Ronald Dworkin on Citizens United: a corporation is a legal fiction without opinions of its own.

Ronald Dworkin criticizes  the Supreme Court’s Citizens United decision — ruling that corporations are entitled under the First Amendment’s guarantee of free speech to an unlimited right to contribute money to political campaigns — for the same two reasons I have. First, the majority overturned precedent while hypocritically espousing their respect for the concept of adhering to precedent, and, second, because it is absurd to treat a corporation for First Amendment persons as the equivalent of a human being:

The opinion announces and perpetuates a shallow, simplistic understanding of the First Amendment, one that actually undermines one of the most basic purposes of free speech, which is to protect democracy. The nerve of his argument—that corporations must be treated like real people under the First Amendment—is in my view preposterous. Corporations are legal fictions. They have no opinions of their own to contribute and no rights to participate with equal voice or vote in politics.

The South Butt Answer to the North Face

For a brilliant combination of technical perfection, persuasion, and humor of a sort I’ve never before seen in an answer to a complaint, you’ve got to see the answer filed by South Butt to the complaint filed by North Face alleging that South Butt’s name and its slogan, “Never Stop Relaxing,” infringe North Face’s trademarks in its name and its own slogan, “Never Stop Exploring.” I will be forever grateful to techdirt for bringing this document to my attention.
The South Butt Answer to the North Face

Archers Daniel Midland abuses copyright law to censor criticism — corporations have the right to free speech, but not the people who criticize them?

Some corporations apparently believe in free speech for themselves but not for individuals. The first video below is a deadly dull piece of propagandistic pap in which Patricia A. Woertz, Chairman, President and CEO of Archer Daniels Midland (ADM), USA drones on (someone get her better training for dealing with the media!) about ADM’s profound importance to feeding the world. The piece was produced in advance of the recent Annual Meeting of the World Economic Forum in Davos, Switzerland.

ADM has, top it mildly, been the subject of considerable ire, criticism, and even criminal prosecution for price fixing (the subject of Matt Damon’s recent film The Informant and Fair Fight in the Marketplace, an excerpt of which appears below’s Woertz’s blathering), political corruption, destruction of the rainforests, and the forced labor of children.

A couple of days ago I posted on my Facebook page what I thought was a hilarious edit of the Woertz video in which some of her original words were retained and many were dubbed over to make it appear as if she were speaking openly on behalf of an evil multinational bent on the gross and horrific exploitation of the world and especially of multinational food markets. I thought it was hilarious piece of political critique. No one could have mistaken it as an “official” ADM production, but plainly it hit a nerve at ADM.

Today I noticed that when I click on the video on my Facebook profile a message appears that it is “no longer available due to a copyright claim by Archers Daniel Midland Company” and that if I click through to YouTube there’s no page for the video at all, not even a page with the same empty video box and takedown message.

This is outright copyright abuse. Criticism is fair use. When anyone asks whether in fact fair use is grounded in the Constitution’s guarantee of free speech, all you need is to think of a situation like this — one can appropriate copyrighted works to criticize and parody the copyright holder. And to use the copyright laws to silence that critique has nothing to do with protecting intellectual property and the rights of a creator to profit from his, her, or its creation: it’s unconstitutional censorship! (Peter Bouchard wrote a good summary yesterday on ” The Battle against Bogus Takedowns, a topic I’ve touched on in the past.”

Corporations = individuals? Confusions in economic theory and First Amendment jurisprudence

Metaphors are tricky things. Corporations are “persons” under the law in many respects, just as you and I are. And we treat corporations as rational individuals in the market. These figurative equations of legal fictions with human beings certainly have their utility, but they easily can be pushed too far. Individuals at AIG were making individual fortunes based on the income they were bringing into AIG for selling credit default swaps. Those individuals were making and would retain those fortunes even if, as turned out to be the case, AIG might not have sufficient funds to pay off the obligations those credit default swaps imposed on AIG. In other words, if one treated AIG as a rational person, one would suppose AIG would never expose itself to a real risk of obligating itself to pay more than it had in reserve. But AIG is merely a corporation, and the individuals actually making the decisions on behalf of AIG had every incentive to get what they could, subject AIG to irrational risk, and be able to walk away with their tens of millions of dollars.

