I’m continue to serialize my forthcoming UC Davis Law Review article What Cheap Speech Has Done: (Greater) Equality and Its Discontents; you can read the Introduction, but in this post I’m talking about how “cheap speech” has led to criminal remedies for the disclosure of private facts. Recall that the article is mostly descriptive, focusing on what’s happening, for better or worse.
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Some courts are also issuing broad injunctions against “harassment” or “stalking,” often barring defendants from posting anything at all about plaintiffs. And these orders are often just responses to defendants’ repeatedly criticizing plaintiffs, even in the absence of defamation or true threats.
Let me offer three examples:
The poet: Linda Ellis wrote a poem called The Dash, about life and death. Many people found the poem moving, and posted it on their own webpages — only to draw letters from Ellis threatening copyright infringement lawsuits, and demanding payments of thousands of dollars as settlements. People began to criticize her in discussions on a site run by Matthew Chan, which had been set up to criticize allegedly excessive demands by copyright owners; there were eventually thousands of posts condemning her. Ellis then sued Chan and got an “antistalking” injunction, which ordered Chan to remove “all posts relating to Ms. Ellis” from the site — not just allegedly defamatory posts, not just allegedly threatening posts, but all posts.
The police officer: Patrick Neptune believed police officer Philip Lanoue cut him off in traffic, gave him an unjustifiable ticket, and then informed Neptune’s parents of the incident. Neptune responded by criticizing police officer Philip Lanoue on the site copblock.org, sending several letters to public officials, and sending three letters to Lanoue’s home address. Lanoue got a court order barring Neptune from, among other things, “posting anything on the Internet regarding the officer.”
The ex-girlfriend and successful video game developer: Zoë Quinn, a prominent video game developer, had a short romantic relationship with Eron Gjoni, also a video game programmer. After the relationship ended, Gjoni posted a webpage that condemned what he saw as Quinn’s emotional mistreatment of him. This led to a torrent of online criticism of Quinn by others, including some threats of violence, partly because Gjoni’s post was interpreted as suggesting that some of the favorable reviews of Quinn’s games were written by reviewers who were themselves romantically involved with Quinn. That in turn led to an ongoing debate between Quinn’s supporters and opponents — the Gamergate controversy, which is too long and complicated to detail here. But what is significant for our purposes is that Quinn got a court order forbidding Gjoni from “post[ing] any further information about [Quinn] or her personal life online or . . . encourag[ing] ‘hate mobs.'”
These are just a few examples out of many more that I can offer. Many appellate courts have rejected such orders as unconstitutional, though others have upheld them. I discuss elsewhere why I think the injunctions do violate the First Amendment.
Here, I just want to speculate about why courts are so willing to enter such extraordinarily broad orders. And the reason, I suspect, is connected to the democratized, cheap speech provided by the Internet.
Repeated criticism, even if it consists of opinions and accurate factual statements, is undoubtedly disquieting. It can damage reputation, often using claims that a judge may view as unfair, even though not libelous. That is especially so if the criticism becomes prominent in Google searches for one’s name, and defines one to strangers or casual acquaintances. And if the criticism gets more of a direct readership, for instance if it gets redistributed via Twitter or Facebook, it can lead to threats against the person being criticized, or even physical attacks.
Such criticism can be perceived as intruding on privacy by making its targets feel that they have become the object of others’ curiosity or amusement. The law does not generally treat that as actionable invasion of privacy (outside the narrow zone of the disclosure of private facts), but I suspect many people perceive it as an intrusion, and some judges may agree. The criticism, especially if repeated and seemingly obsessive, may make the targets feel vaguely menaced, even in the absence of constitutionally unprotected true threats of violence.
Now all of this, by itself, cannot save the injunctions from being invalidated on First Amendment grounds, and I think almost no judges would enjoin such speech in a newspaper. Yet for some reason, some judges are willing to enjoin such speech by individuals. Why?
I suspect this flows from three related reasons, both again connected to cheap speech and the democratization caused by the Internet.
