That Feeling, Revisited

I appreciated the many thoughtful comments on my earlier post regarding the CoOp symposium, and the comments on Orin's excerpt from my post on CoOp.  I assume Dan Solove's post yesterday regarding CoOp's comment practices is either coincidentally timed or that the comment policy during the symposium, which I was reacting to, is part of a larger ongoing conversation at CoOp about these issues.  Either way, the whole conversation was very interesting.  I'd like to offer a few closing thoughts, partly in response to some of my commenters and partly in response to later posts.  

One thing I want to say up-front is that, of course, none of my reactions to the symposium were personality-driven.  Nor do I have any interest in telling other blogs what they should do.  I simply found the whole complex of issues very interesting, and saw no reason why I shouldn't write about it, even critically.  At times, legal bloggers will suggest, gently or otherwise, in "confidential" back channel communications that one ought not criticize one's fellow law-bloggers in public.  The reasons for this range from professional courtesy, to politeness, to the occasional veiled threat of professional consequences.  These arguments strike me as unpersuasive, and in some cases counter-productive; I assume that any half-way virtuous scholar, if she is told not to write about something, will put that topic at the top of her agenda.  I am not saying any of this applies here.  I am saying that I thought it was worth writing about the symposium, and its relationship to the comment policies being practiced there, and saw no reason why I couldn't validly do so.  That my post, and Orin's, elicited such interesting comments rather confirms for me that it was an entirely legitimate thing to write about.  Bloggers, like all writers, should write sensitively and fairly, but they shouldn't consider other blogs off-limits.

That said, here are some thoughts.  

First, Frank Pasquale asks in the comments to my post whether, given my writing on institutional autonomy and the First Amendment, I agree that "the freedom to exclude/not have comments . . . trump[s] the right of others to participate/comment."  I do.  I don't think there is a "right" to participate in or comment on others' blogs.  In keeping with my views on institutional diversity, moreover, I think there is room for a variety of comment policies, from excluding all comments to including all to the current CoOp position, which allows comments generally but warns against trolls, invective, etc.  At the same time, I've said two other things that are relevant here.  First, I think that although the courts may not be able to undermine institutional autonomy, those institutions are still subject to informal moral and/or professional suasion, from within and without the institution.  Churches, for instance, might be entitled to immunity from certain kinds of employment suits, but that does not mean that the church's members, and the public, can't criticize them for their conduct in those cases.  In that sense, although blogs are free to shape their own comment policies, those policies are also legitimate subjects of discussion and critique, both internal and external.  Second, as I discuss in this paper, it is productive to think about the ways in which blogs, as an institution, function, and in particular the ways in which their evolving, emerging norms may differ from methods of self-regulation for other media, such as newspapers.  We don't generally have the same filtering layers -- reporters, editors, etc. -- as newspapers; what we do have is a fairly well-established norm of error-correction and dialogue through comments and linking.  That norm is, as I say, evolving, and still controverted.  But I think it is by and large a useful one, and part of the point of my post was to observe that, in my opinion at least, the CoOp symposium posts that followed this norm were stronger, more responsive, and less driven by argument by fiat than the ones that didn't.  Others may, of course, disagree.  And I should emphasize that such a view is entirely consistent with the comments policy Dan Solove posted yesterday, depending perhaps on how it is administered.

Second, I commend to readers of the symposium the somewhat late post at CoOp by David Post.  David writes, with respect to some of the symposium posts, of his surprise that "the values of free expression seem to have so little purchase within this community of intelligent, thoughtful, and reasonable people. . . . Reading the various comments, one gets an impression of a First Amendment that is more, but not much more, than a nuisance standing in the way of progressive social legislation."  I share this impression, which to me is reinforced by a commenter on his post, who disdains the "libertarian fantasy of the First Amendment" and asserts (correctly or not) about Danielle's article that a counter-speech remedy to disturbing or offensive speech, which is what the commenter is referring to when he uses the word "fantasy," is "the last thing . . . she would support."  All of this reminds me of the free speech battles of the 1990s, in which writers assumed that any champion of the First Amendment was blind to the costs of a free speech regime, told a dramatic narrative about those costs and demanded regulation to address them, and then discounted any free speech arguments to the contrary as fantastic, and their opponents as tools of the extant regime.  These were the discussions in which liberty was endlessly pitted against equality.  They were unproductive discussions, in my view.  I would suggest that we ought not revive them; I would also suggest that, to the extent that some of the posts in the symposium did echo this approach, this suggests that, maybe, not much is added to the ongoing discussion on this issue by adding the words "cyber" or "civil rights."  I don't want to caricature the posts; most of them at least acknowledged speech values, and sometimes much more than that, although a number of them did treat First Amendment arguments with a certain amount of disdain.  I simply want to lend my voice to David Post's in suggesting that perhaps those competing values were not given a full enough treatment by some posters, and that it is unproductive simply to assert that equality trumps liberty.

Finally, my sense throughout was that there was a relationship between the comment policy and the substance of the arguments.  I've already written about that and won't reprise it here.  Let me instead follow that same argument to suggest some of the potential weaknesses of the argument, which was voiced by several posters and commenters, that the contribution of talking in terms of "civil rights" is its expressive value.  I don't oppose expressivist arguments as such, but I think the way these arguments were made in the symposium tends to suggest a problem with those arguments.  What expressive value a law has is entirely contestable, and those questions can't be resolved except through debate; one cannot simply assert that some law has an expressive value, defined in a particular way.  Thus, asserting the expressive value of a law simply shifts the normative debate to a different level; it doesn't resolve it, and the discussion is no more likely to be productive because it is conducted at the meta-level of expressivism.  It seems to me that, consciously or not, this was one way in which the no-comment policy fed into the substance; if one wants a law to have an expressive value, one may want to assert that it does loudly enough to make it so, and in those cases the writer may not want to brook opposition by those who think a law has a different expressive value or none at all.  To the extent that law's expressive value is constructed by its audience, those who argue in favor of a particular expressive value may want to act as if that expressive value is uncontestable, and thus won't want commenters suggesting otherwise, or will want to treat their opponents as being fundamentally wrong or misguided.  I don't think that approach can or should succeed; and again, because I think the expressive values of a law are contestable, I'm not sure whether simply asserting that something is a "civil rights" issue resolves any of the underlying debates.

Again, I thought the symposium was well worth reading, comments or no; and none of this is directed personally at CoOp or any of the posters.  But I do think that the form of the symposium intersected in interesting ways with its substance, and that these intersections suggest questions that some of the symposiasts might want to consider further.  Comments, as always, are welcome....