And now the Supreme Court has overturned over 100 years of precedent permitting limits on corporate contributions to political campaigns because such limits constrained free speech and, according to the truism announced by Justice Kennedy’s majority opinion, ”Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” But corporations don’t make decisions about how to spend money on campaign contributions — the individuals who control the corporations do. So what the Supreme Court has done is to remove any limits we might put on corporate CEOs to spend corporate money to advance the interests that indubitably are intended to redound to the benefit of those individual CEOs. I wouldn’t limit the ability of CEOs and shareholders to make individual contributions to political campaigns, but why are we treating purely legal entities like they are made of flesh and blood?

As Buzzflash pointed out recently, Thom Hartmann in his book Unequal Protection explains:

Prior to 1886, corporations were referred to in U.S. law as “artificial persons.” but in 1886, after a series of cases brought by lawyers representing the expanding railroad interests, the Supreme Court ruled that corporations were “persons” and entitled to the same rights granted to people under the Bill of Rights. Since this ruling, America has lost the legal structures that allowed for people to control corporate behavior.

I don’t think Glenn Beck raped and murdered a young girl, but why won’t he deny it?

Arts Technica reports that 2 days after the site glennbeckrapedandmurderedayounggirlin1990.com Beck’s media company “had contacted the domain registrar demanding that the “‘highly defamatory domain name’ glennbeckrapedandmurdered- ayounggirlin1990.com be deleted, that the WhoisGuard privacy protection service be revoked, and that the owner’s contact information be turned over to the lawyers.”

This is a classic case of an effort to “chill” speech you don’t like. Parody and political speech are protected by the First Amendment, but who wants to take on the costs of litigating against a media giant? One of my students asked the other day if there were any way for an individual to get funding to litigate against a large corporation. I explained that there really isn’t. If you’re really, really poor, you might get legal aid, but not likely even if you’re really, really poor to defend against a lawsuit like Beck’s. We have a brilliant legal system, but it’s been entirely distorted by inequalities of wealth and the expense that has become accepted as part of litigation. Someone with little legal merit to their claims or defenses can prevail merely by wearing down and exhausting the resources of their adversary.

I myself wouldn’t begin to conclude from seeing the domain name that there was any real evidence Glenn Beck had raped and murdered a young girl, but one expert in the article thought Beck’s lawsuit had enough merit that it can’t merely be brushed off:

“I don’t think ‘Ha ha it’s a joke’ at the end gets you off,” he says; if the parodic information is defamatory, it’s risky for the defendant in such cases. That’s complicated by the fact that the original domain name made the allegedly defamatory claim against Beck—and of course no one stumbling across the site in a search engine or elsewhere would see any disclaimer. In such cases, the domain name itself is a standalone piece of content; the disclaimer may help regarding the website content, but it won’t necessarily transfer a cone of protection to the domain name as well.

This is what we get when we take seriously allegations like the one that Obama wants to euthanize my mom (would she be so lucky! — sorry, that’s an entirely different and very personal topic).

ADDENDUM: Beck does want to beat Rep. Charles Rangel to death with a shovel, and he wants to kill other people, right?

ADDENDUM 2: This guy Beck may or may not be a rapist and murderer (but why won’t he just prove his innocence?), but he is definitely a first-rate parodist, pointing out the Communist propaganda hidden in New York City. Who knew John D. Rockefeller was really a communist, and that Isaiah’s timeless call to beat swords into plowshares is really an ancient “progressive” plot? He’s hilarious. Everyone does just laugh at this stuff, right?

Do we need to protect Exxon’s right to free speech?

There’s an interesting and largely ignored set of precedents at play in the campaign finance case the Supreme Court heard arguments in yesterday. The focus is on whether Chief Justice Roberts — after having emphasized during his confirmation hearings the importance of precedent and the extraordinary circumstances that would require it to be overturned — will vote to overturn over 100 years of limits on corporate donations to political campaigns on the grounds that limiting corporate contributions to political campaigns is an unconsitutional limitation on free speech. Here’s my bet (which I strongly recommend you don’t take): Roberts will overturn the precedent and vote to overturn the campaign finance restrictions.

But there’s an even older set of precedents that ought to be subject to review: the precedents that conclude that corporations are “persons” just like you and me; accordingly, corporations are entitled to free speech rights, protection against unreasonable searches and seizures, and all the other rights guaranteeed to individuals under the Constitution.

There’s nothing self-evident about concluding that a corporation is entitled to these protections. One reason is what the right wing of the Court identified years ago in concluding that limitations could be made on a union’s power to contribute money to political causes: an individual union member’s views might difffer from the union’s. Just so, an individual stockholder or director’s views might differ from that of the corporation’s.

