Just Because Some People Are Jerks Online, It Doesn't Mean You Need To Repeal Safe Harbors For ISPs

from the thinking-logically dept

Mon, Jan 10th 2011 10:50am — Mike Masnick

The NY Times recently had an odd review of a new book about anonymity online. The book, called The Offensive Internet, is a collection of essays from various legal scholars, apparently taking a look at the fact that (gasp!) some people are just nasty online. The review, by Stanley Fish, makes some claims that don't make much sense, either logically or legally. If his summaries of the book accurately reflect what was written, then it suggests that the professors might not really have a firm grasp on what they're talking about. For example, Fish notes that multiple authors in the book seem willing to toss out Section 230's safe harbors for third party service providers, because some anonymous commenters might be mean:

An unconstrained marketplace of ideas is often said to facilitate informed decision-making by providing all the information, even erroneous information, that is out there. But how, asks Brian Leiter in a powerful essay, is the process of deliberation helped by the anonymous poster who reports falsely �that Jane Doe has herpes� and announces �that he would like to sodomize her?� The Internet and the real world, Leiter concludes, �would both be better places� if Internet providers were held accountable for the scurrilous and harmful material they disseminate.

Later, Fish quotes others, with similar arguments:

Saul Levmore (Nussbaum�s co-editor) suggests that immunity might be conditioned on the willingness of a provider either to take down a message after notice of its falsity or defamatory character has been given, or �to enforce non-anonymity� and thus open the way for an injured party to seek redress. The law, writes Anupam Chander, �should allow the individual to find information to lead her to the person who committed the privacy invasion.� As it is now, with an expansive reading of Section 230, �the law no longer puts any obstacles in the way of the Sociopath� who, traveling on the Internet, can go anywhere and spray venom that lasts forever. (Leiter)

Except, as Paul Levy points out in great detail in a response to Fish's column, if Fish accurately reported what these law professors wrote, then those law professors don't actually know the law.

They appear to be confusing anonymity with safe harbors for service providers. But there's nothing at all in Section 230 that forbids or prevents a person who has been wronged -- say via defamation -- from going to court and getting a service provider to identify an anonymous commenter. All the safe harbor does is prevent the service provider from being liable for the user's speech. But it does nothing to protect their anonymity. Arguing otherwise is simply wrong. As Levy notes:

Under current law, if actionable expression is communicated online, the victim of the statutory, tort or contract violation can sue the author for that expression, but can no more sue the host of the web site, or the provider of the email service, than he could sue the postal service for carrying a defamatory book or newspaper, or sue a library for lending such a book out. Moreover, even if the name of the author is not provided with the expression, generally speaking the host of a web site that contains offending content (or an email provider) maintains at least for a period of time the data that is needed to identify the author.

That information can be subpoenaed from the host. And such a subpoena can be enforced by anybody who has a substantial claim of defamation or other actionable content. That is, they will succeed in the subpoena proceeding so long as they can identify the allegedly defamatory words about them, the words are actionable statements of facts and not just opinions, they have evidence of falsity and of damage, and there is no other reason to withhold identification, such as a real risk of extra-judicial retaliation.

In other words, the attack on Section 230 (if Fish is to be believed, mainly by law professor Brian Leiter) is woefully misplaced. He seems to be blaming safe harbors for third parties for the fact that some anonymous commenters can be jackasses. But the two things are unrelated.

Furthermore, I've noted in the past how misguided attacks on anonymity are. We've been running Techdirt for well over a dozen years and have always allowed anonymous comments. On the whole, we probably have just as many smart anonymous comments as we do smart "named" comments -- and the same is true of the annoying or abusive comments. To suggest that anonymity alone automatically leads to worse comments is a myth. It's something that some people want to believe, but there is little evidence to support it.

As I've said, we prefer that people identify themselves, because we like it, but we try to do that by offering positive reasons for people to identify themselves (if you're registered users there are various perks and such), but if people want to remain anonymous, that's fine too. But, the thing is, when someone does decide to comment anonymously, they are signaling something to the world, and part of that signal is often "this might not be as credible, so you might want to double check." So when the essays in this book complain about people making speech online anonymously, what they appear to be ignoring is the fact that such anonymous speech is already handicapped, in that it's a lot less believable on its face. For some reason, too often people seem to think that if someone says something, everyone automatically believes it. And that seems to be driving much of the conversation here, but it seems reasonable to go back and question that assumption.

In the end, there are lots of important benefits to anonymous speech. Yes, some people abuse it. But that's no reason to automatically throw out all the benefits of anonymous speech.

