norms as well.

Specifically, Gillmor argues that, ” We need to readjust our internal BS meters in a media-saturated age,” because “We are far too prone to accepting what we see and hear.”  I think Gillmor has too little faith in most digital denizens; most of us take anonymous comments with a grain of salt and assume that the ugliest of those comments are often untrue.  And that’s generally the “principle” he recommends each of us adopt going forward:

When you read or hear an anonymous or pseudonymous attack on someone else, you should not just assume — barring persuasive evidence of the charge — that it’s false. Assume that the accuser is an outright, contemptible liar.

I am generally sympathetic to Gillmor’s principle, but I think he goes a bit overboard in asking us to assume that all anonymous or pseudonymous attacks are false. So, here’s a reformulation of it: We should discount, by at least some small measure, anonymous online speech that attacks others in a heated manner and which lacks supporting evidence for the assertions made or charges levied. However, the more heated or vicious the attack, the greater we should discount the veracity of the claims asserted.

Of course, this is simply a guideline for readers, not speakers or the sites that host online speech.  Each speaker will have to decide for themselves whether to post anonymously or reveal their identities. As I noted in my previous essay, however, I think it makes sense to generally encourage people to reveal their true identities when blogging or commenting.  I have always lived by that rule personally when blogging or posting comments on other sites, whether they are blogs, discussion boards, or even shopping sites.

For sites that host speech, things get trickier.  Luckily, we have Section 230 of the CDA to protect online operators from onerous forms of liability for the content they host on their sites, although some would like to change that. Also, as I’ve discussed here before, some critics of online anonymity would like to see “civility check” or “cooling off periods” instituted that would prevent instantaneous comments from being posted without some sort of human or automated review of the content.  But tweaking Sec. 230 liability norms or requiring “cooling off periods” for comments could have a profoundly chilling effect on many beneficial forms of online speech. As Gillmor wisely notes in his essay:

anonymity has crucially important value. We need it for whistleblowers, for political dissidents in dictatorships — for those who have important stories to tell but whose lives or livelihoods would be in jeopardy if their identities were exposed.

And one has to think through the mechanics of regulation before willy-nilly proposing to “ban anonymity” online.  As Gillmor points out, that could lead to some troubling outcomes:

People who’d ban anonymity don’t seem to realise that it’s technically impossible unless we’re willing to turn over all of our communications in every venue to a central authority — a system that would herald the end of liberty. They can’t really want such a regime, can they? Meanwhile, even that kind of structure could and would be hacked by motivated types, though with more difficulty.

That’s exactly right. Nonetheless, online speakers and websites shouldn’t just treat Sec. 230 as a “get-out-of-jail-free” card or let their anonymous speech rights go to their heads.  There’s nothing wrong with a little sensible site policing and self-regulation to deal with the baser elements of the blogosphere.

Randy Cohen, who pens “The Ethicist” column for The New York Times Magazine, wrote this week about the “skank case,” or the controversy surrounding the recent legal outing for an anonymous blogger who called fashion model Liskula Cohen a “psychotic, lying, whoring … skank.”   Thanks to a recent court decision, we now know that the blogger who uttered those words is Rosemary Port, a 29-year-old Fashion Institute of Technology student.  And she now apparently plans to sue Google for revealing her identity to the court. [As a shameful aside, can I just say that there has never been a nerdy Internet legal battle that involved two more smokin’ hot women than this! Sorry, I couldn’t resist pointing out the obvious.]

Reflecting on this catfight in his NY Times Magazine editorial, “Is It O.K. to Blog About This Woman Anonymously?” Randy Cohen asks:

Has anonymous posting, though generally protected by law, become so toxic that it should be discouraged? It has. To promote the social good of lively conversation and the exchange of ideas, transparency should be the default mode. […]

Here is a guideline. The effects of anonymous posting have become so baleful that it should be forsworn unless there is a reasonable fear of retribution.  By posting openly, we support the conditions in which honest conversation can flourish.

But Mr. Cohen never specifies whether he is talking about an ethical guideline or a legal guideline. There is a world of difference, of course.  As a matter of social or personal ethics, I think many of us would agree that anonymity “should be forsworn” and we should encourage people to “post openly.”   I always live by that rule myself when blogging or posting comments on other sites, whether they are blogs, discussion boards, or even shopping sites.  But that is my choice. I would not want that choice forced by law upon others.

Some might say, why not? Isn’t it just as good of a legal principle as a social norm? Absolutely not. The chilling effect would be substantial.  Of course, some would say, ‘Fine, we need to chill a little speech when that speech gets too heated or vulgar.’  But that’s a dangerous line we should be wary of asking judges to cross.  As is always the case in matters such as this, it comes down to a line-drawing exercise regarding what should constitute “acceptable speech.”

The better approach is to take Mr. Cohen’s “guideline” and push for its general acceptance for some (perhaps most) websites, but leave everyone free to decide whether anonymous posting and comments remain in place.  We don’t demand identification here at the TLF, for example, because we don’t necessarily mind what some shitheads (you know who you are!) will say about us or our views. But we certainly try to encourage people to self-identify by signing in first and “claiming” their comments.  Most do. A handful don’t. And still others do sign in but leave comments under a pseudonym.  I say let the various models continue to flourish across the web while also encouraging bloggers and websites to adopt Randy Cohen’s general rule as a website “best practice.”

