BY PETER SCHEER–Some people have no choice but to live in a cesspool. (Consider the young protagonist in Slumdog Millionaire, leaping into a pool of human waste in order to escape a locked latrine.) But news organizations are not among them.
The cesspool that many newspapers occupy is the “Comments” sections of their websites. This is the space, typically following a paper’s own stories and editorials, where readers have their say. If postings to that space are completely unfiltered, it is sure to be stuffed with the rants and invective of people who have too much time on their hands (and too little gray matter between their ears.)
Reading online comment sections, one can easily get the impression that bigots, psychopaths and conspiracy theorists comprise a majority of newspapers’ online readers. (Note to publishers: This is hardly a desirable demographic to show to advertisers.) In reality, such commenters are relatively few in number, although they are, regrettably, loud and prolific.
Sociologists will someday figure out whether these readers are bona fide nut jobs, or just average Americans transformed by the anonymity, and access to a broad audience, that the internet makes possible. My own guess is that they are the same people who, as high school students, scribbled profanities on bathroom stalls. The internet affords them, as adults, a superior surface for graffiti.
Not all newspaper publishers give free reign to miscreants in their comments section. Among those who do, however, a commonly heard rationale is that they are forced to stay their hand due to legal constraints. In this they are mistaken. It is a mistake based on common misconceptions about what the law does, and doesn’t, require in this area.
Misconception number one is that newspapers, by actively moderating online discussions, and by editing (and selectively deleting) comments, assume liability for defamatory comments posted by readers. Although traditional print publication of “letters to the editor” does carry some of these risks, online publishers of user-generated content enjoy a degree of legal protection bordering on complete immunity—thanks to a 1996 federal law, Section 230 of the Communications Decency Act.
Section 230 protects newspapers that operate their reader Comments section as a cesspool, permitting readers to post whatever they wish, no matter how libelous or harmful. Injured parties can sue the authors of those online comments, but not the newspaper. The newspaper is shielded even if it has been given notice that statements in its Comment section are false and it refuses to remove them.
But newspapers are equally protected if they act responsibly, screening comments or editing them. Section 230 was intended to overturn pre-1996 court decisions suggesting otherwise and giving news organizations a perverse incentive to refrain from editing user-generated comments. Under Section 230, as long as editors don’t alter the meaning of a comment completely (for example, by changing a reader’s comment so that it says the opposite of what the reader posted), the newspaper will be protected.
Misconception number two is the belief that to regulate readers’ comments, enforcing rules of civil discourse on a newspaper website, is to engage in a form of censorship—and that censorship by a news organization, if not strictly illegal, is at least hypocritical.
But this concern confuses censorship with editing. It is the role of news organizations to edit the content that they publish. Although the online venue may remove the need to edit comments for length, it does not diminish the obligation to edit for substance. The First Amendment insulates news organizations from interference by government in their editorial decisions. The independence thus established includes the right, under the Constitution, to control all content published on a paper’s pages or its website.
Reader comment sections have huge potential. Particularly in communities dominated by a single newspaper, an internet-based “letters to the editor” platform offering unlimited space, the opportunity to debate both other readers and the journalists responsible for the paper’s news stories and editorials, can reflect democratic self-government at its best. However, this ideal can only be realized if editors take seriously their responsibility to edit.
A newspaper’s online comments section can be either a cesspool or Platonic ideal. Editors and publishers have to choose.
Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition. Your comments–which will be screened prior to publication–are very welcome.