More importantly, though, the idea of a corporation is a convenient legal “fiction” — really a metaphor — that courts employ because it is, well convenient for purposes of certain legal analysis. But when we confuse the metaphor for the reality we can get into trouble. As Buzzflash pointed out recently, Thom Hartmann in his book Unequal Protection explains:

Prior to 1886, corporations were referred to in U.S. law as “artificial persons.” but in 1886, after a series of cases brought by lawyers representing the expanding railroad interests, the Supreme Court ruled that corporations were “persons” and entitled to the same rights granted to people under the Bill of Rights. Since this ruling, America has lost the legal structures that allowed for people to control corporate behavior.

So think twice before you conclude that the campaign finance case is all about overcoming restrictions on free speech, which is the position argued on the left by the ACLU and on the right by the Wall Street Journal:

Hillary Clinton may end up the accidental heroine in the battle to reassert First Amendment rights over restrictions on political speech. Yesterday, the Supreme Court heard a historic reargument in the case of Citizens United v. Federal Election Commission, and the Justices have a chance to revisit two of their greatest offenses against the Constitution.

The case involves a political documentary made during last year’s Presidential primaries about then-Senator Clinton called “Hillary: The Movie.” It wasn’t what you’d call a glowing portrayal. Funded by a group called Citizens United, the film was intended to be shown on cable TV during the primary season, a profile that got it caught in the net of campaign finance reform laws that control political advertising.

At stake are two major precedents in the campaign-finance canon, Austin v. Michigan Chamber of Commerce (1990) and a portion of McConnell v. FEC (2003). In Austin, the Court ruled the government may ban corporations from engaging in what’s known as “express advocacy” directly from corporate treasury funds, requiring the funds to be channeled through a separate political action committee. In McConnell, the Court built on that decision to uphold most of the Bipartisan Campaign Reform Act, a.k.a.

the 2002 McCain-Feingold law, including a section that banned “electioneering communications.”

. . . The First Amendment was designed specifically to protect speech in just the kind of scenario “Hillary: The Movie” presents—the right to engage in the political process and to challenge and comment on candidates. Citizens United is the ideal opportunity to overturn a major swath of bad law.

No, the First Amendment was not “designed to specifically protect speech” by business organizations — it was intended to protect speech by individuals. It’s an amazing argument from those who would normally argue that we need to stick to the Original Intent of the Framers, but it shows too that Original Intent is merely a means to a political end, not a reasoned position.

Woody Allen settles for $5 million for commercial use of his image.

New York State is unusual in giving people a right to deny the use of their image (or voice or name) for commercial purposes). Under Section 51 of New York’s Civil Rights Law, anyone “whose name, portrait, picture or voice is used within this state for advertising purposes or for the purpose of trade without the written consent first obtained” may sue to enjoin the use and for damages.

Thus, the only real legal issue in Woody Allen’s lawsuit against a clothing company that used an image of him from “Annie Hall” without on billboards without permission was the amount of damages Allen would be able to provehe had suffered. Thus, though Allen’s complaint sought $10 million, he settled today for $5 million. There were, however, other issues that would have come up. As the New York Times reports,  ”a trial that could have dredged up potentially salacious details about him and his wife, Soon-Yi Previn.” Nonethless, the parties continued their dispute in the court of public opinion after the settlement:

“Threats and press leaks by American Apparel designed to smear me did not work, and a scheme to call a long list of witnesses who had absolutely nothing to do with the case was also disallowed by the court,” Mr. Allen said outside the federal courthouse, reading from a statement.

“I suspect this dose of legal reality led to their 11th-hour settlement,” he added.

Mr. Charney [founder and CEO of the defendant], who spoke to reporters afterward, said he did not regret using the image of Mr. Allen dressed as a Hasidic Jew, and that his insurance company had forced him to settle.

“I’m not sorry for expressing myself,” he said. “I wish him the best with his career, and I am looking forward to his next film.”

Mr. Charney seemed to argue that his First Amendment rights to free speech justified his conduct, and he’s right that if he has a constitutional right to do what he did the state statute could not prevent him from doing so. But it seems likely to me the state has a legitimate interest in protecting its citizens against the commercial exploitation of their own identities, and therefore the free speech rights in connection with commercial use of one’s identity are likely  similar to the fair use rights of copyrighted works. Since the image is unmistakeably Mr. Allen’s, since the use is as commercial as they come, and since Allen likely could have proven some financial harm, it seems to me unlikely any First Amendment argument could have helped the defendant in this case.

Wikipedia should know better/Addendum: it does, and the problem is solved, though Wikipedia really didn’t have to be quite so heavy-handed.