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Filed Under: anonymity, free speech, jerks, section 230

57 Comments

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:Lobo Santo (profile), 10 Jan 2011 @ 10:59am

Some people...
Some people are nasty in person, too.

Big furry deal.

It would be an affront to liberty and free speech to take away a person's right to be an asshole IRL, how is this in any way different online?
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Anonymous Coward, 10 Jan 2011 @ 11:01am

We've been running Techdirt for well over a dozen years and have always allowed anonymous comments.

yet you are never shy to out anonymous posters, such as the additional of the snowflakes.

Section 230 (like DMCA) has been twisted in ways that it was never intended to do. DMCA is a license to steal (just remove the stuff when you get caught), and Section 230 is a license to libel / slander people like mad, knowing that the forum and service providers will hide out and in turn hide your sorry ass.

The result of Section 230 is that it has extended past the service provider, and created a shield around the sorts of people who need to have a day in court. It was never intended to shield past the service providers.

The current situation, much like the issues of DMCA, are not tolerable in the long term. As more and more people pop in to profit from these "exceptional" situations, it becomes clear that they each need narrower definitions and better controls (and obligations).
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Hephaestus (profile), 10 Jan 2011 @ 11:05am

Re:
Way to funny commenting from behind "Anonymous Coward" about removing section 230.

Irony Much?
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Anonymous Coward, 10 Jan 2011 @ 11:07am

Re: Re:
I know I am about as anonymous here as I would be standing a street corner with a name sign around my neck. TD has no respect for their user's anonymous status, that was established a very long time ago.
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Anonymous Coward, 10 Jan 2011 @ 11:09am

Interwebs & real-life culture are intertwined.
Considering that internet and real-life culture are for the most part, very intertwined, this question should be approached very carefully.

It could be likely that this would be fodder for a culture change where all communication online becomes passive-aggressive in nature.

What's curious is *HOW* these stupid laws would trickle don and change real-life, in-person communication and culture standards. We're already seeing a group of hipster folks wearing fedoras at area malls and the local thrift store.

So in 20 years will everybody be skin-deep and protective of giving meaningful feedback? It's important to understand cultural implications from a societal perspective before making legalistic changes.

Fortunately, Fish isn't a Sociologist so we can very quickly dismiss his drivel.
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Chronno S. Trigger (profile), 10 Jan 2011 @ 11:11am

Re:
"yet you are never shy to out anonymous posters, such as the additional of the snowflakes."

I like them, I can tell the difference between Anonymous Cowards. Remember, just because I don't post as "Anonymous Coward" doesn't mean I'm not posting anonymously. And just because I see a little snowflake doesn't mean you're not still as anonymous as you were before them.

"DMCA is a license to steal" "Section 230 is a license to libel"

You need to learn how the law works. Section 230 is just so people like Techdirt can't get into trouble for something you say. If you say something that bad, the offended party can get a court order and Techdirt will be required to turn over your personal information. Techdirt themselves cannot be sued, however.

The DMCA has been used to "steal" things. It allows big media to force perfectly legal sites and items offline.
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Chronno S. Trigger, 10 Jan 2011 @ 11:12am

Re: Re: Re:
Here's my snowflake, come get me. Let's see how un-anonymous we truly are.
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Anonymous, 10 Jan 2011 @ 11:15am

Re: Re: Re:
Agreed. They're slimeballs.
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MrWilson, 10 Jan 2011 @ 11:17am

Re:
"yet you are never shy to out anonymous posters, such as the additional of the snowflakes."

Outing would imply they actually identify the anonymous posters. The snowflakes don't do anything other than offer a tool for identifying posts made by the same still-anonymous poster. It's not like the snowflakes are QR coded with your name or ip address.
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Anonymous, 10 Jan 2011 @ 11:19am

Re: Re:
The DMCA is perverted by websites so they can make money on the backs of illegal content. Fail.

It is an outdated joke of a law that desperately needs to be updated, as it has obviously failed it's original purpose.
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Chronno S. Trigger (profile), 10 Jan 2011 @ 11:23am

Re: Re: Re:
You're referencing the Pirate Bay by chance? One, that's user generated content the DMCA would protect them without any stretching, and two they aren't in the US, they can't abuse the DMCA since it doesn't apply to them.
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Anonymous Coward, 10 Jan 2011 @ 11:26am

Re: Re: Re: Re:
anonymous means anonymous period. Adding anything to identify a poster makes them less than anonymous.
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Anonymous Coward, 10 Jan 2011 @ 11:29am

Re: Re: Re: Re: Re:
"Anonymity is derived from the Greek word ἀνωνυμία, anonymia, meaning "without a name" or "namelessness". In colloquial use, anonymous typically refers to a person, and often means that the personal identity, or personally identifiable information of that person is not known."

