James C. Goodale, the former vice chairman of The New York Times, in the New York Law Journal (registration required):
Until the Internet came along, a publisher/distributor, similar to Mr. Ciolli and his Web site, would have responsibility for the content disseminated. With the advent of the Net, however, Congress passed a law that changed this age-old concept.Generally, under this law, a person who provides a site as a bulletin board for others has no responsibility for its content. If, however, such a provider actively edits content, there could be responsibility.
With little responsibility for speech, the Internet would seem to be a First Amendment paradise. But the fact that a bulletin board operator has no responsibility defies human experience. It has led directly to the dilemma of the two Yale law students.
They may have no remedy for their destroyed reputations and perhaps even careers.
As a society, we have long ago concluded that reputations of public officials, and the like, have limited protection under the First Amendment. But the Yale law students are not public officials, public figures or otherwise engaged in public discourse. They are private individuals. . . .
Court orders to unmask anonymous speakers are not slam dunks. There are excellent First Amendment reasons, in the ordinary course, not to unmask them.
The Federalist Papers were written by anonymous speakers. Dissidents’ political speeches around the world are posted on the Net by anonymous speakers.
But the law students’ case does not involve speech critical of government, or what First Amendment lawyers call “political speech.” It is, as noted above, private speech.
Causing private, but very real, harm. It’s wrong, what’s going on with Internet-based defamation.