Determining whether the use of someone else’s trademark is a non-infringing fair use does not involve an analysis identical to determining whether the use of someone’s copyrighted work is a fair use, but there are significant similarities.  One is that the absence of any exploitation of the commercial value of the intellectual property is a significant reason to find that use of the trademark is not infringing.  Another is that the property interest one has in the intellectual property has to be balanced against the constitutional right to free speech. Thus, owning a trademark no more gives you total control over use of the trademark than owning a copyright gives you total control over the copyrighted work.

The Electronic Frontier Foundation therefore is disturbed that Wikipedia, whom the EFF has represented, is trying to stop a group of artists from using the name “wikipediaart.org” as the domain for a site that documents  a Wikepedia article they had established last year.  The article “was intended to comment on the nature of art and Wikipedia. But Wikipedia editors did not take kindly to the project, and it was shut down within fifteen hours for being insufficiently ‘encyclopaedic.’”

But since the site is non-commercial and is a critical commentary on Wikipedia, Wikipedia has no right to shut it down.  The artists are not attracting paying customers who stumble upon the site because they are looking for Wikipedia.  And you can’t shut someone down just because they are criticizing you.  As the EFF cogently sums up the issues:

Wikipedia should know better. There is no trademark or cybersquatting issue here. First, the site is entirely noncommercial, which puts it beyond the reach of U.S. trademark law. . . . Moreover, even if U.S. trademark laws somehow reached this noncommercial activity, the artists’ use of the mark is an obvious fair use. Wikipedia Art uses the “Wikipedia” mark to refer to the project: a critical comment on Wikipedia and creativity. The disputed site describes the project, provides links to media coverage of the project, and so on. It does not use any more of the Wikipedia mark than need be; for example, it doesn’t even use the Wikipedia logo. Simply put, the site does not purport to be, nor does it look anything like, Wikipedia and the artists have done nothing to suggest Wikipedia endorses their work. Finally, the creators are engaging in precisely the kind of critical speech sheltered by the First Amendment.

ADDENDUM: asdfghjk in the comments states that the “EFF’s description of events is somewhat incomplete at best,” and points to a post by Mike Godwin, General Counsel of Wikimedia Foundation, that explains that Wikipedia’s only concern was that wikipediaart.org would be mistaken by visitors as a site affiliated with Wikipedia and that, once the creators of wikipediaart.org have posted the prominent disclaimer now visible on the site, Wikipedia considered the matter resolved, and amicably so. I’m glad to hear it.  It’s dispute resolution, folks, and when people get upset and have disputes all you need to do is resolve them.  It’s just not so easy all the time.  Here’s to wikipediaart.org for responding with the disclaimer and to Wikipedia for backing off once its legitimate concern had been addressed. And thank you, asdfghjk, whoever you are and wherever you may be. But I’ll take exception to one point you made — I do not believe the EFF was “played” by a bunch of performance artists.  Even without the disclaimer, their non-affiliation with Wikipedia seemed clear.  And it does not seem far-fetched for EFF (or me) to have mistaken the meaning of communications, in which, Mr. Godwin now claims,  “no litigation [against wikepediaart.org] was threatened or commenced.”  On April 9, Doug Isenberg, a lawyer for Wikimedia, wrote Wikipedia Art a letter that sure sounds like it threatened litigation:

Wikimedia appreciates your offer to “explore an amicable resolution to this matter.” Accordingly, I think it would be helpful to draw your attention to a recent domain name dispute between Wikimedia and the registrant of the domain name <visualwikipedia.com>. The registrant of that domain name was using it in connection with a website that described itself as “a visual, intuitive, and interactive web interface to encyclopedic knowledge/information.” The registrant of that domain name refused to cooperate with Wikimedia, after which Wikimedia filed a complaint pursuant to the Uniform Domain Name Dispute Resolution Policy (“UDRP”), resulting in a published decision ordering the domain name transferred to Wikimedia. See WIPO Case No. D2009-0139, available at http://www.wipo.int/amc/en/domains/decisions/html/2009/d2009-0139.html. . .

In light of the above, Wikimedia suggests that Mr. Kildall select a domain name that does not include any of Wikimedia’s trademarks and that Mr. Kildall transfer the <wikipediaart.org> domain name to Wikimedia. Doing so would allow Mr. Kildall to continue to freely express himself without raising the same concerns that Wikimedia has asked me to investigate. If Mr. Kildall is willing to do so, please let me know by April 16, 2009.

