I (along with anyone else who respects the Constitution) say that the best cure for bad speech is more speech, not censorship. However, I frequently hear a whiny retort to that: With the internet, things are different. There is some merit to that argument, since a lie can be spread worldwide in a mere click of a button – splaying falsehoods from Topeka to Taipei. Under those conditions, what is the victim of such a falsehood to do?
Jon Garfunkel makes a very good case for a fascinating way to combat this — and he doesn’t call for any ill-conceived new torts, nor does he call for a repeal to Section 230. Instead, Garfunkel seeks to harness the power of the free market to correct irregularities in the marketplace of ideas. He calls for a nonprofit to create a system whereby people who post information (especially responses to false information) under penalty of perjury.
There would also be a nominal fee (paid to the nonprofit) for filing notarized statements; they would be greater than zero, but less than court & legal fees. In addition, the system could begin to develop an arbitration process for handling the online torts of defamation and privacy exposure if the injured party does not want to pursue it in the courts.
The oath is accepted as a test for sworn truth because there are penalties for lying: the crime of perjury. It’s not so clear that frank truth has a similar correcting mechanism. Neither Wikileaks nor AutoAdmit (nor many other online communities of discussion) appear to have any regular processes for evaluating the claims made on their site for truthfulness; everything is to be taken with the proverbial grain of salt. It’s possible they get at the truth, but it may ultimately be irrelevant to their success. (source)
What a great idea. I can see a few classes of people who wouldn’t support it: The whiny PC types, they want censorship of anything that could possibly make anyone “feel bad.” Unethical lawyers wouldn’t like it either – it would diminish their ability to suck legal fees from whipping their clients into a frenzy. The extremely wealthy and powerful wouldn’t like it either — since it would essentially destroy the ability to file a SLAPP suit.
The rest of us would benefit from unfettered free speech with a verifiable right of reply.
Mr. Garfunkel, please come on down and accept your First Amendment Bad Ass award!
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The Legal Satyricon 
Blawg Review #150
Marc Randazza considers a proposal for the “Internet Notary” to harness the power of the free market to correct irregularities in the marketplace of ideas.
“Kentucky Representative Tim Couch filed a bill this week to make anonymous posting online illegal.
The bill would require anyone who contributes to a website to register their real name, address and e-mail address with that site.
Their full name would be used anytime a comment is posted. The fine would be five-hundred dollars for a first offense and one-thousand dollars for each offense after that.”
It seems there is too much Internet bullying going on in Kentucky. So what if free speech is quelled, little Jimmy needs his his dignity and self-esteem protected.
http://www.wtvq.com/content/midatlantic/tvq/video.apx.-content-articles-TVQ-2008-03-05-0011.html
How about we do this for anything on Public Broadcasting channel that calls itself “News”? I think the lies spread by the main stream media is more harmful than anything on the internet so far.
An expensive “notary fee” is a great way to destroy free speech. If you have something to say then you must pay first. If you’ve got no money then you’ve got no voice! This is a wonderful idea to give the rich even more power. It’s nice to know that the Notary fee would be “less than court and legal fees”, which can run into tens of thousands of dollars. The rich could afford to speak out, but not the poor or the victims of injustice.
The sworn oath will eliminate anonymous opinions and identify exactly who had the audacity to disagree with the rich and powerful. Truth is subjective, so the rich and powerful would file more (not less) frivolous litigation and SLAPP suits to silence their critics. In addition to being sued, your oath sworn under penalty of law, would subject you to a prison term as a bonus.
Prison for those who exercise their right of free speech? What a novel idea. Let’s send everyone to jail who objects to injustice from the rich and powerful. Censorship at its finest!
I think you are missing the point of Mr. Garfunkel’s idea.
1) He suggests a nominal fee.
2) This isn’t a price to speak — it is a notarization of what you said… so that you can affirm to its veracity.
Make sure you read something before you flip out.
I did read it and I did not flip out. Please don’t mock my reply in an attempt to trivialize this attack on free speech.