Is your name "Snowflake" or something?
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Anonymous Coward, 10 Jan 2011 @ 11:29am

Is Stanley Fish a flagbearer for Political Correctness?
Hmm. It appears Stanley Fish published a book with a very curious title-- "There's No Such Thing As Free Speech... And It's A Good Thing Too"

The book appears to make a case for political correctness, using concepts from 14th and 16th century English Scholars such as John Skelton and John Milton.

Admittedly, I haven't read his works, but from what I could gather, he seems to desire returning to 16th century speech standards.

For further reading, I've included a link to his wikipedia Article: Citation
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Hephaestus (profile), 10 Jan 2011 @ 11:31am

Re: Re: Re: Re: Re:
Actually I like the idea of the snow flake. It allows you to follow a conversation in a flock of people wearing Guy Fawkes masks.
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Anonymous Coward, 10 Jan 2011 @ 11:31am

Re:
-- Worried about snowflakes??
In case you hadn't noticed, the snowflake isn't even the same when a single person comments from the same computer on two different stories. It's even different in the same article when it is read on different days. The snowflake is only the same if you are in the same article on the same day. It just helps others understand a particular individual's train of thought.
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Chronno S. Trigger (profile), 10 Jan 2011 @ 11:32am

Re: Re: Re: Re: Re:
One, you're still anonymous. I don't care what your definition of it is, but you're still anonymous by the real definition.

Two, under your definition if you speak then you're less then anonymous. You give out information about yourself every time you post anything. This is why we could tell some ACs from others even without the snowflakes.

You stated that posting here was like standing on a street corner with a name tag. You are wrong.
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Hephaestus (profile), 10 Jan 2011 @ 11:32am

Re: Re: Re: Re: Re: Re:
"Is your name "Snowflake" or something?"

Naw its what his boyfriend calls him when he cross dresses ;)
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Free Capitalist (profile), 10 Jan 2011 @ 11:33am

Re: Re: Re: Re: Re:
So what is the issue you're having with section 230 again? Is it that anonymous posters can get away with spouting patently false stuff like everyone else, or is it because you haven't figured out how to maintain anonymity and get called out every time you post your stuff here. 'Cause that would just be jealous.
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freak (profile), 10 Jan 2011 @ 11:36am

Re: Re: Re: Re: Re:
. . . I'm surprised at your idiocy.

1)Adding snowflakes doesn't do much to take away your anonymity. Just use a proxy.

2)Snowflakes are a valid addition to the site in that they help to encourage different sub-threads of speaking and argument in the same comment thread. Identifying which person you are speaking to in the context of the argument can matter.
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Hephaestus (profile), 10 Jan 2011 @ 11:36am

Re: Re: Re: Re: Re: Re: Re:
Oh and that was done on purpose, to be a jerk online, just because I can :)
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chedderslam (profile), 10 Jan 2011 @ 11:37am

Re: Re: Re: Re: Re:
How does some sort of visual aid detract from your anonymity?
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Anonymous Coward, 10 Jan 2011 @ 11:37am

Re: Re:
The problem with section 230 is that it creates a gap where often nobody can be held liable for comments or actions, because "innocent hosts" are turning around and either not collecting user data, not collection access data, not collecting anything that can connect a post to a user / email / IP address, or worse, they are actively blocking legal action to obtain that information.

Effectively, it creates a one way street, where people can throw all sorts of wild claims around online knowing that they cannot be found, and that the service hosting their comments / content will block any attempt to find out who they are.

In a society of free speech with responsiblity, this is a horrible disconnect. It was not the intention of the law to permit this sort of shield to extend past the service provider.
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Anonymous Coward, 10 Jan 2011 @ 11:40am

Re: Re: Re: Re:
Look at the slimeballs! Touch the slimeballs! Be the slimeballs!
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Anonymous Coward, 10 Jan 2011 @ 11:42am

Re: Re: Re:
Since when does speech need to be responsible?
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Randy (profile), 10 Jan 2011 @ 11:53am

Re: Re: Re:
"Effectively, it creates a one way street, where people can throw all sorts of wild claims around online knowing that they cannot be found, and that the service hosting their comments / content will block any attempt to find out who they are."

All sorts of wild claims like anything free is substandard, you can't make any money offering things for free, or that 'stealing' content is the same as stealing a car?
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Joe Anonymous, 10 Jan 2011 @ 11:54am

Heck, actually I think the snowflake is more like a box of masks, and you have to wear one for the length of that specific conversation (post). New convo, new mask.