Can self-regulation, social norms, public and press attention, and external pressure form others encourage some of the most vitriolic voices of the Net to moderate their tone?  Perhaps not.  With a platform like the Internet, you have to be willing to accept some silliness from those loonies who haven’t quite learned how to responsibly use this wonderful tool that has been put at their disposal.  But I will take this approach over the forced surrender of our anonymity any day of the week.

Other views: Dan Solove;  Kathleen Parker of the Washington Post;  Maureen Dowd of the New York Times; UK Guardian “Belle de Jour” column; Richard Korman of ZDNet; Chris Matyszczyk writing at CNet News; JR Raphael writing at PC World; Lance Ulanoff of PC Mag.com

The Wired article (“Great Wall of Facebook: The Social Network’s Plan to Dominate the Internet — and Keep Google Out“) I discussed yesterday touched on another issue near & dear to my heart (besides the importance of smarter advertising): the future of online anonymity. The article lays out Facebook’s “4-Step Plan for Online Domination,” which involves “colonizing” the web though Facebook’s Connect (launched Dec. 2008) and Open Stream API (launched April 2009) initiatives, which:

don’t just allow users to access their Facebook networks from anywhere online. They also help realize Facebook’s longtime vision of giving users a unique, Web-wide online profile. By linking Web activity to Facebook accounts, they begin to replace the largely anonymous “no one knows you’re a dog” version of online identity with one in which every action is tied to who users really are. To hear Facebook executives tell it, this will make online interactions more meaningful and more personal. Imagine, for example, if online comments were written by people using their real names rather than by anonymous trolls. “Up until now all the advancements in technology have said information and data are the most important thing,” says Dave Morin, Facebook’s senior platform manager. “The most important thing to us is that there is a person sitting behind that keyboard. We think the Internet is about people.”

The bolded prediction of what I would call “Online Identity Integration” is already happening.  To take one tiny example, readers can now post comments on the TLF by logging into Disqus (our Comment Management System) through their Facebook (or Twitter) account, which will also allow them to automatically share those comments on Facebook (or Twitter). This is purely opt-in: Users are free to continue to post anonymous comments. But as more websites and platforms implement such Identity Integration functionality, a growing percentage of online speech will be tied to profiles offered by major social networks.

Some free speech advocates are sure to bemoan Identity Integration as directly undermining online anonymity. But as long as such a trend is voluntary, driven by the desire of users to integrate their online presence to make it more manageable, I think Identity Integration will be a good thing not only for users, but also for free speech. As the recent use of social media by the Iranian opposition has amply demonstrated, sites like Facebook and Twitter are more than just “social networks”:  they are online speech platforms that profoundly democratize communications. Integrating my online soapboxes amplifies my voice—for example, by letting me easily share my comments on scattered blogs with my friends on Facebook or followers on Twitter.

But, of course, if Identity Integration increases the user’s perception that “someone” might be monitoring what they say online, and might punish them for it, either in a tort suit or… a torture chamber, online speech will certainly be chilled, even if it is more “effective” on some level. Identity Integration will certainly make it easier for a plaintiff to identify who posted a defamatory comment about them, but still not automatic. Sites like Facebook will face increased pressure to divulge identifying information about their users. Even if an allegedly defamatory comment on a blog is tied to the Facebook profile of what appears to be a real person, a plaintiff complaining about that comment would still need to prove to some degree of certainty who actually posted the comment. As social networking sites increasingly become a “critical chokepoint” of online identity, they will probably face pressure to do one or both of the following:

1. Authenticate their users upon initial account creation and upon each subsequent log-in; and
2. Take down content that is allegedly defamatory or just plain unpopular with a particular politician/mullah/state attorney general.

Concentrating the ability to do these things will certainly make such pressure both more likely to happen and more likely to succeed. It is also likely to strengthen proposals to formally implement such changes in Congress, for example, by discarding or amending the immunity of online intermediaries under Section 230, something my PFF colleague Adam Thierer has recently discussed here and here. I hope Facebook, Twitter and others are ready for the pressure. But online middlemen don’t want to be deputized into policing their users, particularly when that means making highly subjective determinations of, say, whether content is defamatory.

Rather than criticize online intermediaries for developing Identity Integration technologies that make it easier to identify online speakers, free speech advocates need to be willing to do two things:

1. Accept that some users will freely choose less anonymity (such as by posting using Facebook Connect) and that’s ok. Identity Integration technologies create real value and, much as defenders of online anonymity don’t like to admit it, they will also both reduce online defamation and make it easier for the truly aggrieved to find justice—both good things.
2. Protecting online anonymity will mean joining forces with Facebook, Twitter, etc. to help them fend off pressure to identify their users except under a “third party subpoena” validly issued by a court that has weighed the First Amendment values at stake against legitimate suits by the truly aggrieved—something I detailed here.