But all is well that ends well.  The disclaimer removes any possible claim of visitors to wikipediaart.org would believe the site is affiliated with Wikipedia, and Wikipedia Art, despite Mr. Isenberg’s “suggestion,” keeps its domain name. Perhaps next time Mr. Godwin should not delegate to outside lawyers the writing of letters he does not intend to contain threats of litigation.

Free Speech, Copyright, and Fair Use: We can express ourselves any way we want, even in ways that “steal” your own forms of expression, unless there’s a good reason to stop us.

Calling the right a creator has in his or her work intellectual property is misleading. It conveys the imipression thatthe work is property in the same way a television of a piece of land is property. You can fence in land. You can stop anyone from using your television. But intellectual property is not personal property the way things are and it is not real property the way land and the buildings attached to land are. Artists often think otherwise. In an interview on myartspace.com, for example, Steven Bogart, asked about his position on copyright, says simply, “Artists have a right to control their images and the right to be credited. ”

He might wish it so, but it isn’t so. Plainly, the lawsuits that result in findings that the use of copyrighted works are non-infringing fair use of copyrighted works all involve uses over which the artists have no control. If they had control, there’d be no lawsuits. Nor does fair use require crediting the artist whose work is used without consent.

There are many, many reasons underlying the fact U.S. law does not treat the product of creative expression like it treats personal or real property. Among them may be some comprehension that creativity is not the individual act of divine inspiration that Romantic poets believed and that in fact resulted in the rise of copyright as we know it.

But another, and very American reason U.S. law does not treat the products of creative expression the same ways it treats land holdings or the products of manufacturing is that the use of creative expression, authorized or not, is itself expression, and the freedom of expression is at the very core of what it means to be American. The fair use doctrine, which allows the use of copyrighted materials in certain circumstances without the consent of the owner of the copyright, is based squarely on the First Amendement’s guarantee of the freedom of expression.

Accordingly, in determining whether the unauthorized use of copyrighted work is non-infringing fair use, courts look at, among other things, whether the challenged use has a negative impact on the commercial market for the copyrighted work. While the commercial damage to the copyrighted work is a significant factor, Christina Bohannon, a law professor at the University of Iowa, believes that the importance of the right to free speech should require that it should be required in order for a court to find infringment. As she explains in the abstract to her paper, “Copyright Harm and First Amendment,” a showing of harm is required in every single other constitutional restriction on free speech and there is no justification for treating copyright differently:

Copyright law is a glaring and unjustified exception to the general rule that the government may not prohibit speech without a showing that the speech causes harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right of publicity laws, require demonstrable evidence that the defendant’s speech causes actual harm, copyright law does not make harm a requirement of infringement. Although copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, harm is not always required and is so poorly defined that the concept has become circular. Moreover, the defendant ordinarily bears the burden of proof to show the absence of harm. As a result, courts often find liability for infringement (and therefore burden speech) where harm is purely speculative.

Potential explanations for copyright’s anomalous treatment are unpersuasive. Copying involves speech as well as conduct, and the fact that copyrights are in some sense property does not come close to justifying its aberrant treatment. Moreover, copyright’s role in encouraging creative expression does not obviate First Amendment concerns. Rather, it provides a way to reconcile copyright law and free speech. Drawing substantially from First Amendment cases holding that speech restrictions must be justified by a governmental interest, this article argues that the First Amendment requires real proof of harm to the copyright holder’s incentives in order to impose liability for copyright infringement. It also explores the types of harm that might arise in copyright infringement cases and considers whether the First Amendment permits recognition of these types of harm. The article concludes that although demonstrable market harm is cognizable under First Amendment principles, recognition of harm to the reputation of copyrighted works, the author’s right not to speak or associate, or the copyright holder’s privacy interests is generally not compatible with the values of free speech.

Of course, I could say in response to Professor Bohannon the same thing I say to those who say artists do have the right to control their work and to attribution for any use of their work. You may wish it were so, and there may even be reasons to believe your position merits my sympathy, but that assertion isn’t the law and doesn’t make it the law.

Shepard Fairey, lightning rod

I’ve pointed out both that I believe strongly that Shepard Fairey’s use of an AP photograph to create his Obama Hope poster does not infringe the pohotograph’s copyright and that Fairey has been the target of frequent criticism in the art community regarding his “originality” and regarding his apparent hypocrisy in asserting infringement claims against artists who had appropriated his images.

It has come to my attention that some criticize the Fair Use Project’s decision to take up Fairey’s cause in the case of the Obama Hope poster and think Fairey should be taken down because of his apparent hypocrisy.

