By Phil Rockrohr
Photo by Jason Smith

We decided to put together this event because every law school has students who have been intimidated by anonymous personal gossip, and we know that it injures the climate of instruction."”
—Martha Nussbaum
Ernst Freund Distinguished Service Professor of Law & Ethics

Anonymous allegations of licentiousness are a common, if not accepted, form of speech on bathroom walls. Typically, few people view the written attacks before they are removed.

Such is not the case with the Internet, where anonymous postings of nasty comments, largely unregulated, remain indefinitely for worldwide view. Like the bathroom wall graffitist, the Web attacker largely continues life free of responsibility for his attack. But unlike the graffitist’s target, the Web victim may not erase the despicable, even untrue allegation.

Laws regulate many Internet excesses, including identity theft, copyright infringements, plagiarism, and scams of various sorts. But the legal world is only beginning to grapple with how to control harmful gossip in the unruly world of the Web. At a Law School conference entitled “Speech, Privacy, and the Internet: The University and Beyond,” held late last year, faculty from Chicago and other invited scholars examined the phenomenon of Internet gossip—particularly the harassment of women on the Web—while discussing possible remedies.

“The purpose was to confront the problems for educational institutions posed by the rise of intrusive and abusive anonymous gossip on websites, much of it targeting named female students,” said Martha Nussbaum, the Ernst Freund Distinguished Service Professor of Law & Ethics in the Law School, Philosophy Department and the Divinity School, who helped shape the event. “We decided to put together this event because every law school has students who have been intimidated by anonymous personal gossip, and we know that it injures the climate of instruction.”

Fifteen participants and presenters addressed privacy, free speech, anonymity, gender, and reputation, with a wide range of opinions on which policies would best address those issues. Cumulatively, the conference developed arguments in favor of certain types of regulation, in particular non-anonymity.

‘Hypothetical’ Trade for Anonymity

Saul Levmore, Dean of the Law School, proposed a “hypothetical bargain” among citizens in which the users and providers of the Internet marketplace will arrive at various solutions to address the defamation and costs inflicted by as-yet unregulated anonymity.

“In some settings, notice-and-takedown is a salve,” Levmore said. “In other settings, a right of response might be superior. In others, liability for defamation might be right. It is hard to believe that a lawless Internet is the right or stable solution, at least when we compare it to other media.”

Given the opportunity to vote on the issue, the public would likely vote against freedom of anonymous slurs, he said. “I’m open to many remedies,” Levmore said. “The part that bothers me is the existing situation in which the Internet is a legal outlier, where it is easiest to slur irresponsibly.”

Student Presenters, Observers

Karen Bradshaw, a second-year Law student who conducted her research with Souvik Saha, explored the impact of social networking websites on real-world academic settings. Bradshaw asked what role, if any, school administrators should play in monitoring and punishing online behaviors that would be unacceptable in the traditional school environment. Abuse on social networking sites has been linked to professional and reputational damage, sexual harassment, and increased suicide rates, she said.

“Unlike traditional academic communities, online communities are not monitored by academic administrators and faculty,” Bradshaw said. “As a result, participants may engage in hate speech and defamation with lessened fear of reprisal. Administrators largely fail to recognize the pervasive and community nature of social networking websites. Analogizing online communities to note passing or gossiping misses the point and produces inadequate responses.”

Third-year law student Ruben Rodrigues argued that social networking sites exhibit a number of characteristics common to natural monopolies. As long as a competitive market exists for social networking, users can be expected to choose providers that effectively balance the costs of diminished privacy with the benefits of enhanced social networking, Rodrigues said.

However, because the value of a social network is dependent on the number of its users, ultimately one network will emerge as the most valuable or dominant, he said. “Unless you have the threat of entry to force competition, they don’t need to worry about your privacy anymore,” Rodrigues said. “They can start to extract what I’d consider “monopoly rents.’”

Legal scholars need to think hard about whether they want to continue to treat the Internet as the “outlier,” or exception among other media, said Zak Rosenfield, a second-year Law student. When current law regulating Internet speech was established, the goal was to give the new medium “some breathing space to develop more fully,” Rosenfeld said.

“I think a reasonable time has passed, and we should rethink some of that extreme cushion we have given the Internet that we don’t give almost any other medium of communication,” he said.