I mean, it just lets us know who's responsible for certain comments. Maybe you are less anonymous, but not by much in my opinion.
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Anonymous Coward, 10 Jan 2011 @ 11:59am

Re: Re: Re: Re:
Good question. It seems the only "free speech" these days is classified behind a cloak of secrecy. It could be called SECRET, TOP SECRET, or NOFORN and such. By saying certain speech is done "in the interest of national security", speech is given the ability to be irresponsible, but with proper analysis, one can drive out the intent and goals of such speech.

So if you're going to be irresponsible with speech, make sure it has a fancy classification!
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Anonymous Coward, 10 Jan 2011 @ 11:59am

Re: Re: Re:
Ask Mike if he knows who made this post here.

TOR
I2P
Freenet

Just don't ever use JAP as it had a backdoor mandated by the German Government in 2003.

Net anonymity service back-doored (2003)
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Dark Helmet (profile), 10 Jan 2011 @ 11:59am

Re: Re: Re: Re: Re: Re: Re: Re:
Either way, it was extremely funny. I was going to ask him if he was a horse named snowflake and if I could ride him, but somehow I think that'd bring us right back to your comment....
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Anonymous Coward, 10 Jan 2011 @ 12:10pm

Re:
So you want everyone to be responsible even when they are unaware of problems?

If I fallow you I probably will get something to complain about because you know there are tens of thousands of laws some of them so old that they don't make sense today but are still in the books. You think your business is immune to the laws without protections and safeguards against accidental things?
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DH's Love Child (profile), 10 Jan 2011 @ 12:11pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
I'm not so sure I would trust a horse named snowflake to carry much more than a feather...
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Hephaestus (profile), 10 Jan 2011 @ 12:27pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Only if it was a horse named snowflake wearing a dress, a see through bra, and wearing hot pink lipstick :)
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DH's Love Child (profile), 10 Jan 2011 @ 12:28pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I think that would lead to activities that are illegal in a lot of states. ;-)
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The Mighty Buzzard (profile), 10 Jan 2011 @ 12:37pm

Re:
Yes, Pink Snowflake is terribly identifying. Why, we even know the answer to the eternal boxers/briefs/commando question as well as your mother's dog's name. Oh, wait, all we know is that you have the same IP address as the other Pink Snowflake comments. Until you change your IP address.

Freaking trolls.
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Hephaestus (profile), 10 Jan 2011 @ 12:44pm

Re: Re: Re: Re:
"Since when does speech need to be responsible?"

That line is going to bring out the fire in a theater crowd...
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Anonymous Coward, 10 Jan 2011 @ 1:07pm

This is absolutely ridiculous! How can a "legitimate" reporter/columnist write up an article about another article that was written and not even ACTUALLY READ the book that it was about. "If his summaries of the book accurately reflect what was written" maybe you should fucking read the thing you are writing about!
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Hephaestus (profile), 10 Jan 2011 @ 1:14pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Just wondering if that were to happen in vegas would it actually stay in vegas ... or be all over youtube the very next day?
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tracker1 (profile), 10 Jan 2011 @ 1:20pm

Anonymous comments
You know, I could send an *anonymous* letter via the postal service to a few of these law professors, without a signature or valid return address and it will get to them... they will be equally offended with no recourse. You don't have a right to not be offended, but you can kick a jackass out of your house/bar/restaurant/business/life.
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Bort Sarsgaard, 10 Jan 2011 @ 1:22pm

Libelous content
In the United States, because of Safe Harbor provisions there is no way to compel a third party to remove content that has been found by a court to be libelous.
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Doesn't Matter due to stupid content, 10 Jan 2011 @ 1:30pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I just wanted another Re: in the subject.
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theangryintern (profile), 10 Jan 2011 @ 1:31pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
No, what happens in Vegas can be treated with once daily Valtrex...
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Chronno S. Trigger (profile), 10 Jan 2011 @ 1:33pm

Re: Libelous content
In this response I must make two assumptions. One, this third party is the host of the libelous content, and two this third party is based in the US. If ether of those two assumptions are wrong, then your argument and mine are invalid.