As a lawyer, I strongly disagree with this position.  If, as I zealously believe, the Obama Hope poster is fair use, it would be self-defeating to those of us who support the explicit application of the fair use doctrine to transformative appropriation art and various other methods of “remixing” pre-existing works, regardless of our view of Fairey himself,  if we failed to support Fairey’s position in connection with the Obama Hope poster.

I cannot help but recall last year’s lawsuit brought by Yoko Ono, Sean Ono, and Julian Lennon seeking to require the makers of the documentary “Expelled” from using a 15 second excerpt of John Lennon’s song “Imagine” in their documentary.  As I wrote at the time, I believed the lawsuit was misbegotten and that the film’s use of the excerpt constituted fair use despite my love of John Lennon and my contempt for the film, which purports that “theorists” of “Intelligent Design” have unjustifiably been expelled from the conversation regarding evolution and the development of life.  The court hearing the case agreed with my position and dismissed the case. Not coincidentally, the Fair Use Project represented the producers of “Expelled” in that case.

Fair use is fair use, and if we believe in it we should support it wherever it exists, even if we despise the people asserting fair use.  I supported the right of Nazis to march in Skokie, Illinois, a community full of Holocaust survivors, because I believe that the right to demonstrate in public is protected by the First Amendment regardless of how vile the message being conveyed may be.  The Supreme Court agreed.

That doesn’t mean we can’t criticize Fairey when he seems to want his cake and eat it too.  (Though it may be that Fairey’s thoughts have evolved on these issues — while he sent a cease-and-desist letter to Baxter Orr for Orr’s appropriation of one of Fairey’s images, Fairey never followed that letter up with any other action despite Orr’s continued use of the image.)

You may not like Fairey.  But that does not mean we shouldn’t support his position when he happens to be right.  To fail to do so would be to cut off our noses to spite our faces.

Defamantion and Anonymity

From the Washington Post:

In a First Amendment case with implications for everything from neighborhood e-mail lists to national newspapers, an Eastern Shore businessman argued to Maryland’s highest court yesterday that the host of an online forum should be forced to reveal the identities of people who posted allegedly defamatory comments. . .

The businessman, Zebulon J. Brodie, contends that he was defamed by comments about his shop, a Dunkin’ Donuts in Centreville, posted on NewsZap.com. The shop was described as one “of the most dirty and unsanitary-looking food-service places I have seen.” . . .

For advocates of strong protections for anonymous speech and the Internet, online chat rooms are the 21st-century successors to the town square and the political pamphlet.

“There’s a long tradition in U.S. history of at least anonymous political speech, and certainly when you contemplate the Internet and the new opportunities it offers, this is the way a lot of speech happens,” Sam Bayard, assistant director of the Citizens Media Law Project at Harvard Law School, said in an interview.

At the same time, however, many argue that the First Amendment should not become a shield for those responsible for defamatory remarks. The reach of the Internet has allowed anonymous speech to potentially influence more people than ever, compounding the harm of a false claim.

This may be a far tougher and more important issue than it first appears.  We’ve lost touch with a lot of the “public square”-type of feeling that once existed.  Our newspapers are losing all capacity to cover the deeds of the corporate sphere.  The editor of the Manchester Guardian writes in the New York Review of Books of the Guardian’s struggles against one of Europe’s most powerful corporations over claims of defamation in a  story worthy of detailed attention:

News organizations in the Western world, struggling with declining audiences and revenue, are shedding journalists, closing down foreign operations, and cutting costs. But they are also increasingly inhibited by efforts-of government officials and of private corporations-to prevent them from protecting sources or from carrying out difficult investigations. Many minds are rightly focused on the regulatory, economic, technological, and legal issues that news organizations committed to serious journalism should be addressing.

We understand already that anonymous comments, because of their anonymity, are unreliable.  Yet we also know that people feel comfortable expressing themselves online particularly because of their ability to remain anonymous.  If we allow too much reach to people suing for being defamed, we will inevitably cause people to pull back from making even anonymous comments on any controversial matter involving a powerful person or company.  There’s simply too much risk and too much cost in being alleged to have defamed someone to bother.

So, should we allow someone to defame a particular Dunkin’ Donuts anonymously online, or should we allow a Dunkin’ Donuts to sue someone who might be correct in what they say but unable to defend the truth of their position?  That seems to me the choice: to either allow unjustified and unreliable speech or to shut down reliable and damaging speech.