The New Liberty of Expression

News article over the past few weeks have crystallized a troubling development in the Liberty of Expression amplified by the internet. In the last few weeks, a movement of conspiracy theorists have come forward to claim that the Sandy Hook Elementary shootings never took place. Their claim is that the government staged a vast media event with "crisis actors" in an effort to support a gun control agenda.  In addition to making these comments publicly for the media, conspiracy theorists have been directly contacting rescuers and victims of the tragedy with anonymous and hurtful comments.

In the "marketplace of ideas" theory, speech of little value will be shouted down and drowned out by criticism. But how do you drown out anonymous postings? The Liberty of Expression once carried the responsibility to face those who were critical of your expression. That responsibility has been removed by the internet's anonymity. The delicate balance between individual liberty of public comment and individual liberty to be let alone has been thrown out of kilter. Speech that is likely to result in imminent physical harm is not protected.  Yet, speech that is likely to result in imminent emotional harm is protected. In the Westboro Baptist Church case, the Supreme Court affirmed the right of protesters to express their views publicly no matter how repugnant or hurtful.  But physical protests can, and have been, controlled with appropriate time, place and manner restrictions to temper the damaging effects while allowing the expression.  How do we do this with anonymous postings on the internet?

Since this post was originally published, similar issues have arisen regarding harassment of the victims of the Colorado movie theater shooting.

In a less tragic but similarly vexing incident, it appears that an autobiography of Michael Jackson has become the target of a coordinated internet attack by Jackson's fans.  The book's author and publisher are helpless to counter an avalanche of critical reviews posted by anonymous readers, sometimes including false and misleading information. In the past, when only journalists had the resources to publish reviews, reasonable journalistic standards provided protection against false statements. Now, it's a free for all with few rules.

How can the law respond to these and similar challenges?

I have declined to post videos here so as to avoid giving a further forum to the Sandy Hook deniers.  YouTube hosts dozens of these videos with more coming every day.