[1.] Precisely because newspapers cost money to publish, and try to make money from subscribers or advertisers, they tend to be accountable to their readers and tend to publish what their readers want, in the style the readers want. That a newspaper is printing something itself indicates the likely value of the speech. Even a judge who found the speech loathsome or pointless might have thought twice about imposing his own views in preference to the views of editors and readers. Likewise, if an established political advocacy group thought some speech worth saying, that was evidence that the speech had value to public debate.
[2.] Newspaper speech can have many motives, but the most plausible ones tend to be public-regarding — a desire to inform the public, or to spread a particular perspective about the world. Perhaps a newspaper is just pandering to readers’ tastes, but even that means that they want to entertain or inform readers about something that many readers care about. It’s possible that newspaper writers are just trying to wreak private vengeance, or are irrationally obsessed. But it seems unlikely, especially since such motivations (at least if transparent enough) are likely to lead to market pushback from readers.
And the same is likely true for speech by advocacy groups: whatever a judge might think of their ideology, it seems likely that the speech was motivated by ideology. Even a judge who suspects that base motives are at play (e.g., that a rich publisher is trying to get revenge against a politician or business leader who had frustrated the publisher’s business plans) might be reluctant to enjoin such mainstream speech based on speculation about motive.
But once individuals can easily speak, without having to persuade any intermediary about the worth of their speech, judges are likely to see much more speech that seems pointless and ill-motivated. Motive turns out to be very important under many harassment or stalking statutes, which condemn speech that is said with “the intent to annoy” or with “no legitimate purpose.” Indeed, some courts have taken the view, in government employee speech cases, that speech motivated by purely personal motives is to be treated as on a matter of “private concern,” even when its content would suggest that it’s on a matter of public concern.
Of course, such individual speakers would likely take a different view of the value of the speech, and of their own motives. I suspect that they think they really do have valuable things to say, and that their motives are to inform the public.
Indeed, none of these cases, with the possible exception of Van Valkenburg v. Gjoni, involve speech that would likely have been seen as “purely on a matter of private concern” if it had been published in a newspaper or had been distributed by a political advocacy group. And even Gjoni’s speech, tied as it is to broader discussions of romantic relationships, alleged emotional abuse, and the like, may well be seen as on a matter of public concern — compare, for instance, Bonome v. Kaysen, where a woman’s published book that discussed the sexual details of a past relationship was seen as being enough on a matter of public concern to defeat a disclosure of private facts lawsuit. Explaining how one feels, and who made one feel that way, is an important part of telling the story of one’s life, whether in a memoir or on a blog post.
If I’m right, then some judges just aren’t trusting individual speakers in the newly democratized mass communications system to define what is worth talking about, and to talk about it without being second-guessed about their motivations. Media organizations and political organizations are given latitude to say even things that judges may view as unfair or cruel. But private speakers are sometimes given less latitude — and the judges think that threatening criminal punishment for violating an injunction is the necessary means for stopping such speech.
[3.] When a judge sees an individual defendant’s speech as a campaign of defamation — and indeed thinks that the defendant is obsessed with criticizing the plaintiff, perhaps to the point of irrationality — trying to forbid just defamatory statements may seem futile. The judge may suspect that any future criticism by the defendant of the plaintiff, or perhaps any speech at all about the plaintiff, would just degenerate into further defamation, and a prophylactic prohibition is needed to keep that from happening.
Indeed, remedies law sometimes allows injunctions that go further than the initial violation, even injunctions that forbid behavior that, absent the initial misdeed, would not be tortious. First Amendment law, I think, does not allow such preventative measures when they ban otherwise protected speech based on its content. But judges who view an individual defendant as a dangerous kook may react in ways that they wouldn’t when dealing with an established media outlet.
As I mentioned, I think that such a view is wrong, and that speech outside the traditional First Amendment exceptions (speech that isn’t, for instance, libel or true threats) should remain free even if judges think it’s worthless or ill-intentioned, without regard to the speaker’s identity. But I think these injunctions come about because judges see that everyone can now speak the way that established media and political organization have long spoken — and judges often don’t like it.
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