Illicit But Still Free Speech

There was a recent development in my ongoing conversation with critics of this blog's fairly liberal policy on commenting. The NY Times has an editorial today about a court decision last week (link). A judge dismissed a lawsuit against Craigslist which claimed that the website promotes prostitution.

Among the editorial's points:

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• "As Congress has recognized, if an Internet provider had to police every posting that a third party put up, the cost would be enormous -- and it would likely stifle communications."


• "Craigslist warns users that offers or solicitations of prostitution are prohibited."


• "The Communications Decency Act of 1996 protects 'interactive computer services' -- ranging from small bloggers to giant Internet service providers -- from liability, in most cases, for speech they did not help create."

This blog's policy, based on halakhic advice from an authority, is to warn commenters not to post improper statement and that such comments will be deleted, and to delete those comments when there is time to review them (see these posts: I, II). Currently, both R. Ari Enkin and I review comments, as our schedules permit. I'm not convinced that we catch everything but we are both happy to respond to legitimate concerns about comments that require editing.

According to the Communications Decency Act of 1996, it seems that we do not have to police our comments for illegal statements (let's assume here that lashon ha-ra is illegal). Since this blog has a warning against slanderous comments and the cost of reviewing comments before they appear is enormous (in terms of time and loss of readership), we have no legal obligation to monitor the comments at all. Is this a good law?

I was discussing this with someone and he suggested that it is not. If I learned that the comments section on this blog was being used to plan terrorist activities, wouldn't I immediately shut it down despite the simultaneous good comments? If I ran a taxi service through which many murderers traveled to and from their victims' homes, wouldn't I stop the service even if it inconvenienced the legitimate passengers?

He suggested that it is a matter of the severity of the crime. If the crime is sufficiently severe then that will outweigh the benefits of the service (or the costs of monitoring it). I would slightly revise this argument to account for both the frequency and severity (actuaries know where this formula comes from). If a relatively minor crime occurs frequently then it might outweigh the benefits of the service, or if an enormous crime occurs even rarely then it might as well.

Exactly how to quantify these items is beyond me but I'm not sure it is necessary. The vocabulary alone helps us. We can make the claim that providing platform for lashon ha-ra in the comments is infrequent and the crime is not that severe, both of which I don't really believe but at least we can identify these specific points as issues to debate. Since both of these points ring false to me, we will continue to edit the comments.