Yes it is a price to speak. It is another step in a gradual process of eliminating free speech. If not initially required by law, it soon will be.
You are already free to affirm the veracity of your statements by simply posting your affidavit with your comments. You are already free to go to a notary anytime. So there is no need for more laws, rules and regulation, unless you are a lawyer who profits from more laws, rules and regulations.
Regulation begins with the best intentions and only a nominal fee, but it’s not long until the fee is increased and the good intentions discarded. Just what we need: more taxes and fees.
The rich and powerful rely on frivolous SLAPP suits to silence their critics with excessive legal costs. Once a person is identified (by their notarized statement) they are subject to abusive, costly litigation, no matter how frivolous. So the only recourse available to many people is anonymous free speech.
Filing a legal document affirming the veracity of their statement is like waving a flag in front of a bull. It is an invitation to the rich and powerful to challenge that affirmation, thus promoting more litigation in a nation that is already swamped with litigation. The result is that the wealthy often win by default as the poor person can’t even afford to hire an attorney to begin with.
Looked like one to me. Sorry.
Perhaps Garfunkel’s solution isn’t perfect. Perhaps it will do nothing, and perhaps even it would cause unintended harm.
Nevertheless, anyone who would call it an “attack on free speech” might be a candidate for the “tinfoil hat brigade.”
Marc,
Thanks for your endorsement! I did craft this with the intention of appealing to the free speech balancers as well. I am still awaiting their thoughts.
And thanks for your response to MaryBeth. I’d have to add that there’s no magic solution to redressing the grievances of everyone who feels harmed by speech. As you point out, this could be a practical alternative to a lawsuit which could enable the public clearing of a name.
Also, forgive me for my apprehension about what the “First Amendment Bad Ass” award would look like, let alone where I would hang it. I do see that you had referred to this at one time as your “First Amendment Mensch,” which is something to write home about.
The First Amendment Mensch was just an honorable mention… the FABA is much more prestigious.
Marc: thanks for clarifying!
Marybeth: I am open to all angles of sensible challenges.
Now, take the case which inspired this: Anthony Ciolli. He already was exposed harmfully (whether it was malicious is up for a court to decide). Why he didn’t sign an affidavit and post it online? I will ask him. But I suppose many other folks wouldn’t even think to do this.
And just who is the “rich and powerful” in this case? Many defamation suits do not involve the rich and powerful. Anyways, of course the rich and powerful will go through litigation, because it is so imbalanced as you say. I am merely offering mitigation.
As for “more taxes and fees,” I can’t seriously accept that argument. If you want to have a guaranteed result come up in Google, and you have no luck getting it to show up organically, you pay– for an adword, to Google, Inc. Or else you can pay Reputation Defender (also named in the lawsuit) $5 a month for “protection” money. So it’s one Lessigian constraint (the market) filling in for another (architecture).
Jon
I don’t think you’re actually endorsing “Reputation Defender,” but just in case, I’d like to advise against that as a method. See AutoAdmit’s Challenge to Reputation Defender.
I can post more links too. I get a funny feeling that those guys are going to turn out to be the real goats in Ciolli v. Iravani.
Of course I am not endorsing Reputation Defender! If it sounded llike I was doing so, there must be a problem with my syntax. I don’t think you misunderstood, but just in case, I was saying that MaryBeth was figuring that I was suddenly introducing an economic constraint to the equation. Not at all: one can, today, buy some protection from private companies like Google or RD.
I am fully well-versed in the link you post there; I read it in June. That has largely been the basis of my opinion about them. Their continued use of “DESTROY” to describe their methods in their marketing materials is an abuse of the English language.
No, it seemed very unlikely that you were. But, I just wanted to be sure.
Here are some more links about them:
Evil: Ronnie Segev & ReputationDefender Can Eat A Dick
Irony at Cada Vez
The Death of Online Gossip
Thats what I found in 5 minutes.
Watch Ciolli v. Iravani… as the facts in that case come out, I have a funny feeling that you’ll get even more disgusted with Reputation Defender.
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