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Bad Words and Good Samaritans: Defamatory Speech in Cyberspace
Unformatted Document Text:  22 distributor if it failed to act in an expeditious manner. Given the relative risks, the prudent ISP would have little incentive to zealously defend the First Amendment rights of the subscriber. Beyond this discussion of the chilling effect, it is important to note that holding ISPs responsible as distributors moves away from the broader principle that more speech is the best response to bad speech. “Whenever one was displeased with the speech of another party conducted over an interactive computer service,” the Court of Appeals worried in Zeran, “the offended party could simply ‘notify’ the relevant service provider, claiming the information to be legally defamatory” (p. 333). Rather than encouraging a new generation of plaintiffs to seek satisfaction from ISPs and the courts, a better policy would be to encourage aggrieved parties to use the Internet to answer defamatory speech. Justice Brandeis articulated the philosophy underlying this view of the First Amendment in Whitney v. California (1927): “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such, in my opinion, is the command of the Constitution” (377). This idea that more speech is the best solution to harmful speech holds especially true in cyberspace (Branscomb, 1995, 1671-1672). Because of the low cost, relative ease of use and capacity to accommodate an almost infinite number of speakers at once, the Internet provides the perfect forum for counteractive speech. In the words of Godwin (1996), “If some bozo writes 100 lines of false statement and innuendo about your self life or personal habits, you can write 500 lines of point-by-point refutation. It’s a ‘day in court’ that comes cheap.” All of this is not to suggest that there should be no redress for defamation on the Internet. Rather, it is to suggest that the solution is not to punish the intermediary, but rather to hold speakers who create and post unlawful material responsible for their expression. In adopting

Authors: Herbeck, Dale.
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distributor if it failed to act in an expeditious manner. Given the relative risks, the prudent ISP
would have little incentive to zealously defend the First Amendment rights of the subscriber.
Beyond this discussion of the chilling effect, it is important to note that holding ISPs
responsible as distributors moves away from the broader principle that more speech is the best
response to bad speech. “Whenever one was displeased with the speech of another party
conducted over an interactive computer service,” the Court of Appeals worried in Zeran, “the
offended party could simply ‘notify’ the relevant service provider, claiming the information to be
legally defamatory” (p. 333). Rather than encouraging a new generation of plaintiffs to seek
satisfaction from ISPs and the courts, a better policy would be to encourage aggrieved parties to
use the Internet to answer defamatory speech. Justice Brandeis articulated the philosophy
underlying this view of the First Amendment in Whitney v. California (1927): “If there be time
to expose through discussion the falsehood and fallacies, to avert the evil by the processes of
education, the remedy to be applied is more speech, not enforced silence. Only an emergency
can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such,
in my opinion, is the command of the Constitution” (377).
This idea that more speech is the best solution to harmful speech holds especially true in
cyberspace (Branscomb, 1995, 1671-1672). Because of the low cost, relative ease of use and
capacity to accommodate an almost infinite number of speakers at once, the Internet provides the
perfect forum for counteractive speech. In the words of Godwin (1996), “If some bozo writes
100 lines of false statement and innuendo about your self life or personal habits, you can write
500 lines of point-by-point refutation. It’s a ‘day in court’ that comes cheap.”
All of this is not to suggest that there should be no redress for defamation on the Internet.
Rather, it is to suggest that the solution is not to punish the intermediary, but rather to hold
speakers who create and post unlawful material responsible for their expression. In adopting


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