[A work in progress]

In the realm of Free Speech, there are the Absolutists and the Balancers. The abolutists read the First Amendment literally and without qualification: Congress shall make no law…abridging the freedom of speech, or of the press.” As for the balancers, well, it’s not universally clear that they have been represented by a cohesive philosophy.

Search on Google for the phrase “free speech absolutists” and you get a thousand results. (The only source of “free speech balancers” is yours truly). And then look for the counterpart sentences that say something like “between, on one hand, the free speech absolutists, and on the other hand, the…” You never find the same counterpart twice. Here’s what I’ve found:

• “censors”
• “those who would regulate speech” (UNESCO)
• “the hate speech code advocates”
• “those who favor restrictions on certain types of speech or expression, including hate speech, pornography, obscene art, sexually explicit library materials, and flag burning.”
• “those concerned about the way in which racist symbols might intimidate and further marginalize already isolated students, faculty and staff of color, on the other”
• “people who believe that speech has an impact and can hurt people.”

None of these quite roll off the tongue, let alone hint at a cohesive philosophy.

Richard H. Fallon, Jr. referred to specifically to “balancers” as the direct counterpart in a 2007 article “Strict Judicial Scrutiny” in the UCLA Law Review). In addition, the University of Missouri at Kansas City law school provides this definition:

Balancers believe that in every case courts should weigh the individual’s interest in free expression against the government’s interest in restricting the speech in question.  Most balancers hold that the presumption should be in favor of free expression–that there is a thumb on that side of the scale–which can only be overcome with a showing of an especially strong governmental interest.  

There is a need for a counterpart because absolutism exists in theory, though not very much in practice. Legal scholar Cass Sunstein has asserted that there really are no such absolutists. Furthermore, the revered defenders of free speech also happened to be the great balancers. Justice Brandeis established the modern notion of privacy law, on of the key bulwarks against untrammeled speech. Justice Holmes famously carved out the exception for “clear and present danger.” First amendment champion author and journalist Anthony Lewis used another phrase of Holmes’s for his current book, Freedom for the Speech We Hate. In it he concedes numerous balanced positions: Lewis even shies away from an unqualified shield law which virtually sacrosanct among members of the press. (Justice Black, the most ardent first amendment literalist, didn’t see conduct or fashion as speech; this doesn’t make him a balancer).

It’s likely that many absolutists and balancers are closer in opinion than the extreme positions. Absolutists certainly do not want to protect libel; not all balancers believe in campus speech codes.

There is likely one fundamental difference. Weighing an issue of free speech vs. unwanted exposure, an absolutist will wring his hands, read the text of the U.S. Constitution aloud, offer some ominous warning about the “chilling effects” of censorship, canonize a first amendment martyr, and render judgment. They will do everything but look at the facts of the situation. By contrast, the balancer will consider it on a case-by-case basis. They will consider the concerns of the victim, and try to determine whether the political and technological structures have failed. The absolutist wants speech, but the balancer wants truth.

In my work at Civilities, I’ve been a balancer long before I realized it. Here’s a sampling of the cases I’ve researched over the years:

• Doe vs. Cahill
• AutoAdmit
• Wikileaks

Despite Sunstein’s observation about the impossibility of absolutists, it still seems to me that there is an overriding tide free speech absolutism, propelled by the strong libertarianism undercurrent found online. Thus I am seeking out others

I hereby propose a cohesive philosophy for the Free Speech Balancers.

Motto

“Speech denied is speech deferred; privacy breached is privacy broken.”

Symbol

The feather. Remember the story about the slanderer who seeks forgiveness. His Rabbi told him to cut up a pillow and scatter it to the wind– and then, after he’d done that, to go and collect the feathers.

Strategy

One of the key battlegrounds today between absolutists and balancers is on anonymity. The absolutists are happy to cite examples of pseudonymous journalists. But most of these examples are from pre-1789, when the Bill of Rights was introduced. Two decades ago you’d find the occasional columnist who picked a pseudonym like Stanley Bing or Robert X. Cringely. Their authors’ identities were never the level of state secrets, and they rarely abused their anonymity to attack people.

Today the”no one knows you’re a dog” ethos, is still common in many parts of the Internet. It presents a situation quite unprecedented in the history of American civic life. Anonymity destroys the symmetry of trust expected in human relationships.

Many of the tragedies of Internet communities are traceable to untraceability. One crucial point in the tragedy of Megan Meier was when her mother Tina sought to determine who was behind the account of her new daughter’s new MySpace friend. “Tina says that she called the police to try to find out whether Josh was legitimate, to no avail,” Lauren Collins wrote in the New Yorker.

The answer is to develop a new doctrine to combat the enormous asymmetry inherent in anonymity. Perhaps we could give new life to the “Right of Response” or otherwise call it “Fair Confrontation.” In research into many of these cases, I have found that victims of harmful speech want to be able to face their accusers openly. That is the protection afforded to the defendent in criminal procedures by the Sixth Amendment.

This doctrine should be promulgated through different Lessigian constraints:

Normative: Internet users must be mindful of the powerful asymmetry of of anonymity, and should prefer to participate in Internet forums where their rights of response or fair confrontation are guaranteed.

Architectural: Online communities are run by software choices, and these software choices should be designed to support the values of fair confrontation. See Comment Management Responsibility. But the Internet as well needs some reform; the WHOIS lookup system as used with the Domain Name System has not fully built in a solid mechanism for balancing anonymity and traceability– See the Protocol for Online Abuse Reporting.

Legal: Balancers should actively call for reform in the law and in its interpretation. The CDA-DMCA disparity has been recognized for years: CDA §230 affords victims of injurious speech less protections than CDMA §512 does for victims of copyright theft. Judicial interpretation of §230 has been increasingly liberalized to expand immunity, ignoring the

(I have yet to acknowledge above trailblazers I know in the balancer movement — I am contacting them to see if they want to lend their name to this.)