IP: more on Infoworld column

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Brad Templeton <brad () templetons com>
Organization: http://www.templetons.com/brad
Date: Mon, 11 Mar 2002 15:34:54 -0800
To: farber () cis upenn edu
Cc: msf () theup com
Subject: Re: IP: more on  Infoworld column

> Too many times, the user will complain that his "rights have been violated",
> when in fact the negative action that he complains of was taken by him, not
> in compliance with an order of a court, but as a strategic move to avoid
> liability or the threat of litigation.


How factually accurate but morally false.  That the court system favours
the wealthy and powerful over the week and poor is factually true, but
your essay is written as though that is an intended consequence of the
system.

In fact the following items are also true:

    a) The courts have regularly declared that, in examining speech law,
       we must consider the concept of the "chilling effect," when people
       will "volutarily" as you describe it, censor their own speech out
       of fear of the law, even incorrect fear.  This is to say that if
       the law and the courts create too much uncertainty in the minds of
       the public in what they can say, so much that they "voluntarily"
       self-censor out of that fear, then the law must be examined for
       a chilling effect and that effect reduced or removed.

       In general this revolves around the gray area, where the party can't
       know how a legal case will resolve, and so "voluntarily" self-censors
       just to be on the safe side.   The courts don't protect you for
       being an idiot about the law, but it is a valid and approved
       constitutional principle that you are not supposed to have to
       predict the courts in gray areas in order to exercise your rights of
       free expression, or at least that this requirement be minimizied.

    b) The law has gone even further, and stated in some states with the
       anti-SLAPP law concept, that parties which use the threat of the
       law to bully when in fact an informed party with competent and
       expensive advice and deep pockets would not be bullied.


So I find those conclusions dubious.  When it comes to speech, we must be
clear on what we can say.  We need to improve the structure of the law
so that people can't be silenced with the threat of court action by a
wealthy party who seeks not damages, but to silence critics, competitors
and reverse engineers because they can.


------ End of Forwarded Message

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