Doug Feaver, a former Washington Post reporter and editor, has published a very interesting editorial today entitled “Listening to the Dot-Commenters.”  In the piece, Feaver discusses his personal change of heart about “the anonymous, unmoderated, often appallingly inaccurate, sometimes profane, frequently off point and occasionally racist reader comments that washingtonpost.com allows to be published at the end of articles and blogs.” When he worked at the Post, he fought to keep anonymous and unmoderated comments off the WP.com site entirely because it was too difficult to pre-screen them all and “the bigger problem with The Post’s comment policy, many in the newsroom have told me, is that the comments are anonymous. Anonymity is what gives cover to racists, sexists and others to say inappropriate things without having to say who they are.”

But Feaver now believes those anonymous, unmoderated comment have value because:

I believe that it is useful to be reminded bluntly that the dark forces are out there and that it is too easy to forget that truth by imposing rules that obscure it.  As Oscar Wilde wrote in a different context, “Man is least in himself when he talks in his own person. Give him a mask, and he will tell you the truth.”   Too many of us like to think that we have made great progress in human relations and that little remains to be done. Unmoderated comments provide an antidote to such ridiculous conclusions. It’s not like the rest of us don’t know those words and hear them occasionally, depending on where we choose to tread, but most of us don’t want to have to confront them.

It seems a bit depressing that the best argument in favor of allowing unmoderated, anonymous comments is that it allows us to see the dark underbelly of mankind, but the good news, Feaver points out, is that:

But I am heartened by the fact that such comments do not go unchallenged by readers. In fact, comment strings are often self-correcting and provide informative exchanges. If somebody says something ridiculous, somebody else will challenge it. And there is wit.

He goes on to provide some good examples.  And he also notes how unmoderated comments let readers provide their heartfelt views on the substance of sensitive issues and let journalists and editorialists know how they feel about what is being reported or how it is being reported. “We journalists need to pay attention to what our readers say, even if we don’t like it,” he argues. “There are things to learn.”

I applaud Mr. Feaver for this.  This is a struggle not just for journalists at major media outlets but also for bloggers like us here at the TLF.  There are times when very annoying, even hurtful things are said by anonymous commenters here at the TLF. Our policy, however, has generally been to allow a vibrant exchange of views, except in the rare circumstances where the commenter utters racial epithets or starts issuing death threats. Or, if a specific commenter goes into “stalker mode” and does nothing but post harassing, irrelevant comments all day, then those will occasionally be discarded. But, generally speaking, it’s “anything goes” here. (We even allow spam!)  Each author, however, is free to decide for themselves where to draw the line, but we all generally err on the side of completely unmoderated exchange for the reasons Feaver lists.  We know it is far more likely that we’ll get hostile anonymous comments rather than nice ones, but it’s good to get feedback of all varieties, even when it’s nasty.

From a policy perspective, however, this issue is taking on greater weight because some folks believe that unmoderated, anonymous user comments result in harassment, hate speech, defamation, or privacy violations.  As a result, there has been a growing chorus of critics who claim something must be done to remedy this problem.  Cass Sunstein and Richard Thaler, for example, have advocated a Civility Check that “can accurately tell whether the email you’re about to send is angry and caution you, “warning: this appears to be an uncivil email. do you really and truly want to send it?”” The state of Kentucky has considered legislation that would ban online anonymity, even though that would be clearly unconstitutional. Respected law school professors such as Mark Lemley and Daniel Solove have toyed with the idea of DMCA-like “notice-and-takedown” regime for potentially defamatory comments online.  I once even heard Cal-Western law school professor Nancy S. Kim suggest that blogs, social networking sites, and other interactive sites should institute a “cooling off period” to address cyber-harassment. By requiring all those seeking to comment to wait a certain length of time before a message or image is posted to a website, she hoped that some commenters might choose to tone down or even remove the potentially offending messages or images.

Of course, it is more likely that readers would just choose not to comment at all if any of these proposals where enshrined into law.  And that gets to the heart of what’s wrong with any potential legal response to this “problem” of online anonymous, unmoderated speech and user comments:  It will massively chill free speech and expression.  Sure, that would get rid of the hecklers and the jackasses who cause grief for some, but it would also deprive us of the many constructive user comments and criticisms that make the online experience — for better or worse — the most open, vibrant exchange of views ever known to man.

Finally, it goes without saying that this debate is fundamentally tied up with the future of Section 230 and the question of intermediary liability.  Currently, online service providers of all flavors are generally not required to police or screen user comments or force users to be authenticated and reveal their identities before posting comments.  Section. 230 has been the key to protecting intermediaries from punishing liability that would otherwise force them to severely curtail online expression, or run the risk of being driven under by the weight of endless lawsuits.  This is why I have argued that Sec. 230  is “the cornerstone of ‘Internet freedom’ in its truest and best sense of the term.”  But, again, all this could change if we are not vigilant in defending Sec. 230.

OK, now that I’ve made this impassioned defense of unmoderated and completly anonymous online exchange, let the hateful comments fly!