When most people think of the First Amendment, they think of the evils of government censorship. Yet the current greatest threat to free speech does not come from the government. It comes from litigious private parties. It's a dangerous threat because it's stealthy.
If the DOJ threatened to shut down Crime & Federalism, you'd all be livid. Everyone recognizes that the government should not be allowed to threaten free speech.
Fits would be thrown and apologies would be made.
What if a court threatened to shut me down. Would the threat be as obvious?
When someone files a frivolous lawsuit, he's trying to use the power of government to do what no other branch of government would do.
What happens when a private person tries using the power of the court to shut down a website?
One victim of private censorship is Clayton Cramer, a leading historian on the Second Amendment.
Clayton Cramer was almost forced to shutter his blog after Righthaven, sued him for copyright infringement.
Right Haven was a copyright troll. They purchased all of the Las Vegas Review-Journal and Denver Post's copyrights. They'd then troll the web, looking for websites containing LVR and Post articles.
Righthaven had many victims. Many victims included small website operators who did not themselves reproduce any copyrighted articles. Instead, commenters posted articles to the websites. Although clearly a website owner cannot be held liable for infringement
Righthaven is almost dead, because the Randazza Firm kicked the shit out of it.
But not everyone can afford legal help. Many people allowed Righthaven to extort it, as a purely economic matter. If defending a lawsuit costs $20,000 that you don't have, then putting a $5,00 settlement on a credid card makes sense (especially when you consider that the maxium exposure for copyright infringement is $150,000).
Even your humble narrator has faced threats of litigation, and actual litigation. Joseph Rakofsky, another private actor, filed a frivolous lawsuit against the American Bar Association, Washington Post, and about 80 other people - including me. (I'm proud to disclose that the Randazza Firm, the lawyers who shut down Righthaven, are defending me against Rakofsky's frivolous lawsuit.)
Now some of you will be hard asses. "Freedom isn't free." Cute sloan that is ignorant of constitutional text. Speech is supposed to be free. The First Amendment protects, after all, "freedom of speech." Read the Constitution. It's all in there.
If something is causing maritial strife, or if some parent has to choose beteween college fund payment and legal bills, there's a major problem.
Yet as highly as I think of myself (count the I's in this sentence!), I'm also humble enough to realize that I read far more than I write. People who run most websites are surprisingly civil, middle-class people who offer fascinating and diverse perspectives on life.
They also have family relationships to preserve. They had kids who need braces. They, unlike the Washington Post, don't have lawyers on retainer. Righthaven poses the greatest danger to the people we need most.
Not many of the sites I read are run by guys like me. Most are, you know, not looking for a fight. Sue me. I'll fight like hell, and if you think a civil lawsuit scares me, you haven't done much dilligence. Lawsuits only add to my life story.
But I'm a man with a calloused heart. Should speech only be free for guys like me?
Government censorhip is an evil we all recognize, unite to defend against, and thus usually defeat.
We haven't paid attention to harm private litigants cause. We need to start, we need to unite, and we need to take the firehouse to sewage like Joseph Rakofsky, Marc Stephens, and Righthaven.