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Fighting Gossip with Values

Taking a stance against anonymous online attacks
University Business, Jan 2010

The stubborn persistence of internet websites pandering to campus gossip, encouraging students to post salacious anonymous attacks on classmates, faculty, and staff, encourages a culture of rumor that challenges the essential values and identities of American universities.

The first of these sites, "JuicyCampus," shut down last year, amid a maelstrom of protest from student victims of vicious online attacks and threats of lawsuits. Like mutant viruses immune to all known vaccines, however, new strains of campus gossip sites are emerging, such as "Campus Gossip," and "College ACB" (College Anonymous Confession Board) that promise the best in give-it-all-you've-got-let-it-rip-the-dirtier-the-better anonymous messages naming by name fellow members of campus communities (usually students), describing in graphic detail all aspects of their lives, with special emphasis on their perceived sexual proclivities and other sundry character flaws.

Many of us who learn, teach, and toil on campus are deeply disturbed by these sites, but uncertain about our options. Freedom of speech and academic freedom are central defining values of the university, and because this speech takes place on sites not sponsored by the university, as part of the vast internet ether that now comprises the great global digital forum, one tempting impulse is to just let it go. When our counseling lawyers caution that a federal law (Section 230 of the Communications Decency Act) broadly immunizes internet sites from liability for user-generated content, and that free speech principles protect the right of citizens to speak anonymously, we may feel an additional nudge toward a slouching resignation that this may be very bad stuff but there's nothing we can do about it.

The American constitutional tradition is steeped in respect for "ordered liberty," a deliberate fusion of two concepts, married in creative tension.

Yet, we are also pulled in other angels. The American constitutional tradition is steeped in respect for "ordered liberty," a deliberate fusion of two concepts, married in creative tension. American universities partake of a similar tradition. The real world of the university is what A. Bartlett Giamatti, former president of Yale (and then Major League baseball commissioner) described as "a free and ordered space." American universities are at once marketplaces and morally ordered spaces. The modern university is in part a cauldron of fierce competition - for admission, financial aid, tenure and promotion, athletic championships, and prodigious endowments. We often think of the campus as a no-holds-barred "super marketplace" of ideas, in which only the strongest and fittest survive.

Yet simultaneously, the modern campus is also an orderly and moral space - a community of scholars and students organized around such values as respect for human dignity, political, cultural and religious pluralism, collegial civility, and rational discourse. These values should empower us to ostracize certain extremes of expression that are tolerated in the general marketplace, but not tolerable in an enterprise that embraces both "academic freedom" and "academic standards." While those of us devoted to higher education may thus borrow from the "marketplace of ideas" metaphor that has so dominated American thinking about freedom of speech, in adapting that metaphor to campus communities we may choose to place as much emphasis on the notion of ideas as the notion of marketplace. Expression communicating only vulgarity, hatred, and personal attack, expression that is nothing more than salacious trafficking in the destructive culture of rumors, is against the very idea of a university community.

Our reverence for academic freedom and our deep commitment to freedom of speech lead us, appropriately, to grant substantial "breathing space" for the caustic personal attacks that are sometimes incident to robust public discourse. Yet it is worth remembering that human dignity and protection of individual reputation and privacy are also vital to any conception of ordered liberty in a decent society. The dirty politics of defamation and smear have been tools of tyrants and vigilantes for centuries, from the Salem witch trials to the communist witchhunts by Sen. Joe McCarthy.

A lot of what appears on campus gossip sites is simply trivial and juvenile, and truly not worth our worry. But some of it is horribly destructive, causing searing pain to its victims, and corroding the quality of our campus life. We are not duty-bound by our respect for freedom of speech to give these crude attacks a free pass. Campus communities will differ in their specific strategies in fighting these sites. The legal obstacles that frustrate criminal or civil redress are formidable, including the threshold task of piercing the cloak of anonymity to unmask the real identity of cyber-bullies, stalkers, and defamers. But we have more than lawsuits in our tool kits.

Administrators, faculty, and above all, students may boycott, block, and these sites and the thrashers who populate them, simultaneously affirming what we believe in and stand for. The First Amendment may protect anonymity, and federal law may largely immunize gossip-mongering-privacy-invading websites, but neither anonymity nor immunity need be embraced as defining values of the university. Those who participate in the discourse of the liberal arts and sciences do not customarily hide behind screen names. Anonymity in the service of genuine political dissent is one thing, anonymity in the service of the destruction of human dignity quite another.

In undertaking our efforts to push against these sites and their contributors, we ought never be intimidated by the claim that fighting back against a culture of rumors is itself antithetical to free speech values. The university's very existence is predicated on the making principled value judgments about the content of speech. We are in the content business. In our daily work on campus, all ideas are not created equal. We make scientific judgments, mathematical judgments, historical judgments, philosophical judgments, legal judgments, creative and artistic judgments, day in and day out. We hire and fire on the basis of content. We assign grades on the basis of content. The notion that all content-based judgments presumptively violate freedom of speech is conceptually incoherent as applied to a university.

My faith in the power marketplace of ideas leads me to a faith that the overwhelming majority of our students will want to do the right thing. They need to be encouraged, individually and collectively, to boycott the race to the bottom, and instead join the noble quest for a campus culture of robust expression tempered by respect for human decency. In the end, the fate of these sites, and the nature of our campus culture, will rest primarily in the sound judgment and values of our students. We need to encourage and support the reflective development of that judgment, and the best of those values.

Rod Smolla is the dean of the Washington and Lee University School of Law (Va.) and has written extensively on free speech issues.

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