In the US Safe Harbors protects the third party from being sued. This does not protect them from a court order to remove the content in question. If the third party refuses to remove the content, then they are liable for the comment as well. In this hypothetical situation, the originating party doesn't even need to be found to force the third party to remove the content.
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Anonymous Coward, 10 Jan 2011 @ 1:38pm

I once saw an attorney general assistant get nasty online, she cussed at everyone and was clearly trolling the forum and she also brought her 10 year son to help, what happened next was just funny, she had a profile and had a photo of a birthday party where she was holding a giant chocolate penis, someone noticed and posted that. Boy was she pissed about it. Suddenly all those snark comments turned to threats which was of course promptly ignored by the internet dwellers.
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Anonymous Coward, 10 Jan 2011 @ 1:50pm

Re: Re: Re: Re: Re:
It's only irresponsible if there is no fire.
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Anonymous Coward, 10 Jan 2011 @ 2:44pm

Re: Libelous content
Woot! companies now have the power to ignore court orders?
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Anonymous Coward, 10 Jan 2011 @ 4:03pm

Re:
maybe you should fucking read the thing you are writing about
I'm just curious AC, how much of Stanley Fish's work have you read?
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Anonymous Coward, 10 Jan 2011 @ 4:03pm

For a long time now people have had the ability to anonymously assert "Jane Doe has herpes"
The only difference is that, until now, one had to print a bunch of flyers and toss them around town.
I suppose a big difference here is that such action was more expensive. If that is the case, then a person saying internet anonymity is different and thus bad is really just saying
"people with more resources deserve anonymity, but poor people don�t"
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Mike Masnick (profile), 10 Jan 2011 @ 4:20pm

Re:
This is absolutely ridiculous! How can a "legitimate" reporter/columnist write up an article about another article that was written and not even ACTUALLY READ the book that it was about.

My points were about the Fish article. Which I did read.

And, no, it's not ridiculous.

maybe you should fucking read

I will take that under advisement.
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G Thompson (profile), 10 Jan 2011 @ 5:42pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
I'm not sure if I should be scared or what with your use of the phrase 'a lot of states' instead of 'all states'

:)
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techflaws.org (profile), 10 Jan 2011 @ 11:13pm

Re: Re: Re:
So what is written on your name tag?

Anonymous sucker #1?
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techflaws.org (profile), 10 Jan 2011 @ 11:14pm

Re:
yet you are never shy to out anonymous posters, such as the additional of the snowflakes.

The funny thing is: snowflake or not people will always recognize you by your tortured logic an bullshit comments. So no need to actually kow your name, is there?
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Anonymous Coward, 11 Jan 2011 @ 5:51am

But, the thing is, when someone does decide to comment anonymously, they are signaling something to the world, and part of that signal is often "this might not be as credible, so you might want to double check."

This is a good reason to post anonymously. I want people to double check what I write.
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ltlw0lf (profile), 11 Jan 2011 @ 7:02am

Re: Re: Re: Re: Re: Re:
Snowflakes are a valid addition to the site in that they help to encourage different sub-threads of speaking and argument in the same comment thread.

I like the snowflakes for two reasons...1.) It keeps the thoughts separate in my brain (because after a while I cannot figure out who is talking.) I'll read one comment from Anonymous Coward that doesn't jive with another, and I get confused because the same person is saying two completely different things, and 2.) It cuts down on the sockpuppetry. I've gone back to discussions we've had here "pre-snowflake" and have found on quite a few occasions that comments I thought were made by two separate people turned out to be comments by the same person who was just very, very good at trolling.
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Almost Anonymous (profile), 11 Jan 2011 @ 11:00am

Re:
Is that you Stanley?
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RyanRadia (profile), 11 Jan 2011 @ 2:03pm

Re: Re: Libelous content
You are mistaken. Courts have repeatedly held that under Section 230, online intermediaries (third parties) are not liable for defamatory or libelous user content even if they refuse to remove the material upon request.

See http://www.digitalmedialawyerblog.com/2010/01/blockowicz_v_williams_online_p.html and http://blog.ericgoldman.org/archives/2009/11/a_new_way_to_by.htm
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Anonymous Coward, 11 Jan 2011 @ 6:55pm

I don't think that's the stance Fish is taking
I've been following Fish's writings for a few months now, and I'll admit I was a little surprised to see one with this title in my RSS reader. But then I read it.

Fish admittedly spends most of the post talking about what the writers in The Offensive Internet wrote, leaving his opinions mostly out of it until the last couple paragraphs. He tends to try to paint a good picture of what he's talking about before stating his opinion, which can be a little misleading (at least to me). I did notice that Mike hasn't actually disagreed with anything Fish himself said, and this is rightly so.

Fish is actually agreeing with what Mike says here, though talking more on the side of free speech rather than anonymity. He's taken aback by how these law professors who "are by and large strong free-speech advocates" are willing to basically say things like "your speech is not as good as my speech, and therefore it shouldn't be protected."

Admittedly I haven't yet read Fish's book, There�s No Such Thing as Free Speech and It�s a Good Thing, Too, but I'm positive that it contains far more nuanced, reasonable arguments than its title implies, just like his Opinionator posts always do.
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