How to protect free speech online

The Stop Online Piracy Act may have been shut down at the eleventh hour, but free speech on the Internet continues to come under attack. In addition to “son-of-SOPA” (which we will surely see in the coming year, under a different name), the Cyber Intelligence Sharing and Protection Act (CISPA), the Anti-Counterfeiting Trade Agreement (ACTA) and a host of proposed regulations at the state level have taken aim at the open Internet. In response to these threats, the Internet Defense League is launching in the coming weeks. Building on the efforts that brought SOPA to a screeching halt, the league aims to fight against bad laws and restrictions on online expression, wherever they may arise.
As general counsel for Avvo, a social media startup that offers an expert-only Q&A forum and profiles and ratings of lawyers, doctors and dentists in the U.S., I’ve seen firsthand how those with the means to do so will exploit any opening possible to try to silence speech they do not like. I’ve responded to hundreds of lawsuit threats and lawsuits against Avvo on grounds ranging from privacy to commercial misappropriation to unfair competition to copyright or trademark infringement — all for activity that is soundly protected by the First Amendment.
The takeaway is simple: any attempt to regulate speech online — whether in service of “stopping piracy” or “defending against cyberattack” — must be ruthlessly interrogated for how it will be abused. Because it will be abused. Those with censorious impulses will push the four corners of the law as far as possible to silence speech they don’t like. It is depressingly common to see the mere threat of a lawsuit cause a withering of speech online. It’s vitally important that we recognize and call out the certainty that even well-intentioned laws that impact expression will be used as a bludgeon against the open expression of information and ideas online. In addition to opposing SOPA and its ilk, here are three areas where companies can take a stand to protect free speech on the Internet.

1. Retain anonymous comments.

Are anonymous comments less credible than those attributed to a person? Of course. Does anonymous commentary increase the likelihood of “flaming” attacks and false statements? Naturally. But anonymity has its place. Anonymous authorship of the Federalist Papers allowed the founders of the republic to circulate ideas unsullied by the personality of those espousing them. Anonymity offers protection from retaliation and harassment. And in the case of today’s online forums, it allows the posting of sensitive material (think, for example, of doctor reviews by patients) free of privacy concerns. Ultimately, it should be up to readers to determine whether they trust an anonymous comment rather than censor the message altogether. The cure for speech you don’t like shouldn’t be to curtail it, but to create an environment in which more speech can flourish.

2. Support existing laws enabling online forums. 

Credit for much of the robust sharing of ideas and information online can be laid at the feet of Section 230 of the Communications Decency Act (CDA) and the Digital Millennium Copyright Act (DMCA). Although the DMCA in particular was controversial among free speech advocates when it was enacted, it created a good balance between the needs of online forums and those of rights holders. And by immunizing interactive service providers from liability for third-party comments, CDA 230 enabled the flourishing growth of user-generated content, from reviews on Yelp to videos on YouTube. These two stalwarts are the sort of laws those of us in the online community should stand behind — laws that allow breathing space on the Web without limiting free speech. Attempts to gut these laws — whether legislatively (SOPA) or judicially (Viacom’s continuing battle with YouTube) — should be actively resisted by all who care about robust and free-flowing interaction online.

3. Enact a national anti-SLAPP law.

“Strategic lawsuits against public participation” are a form of “lawfare,” a use of the courts to bully speakers into staying silent for fear of incurring the costs of defending a lawsuit. As a company that rates and profiles lawyers, Avvo has seen more than its share of threatened and actual lawsuits. Fortunately, Avvo is based in Washington, which — along with California, Texas and a number of other states — has a robust anti-SLAPP statute. Such statutes level the playing field by allowing those exercising their First Amendment rights to quickly dispose of lawsuits designed only to silence them. And as the last attorney to sue Avvo discovered, losing a SLAPP suit in Washington state also means paying our attorney fees and a $10,000 fine.
But not every state has such protections. In New York, Florida and dozens of other states, it’s still far too easy for speech to be chilled by the prospect of defending against uncertain and costly litigation. To help change this, the Public Participation Project (PPP) is spearheading the effort to enact full anti-SLAPP protections at the federal level. Such a law would end forum shopping in defamation cases and be a powerful development for free speech online. I’m on the board of the PPP, and I encourage everyone with an interest in free speech to support its good work.
As the Internet becomes more and more vital to our daily lives, it is inevitable that legislators will continue to propose laws restricting it. Many of these laws will be cast in moral tones, imploring us to “think of the children,” protect people from cyberbullying or save us from criminals. These may be laudable goals, but it’s incumbent on the Internet community to ask whether the price in free speech online is worth it. And it’s not going to be. There’s no way to restrict just the bad and preserve only the good. Limits and restrictions invariably favor one class of speaker over another, impoverish the discourse and reduce transparency. Ultimately, the answer to concerns about the messiness of communication online lies in what caused the messiness in the first place: Keep the discussion as wide open as possible.
Josh King is vice president of business development and general counsel of Avvo, a free social media platform that provides a health and legal Q&A forum and a directory of doctors and lawyers in the U.S.
Image courtesy of Flickr user Newtown grafitti.