Chilled Prodigy

An "anti-censorship" libel ruling threatens choice in cyberspace.

Eugene Volokh from the August/September 1995 issue

(Page 2 of 2)

This is most obvious when the oversight focuses on particular subjects or particular viewpoints: The reason you're reading this magazine is that you like the screening that its editors perform. But screening out profanity or abuse is valuable, too. People don't just want raw information. They also want a sense of intellectual community--the exchange of ideas among people who are on friendly, polite terms.

Insults and profanity can destroy that community, can make the discussion seem more like a war zone than a living room. (This has happened with some frequency on many unregulated cyberspace forums that I've seen.) And when this happens, many people just drop out. People who've been "flamed" enough times, or have seen others flamed, may find that the emotional costs of participating exceed the benefits.

If the government tried to protect people by prohibiting vulgarity on all services, or by ordering that all insults be promptly deleted, that certainly would be censorship. But Prodigy is just a private organization which lets people voluntarily enter into a private community, a community--much like a private club or even a private home--in which certain norms of behavior are enforced.

Before the Stratton Oakmont v. Prodigy decision, people had a choice: They could participate in an unrestrained forum, such as CompuServe, or a more restricted one, such as Prodigy. But if this decision stands (Prodigy is planning to appeal it), people will lose this choice. Faced with the risk of $200 million lawsuits, Prodigy and similar services will almost certainly drop their screening facilities. Screening may be a valuable feature, but it's not valuable enough to justify the tremendous increase in legal peril.

So what have we gained as a result of the court's decision? Not security: You and I are no more protected now against on-line defamation than we were before. Because a service can escape liability simply by letting all the messages through, most services will do exactly that, and future libel plaintiffs will be out of luck. And where before we might have gotten some protection from the service screening out or deleting the worst of the abuse, now we won't even get that.

Nor have we gained liberty. Sure, we might now be able to post offensive messages on Prodigy, though if we wanted to send offensive messages we could have done that all along using CompuServe, or any of a number of Internet service providers. But if some of us would prefer to participate in a more temperate conversational environment, instead of a free-for-all, no one will be able to safely provide it for us. And if flaming and abuse scare people away from the on-line services, all of us will lose the advantages of those people's contributions.

The great virtue of the free market is that it tends to give people what they want, not what the government thinks they ought to want. Those who want an anarchic on-line environment could get it; those who want a more peaceful community could get it, too. The law, though, is inherently Procrustean: When the court speaks of the "freedom of communication in Cyberspace," that's freedom of communication only on the terms that the court prefers. Another lose-lose proposition, brought to you courtesy of our legal liability system.

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