I posted this message on the Cyberia-L list this morning:
Date: Tue, 07 Sep 2004 12:47:23 EDT To: CYBERIA-L@LISTSERV.AOL.COM
From: "Peter D. Junger" <junger@SAMSARA.LAW.CWRU.EDU>
Subject: "Moral Suasion" and Internet Publications (was Re: Godwin's up to his old tricks)
I regret that when I started this thread I used as the subject line "Godwin's up to his old tricks'' since that has obviously obscured the issue that I wished to raise, which is not about Godwin, except to the extent that his actions brought the issue rather forcibly to my attention. And, by the way, I do not think that Godwin is an evil person, nor have I any theory to that effect.
I also regret that I raised the issue here before September 5, when the Greplaw Archive was again redacted to remove both Seth Finkelstein's explanation of what the Censorware Project was, and what happened to it, and the editorial insertions that were made in response to what Godwin now calls ``moral suasion.'' The following statement has been inserted in the Greplaw archive in place of the removed material:[This interview has been altered from its original format. Two paragraphs in the original interview have been redacted as of September 5, 2004.]<URL: http://grep.law.harvard.edu/article.pl?sid=03/12/16/0526234&mode=thread>
So there are now, in various archives, three different versions of the interview: the original, the one that was redacted by the additions made in response to Godwin's moral suasion, and the current re-redacted version in which both Seth's response to a question and the earlier editorial insertions were removed.
Now I think that everyone here, including Godwin, will agree that this in not a very happy state of affairs. I also think that the community of those of us who are concerned with law, free speech, and the integrity if the internet should try to develop a set of recommended policies and procedures that can give some guidance to individuals, such as the editors of Greplaw, as to what they should do when they are confronted with a claim that something that they have published on the world wide web or placed in an internet archive is defamatory.
In the old days, when the freedom of the press belonged to the man who owned one, and presses were very expensive, this was not a serious problem--publishers threatened with claims of defamation could simply refer the matter to their lawyers. And I once was one of the lawyers at a firm representing some major print journals to whom such a matter might be referred, although I was way down on the list of those who would be contacted initially. Today things have, of course, changed radically and most bloggers, administrators of e-mail lists, and editors of electronic journals are not going to have a lawyer learned in the law of defamation available. Even the editors of Greplaw, which is published on the website of the Berkman center at Harvard, did not have access to an outside lawyer to advise them and there were no established policies and procedures to guide them.
I think it is an indication of the extent of the problem that, as Godwin informs us, he did not propose the solution of adding the additional material to the archived version of Greplaw's interview with Seth (even though he did apparently supply the text of the additional material).
Another way that things have changed is that on the internet and the web all things are even more impermanent than they are in the less virtual world inhabited by publications that manifest themselves in the form of hard copy. Back in the days when I was a practicing lawyer, there was no way to redact material that had already been published.
I would suggest that one policy should be that only in the most extreme cases should archived material be redacted in response to threats of defamation, moral suasion, or even polite requests and that if there is to any redaction of material in an archive, it should not consist of the addition of new substantive material to the archive.
I got involved in the Greplaw case because Seth sent me a copy of the protest that he was sending to Greplaw when he discovered that material attacking him had been inserted in the archived version of his interview that had been published months before.
I sent a strong protest to the editors of Greplaw pointing out the errors of their ways, including the fact that Seth had a far stronger case of defamation against them for what was said in the redaction than Godwin had against them for what was said in the original unredacted interview.
The message setting forth that protest is included in my weblog in the entry at <URL: http://samsara.law.cwru.edu/blog/archive3/Redoing_What_s_Done.html>.
Shortly thereafter I found myself in correspondence with the director of the Berkman center and finally we spoke by telephone about this matter. It was clear throughout this correspondence and conversation that the director of the Berkman center felt that Greplaw and the Berkman center had been threatened with litigation, and not only by my comments about the possibility of Seth suing them.
Naturally, being caught in the middle of a dispute to which he was not a party, he regretted that the matter had arisen and also regretted the particular procedures that had been adopted in the case. It was also quite clear that he regretted the unfair way that Seth had been treated.
We agreed that the problem arose, at least in part, because of the absence of any policy and procedures to which the editors of Greplaw could have turned for guidance.
At one point he wondered out loud whether the Berkman center should deny access to the many blogs and other publications that use the center's web server. I, of course, expressed horror at that idea and I think persuaded him that that should not be an option. But there is a very real possibility that those who control other web servers will remove web publications or modify their archives in response to threats of defamation suits or moral suasion.
What should people in the position of Greplaw's editors do when they are confronted with complaints like the one that Greplaw's editors received from Mike Godwin?