Shame and gossip and questions of personal reputation have been with us for millennia. In our time, however, they’ve gone electronic. The resulting change in the way the world communicates with itself is as significant to speech as anything since the invention of moveable type. Daniel J. Solove, a blogger, who teaches at George Washington University Law School, has thought hard about this area of the blogosphere and given us The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, a fascinating mix of sociology, legal theory and speculation.
Law schools are nothing if not centers of extreme cases. Solove makes much of one that found wide currency on the web: the case of the dog poop girl. On a South Korean subway a young woman let her lap dog crap on the floor. When other passengers suggested that she might want to clean up the mess, she couldn’t be bothered and told them to mind their own business. There were cell phones in evidence and the deed and the woman’s response were recorded.
The pictures went straight to the Internet and were flashed around the world, and discussed at length in blogs and chat rooms. Posters and parodies began to appear. The details of the miscreant’s life became fair game. Her shame was great and it didn’t go away. She got what she deserved, I say, and so perhaps do you.
But was the punishment – apparently shame everlasting – a wee harsh? It was a sort of rough justice but even if this dimwit were to commit herself to a lifetime of dressing in sackcloth and cleaning Korean gutters as penance, she will still be forever known as the dog poop girl. At least she was guilty of something – being amazingly annoying and insensitive, maybe. As many people have pointed out, she brought it all on herself.
Solove is looking for more subtle and productive remedies than endless electronic disapproval, which has a satisfying side to it, but is essentially anarchic. He traces the history of shame and of the legal sanctions for sin – all those dunking stools and public stocks and scarlet letters that the Puritans employed are early American examples.
The stories of innocence traduced – unlike the dopey things people bring on themselves — are legendary in the blogosphere. John Seigenthaler, senior (not to be confused with his son, John, junior, a TV news reporter) was a member of the Kennedy administration and later worked for Robert Kennedy. He’s now retired. There was an entry about him in Wikepedia, outlining his contributions. Then some rascal added that Mr. Seigenthaler was complicit in the assassinations of JFK and RFK. The assertions were apparently made up but Wikipedia accepted it.
It was quite difficult to trace the poster who knew how to cover his electronic tracks. Mr. Seigenthaler washed his hands of it but a reporter tracked the villain down. In the end, Wikipedia changed its procedures for additions to its many entries, though a cloud still lingers over this elderly patriot’s head.
Once something is posted on the web, it never goes away. And that is new in the history of gossip, news, and reputation. Law Schools thrive on these cases. The pedagogical assumption is if the law can account for the unlikely, it will be better able to deal with the likely, which touches us all.
A large question in all this is the voluntary posting of intimate details of one’s life. Pity the poor student who puts in his Facebook entry something like, “I like to smoke dope and have sex in the library.” Ha ha, his friends say. A few years later, he’s interviewing for a job and what do you know – he doesn’t get any offers.
Solove quotes Richard Posner to the effect that people shouldn’t be able to hide discreditable facts about themselves. Maybe not, but that doesn’t mean you ought to advertise your foolishness.
Solove also reports cases of people telling of their own sexual escapades. Fine for them, if that’s what they want, but they often identify their partners who may not feel quite so sanguine about having a lot of others reading about their past intimacies. A law that can sort out all these cases and balance freedom of speech and privacy has yet to be written and from the sloppy ways laws are often concocted, I wouldn’t bet on one being established any time soon.
The heart of Reputation, though perhaps not the most entertaining part, is Solove’s look at three possible legal approaches to this possibly intractable problem. “The libertarian approach” holds that information wants to be free and we curtail it at our peril. Issues like libel and defamation are less important than a nearly absolute freedom of speech. Under this approach, the dog poop girl got what she deserved and Mr. Siegenthaler paid the price for a larger freedom.
The libertarian position was set forth by John Perry Barlow in a 1996 posting of his Declaration of the Independence of Cyberspace. “Governments of the Industrial World, you weary giants of flesh and steel… You have no sovereignty… You have no moral right to rule us nor do you possess any methods of enforcement…” Barlow’s is what you might safely call an extreme libertarian position.
Solove calls the opposite view the authoritarian approach. It is “designed to employ strict controls over the spread of information.” That amounts to a lot of censorship and seems as extreme as the outer fringes of the libertarian approach. Solove points out, “lawmakers often find such approaches appealing.” Less work for them, I suppose, and less freedom for the rest of us. Authoritarians often propose bans on troublesome kinds of speech. It is a policy that seems nuance-free.
Solove calls his own favored approach, “finding a middle ground.” He points out the differences between gossip offline and online and advocates a tort-based system. Solove would attempt to mediate among the various interests and rights, certainly the right to anonymity under certain circumstances and its opposite, accountability. It’s very much an “on the one hand and on the other hand ” approach. What else could a lawyer suggest? It’s sensible and cautious and it might even work.
Solove marshals a wide range of literary, historical and legal references. He’s read widely and thought hard about this devilishly complex situation. He acknowledges that most of the millions of postings and blogs that circulate every day go unnoticed and unread and neither harm nor help anyone. The inherent risks are part of the price we pay for the pleasures and value of the information age.
Solove well knows that the Internet is here to stay and he embraces it. It’s just that he would like a more polished set of working rules for it. I, a non-lawyer, wonder if the law can do anything significant about the dilemmas he outlines.
Here’s one literary quotation he missed, that speaks to the knotty problem of trying to police the Internet. It’s from Henry IV. “I can call spirits from the vasty deep,” Glendower says. Hotspur replies, “Why so can I, or so can any man. But will they come when you do call them.”