What If We Took Internet Toxicity Seriously?

Debates about Section 230 and the First Amendment seem hopeless. But what if we actually enforced the laws on the books against online malefactors?

I’m always skeptical when someone responds to some proposal for new legislation with “why don’t we enforce the law on the books?”. Oftentimes, that’s a dodge, and an insincere one at that- the person making the argument knows that the laws actually on the books will not be enforced and in fact doesn’t really want them to be fully enforced. For instance, the gun rights movement makes that argument all the time about weapons regulation, and it’s perfectly clear that the last thing they actually want is strict enforcement of all existing gun laws.

When “enforcing existing law” isn’t argued in bad faith in that direction, it is sometimes a bad argument in the opposite direction. For instance, everyone knows there are darned good reasons we don’t maximally enforce immigration law- doing so would lead to scenes of humanitarian disaster both inside the country and at the border. You can certainly argue that we need more or less immigration enforcement, but obviously there are reasons we don’t do things that lead to scenes of migrants dying en masse near the border or with the season’s crops going unpicked on America’s farms. Just calling for the laws to enforced avoids debating the level of appropriate enforcement, when in fact that question is central to the entire enterprise.

But there is a big debate brewing on an issue where it seems to me that serious enforcement of the laws on the books could be a live issue: harmful speech on the Internet.

Right now, there is both a political and intellectual deadlock on the issue of whether the government should step in to try and do something about the harms of social media. On the one side, reformers propose repealing or modifying Section 230 (the blanket protection for websites that post user generated content) or even seeking rulings from the courts that Facebook, Twitter et al. are “common carriers” or “state actors” subject to government regulation. On the other side, civil liberties advocates worry about modifying Section 230 or curtailing the First Amendment rights of platforms, and sometimes argue that the tech sector can itself do more content moderation.

But while this is all going on, the members of a violent, Internet-inspired mob are being prosecuted one by one for coming to the Capitol to act out their rage on January 6. And that got me thinking: what if we actually did something about criminal acts on the Internet?

Let’s start with the lowest of low hanging fruit: death threats. We know that prominent people get them on the left and the right, whenever they say something that offends some group “on the other side” or even just because they are the focus of a news story. And then we hear a news report or see a bunch of Tweets about the death threats, sometimes with the screenshots of the threats attached.

And when I see this, I say “wait, what?”. Because out in the real world, death threats are serious business. If you get a brick thrown through your window that says “die you fascist prick”, your local police department may very well investigate and see if they can catch the perpetrators. If you receive telephone death threats, the police may get a pen register warrant and try to trace the calls. If you received a handwritten death threat, it may get dusted for fingerprints, subjected to handwriting analysis, or even possibly tested for DNA.

But online? I haven’t heard of any significant cases of people getting arrested for making death threats. And that’s outrageous.

Let’s start here: a serious death threat is not protected by the First Amendment. While pure rhetorical hyperbole- saying “if he cuts me off on the road again I’m gonna kill that bastard!”- is protected speech, because nobody could seriously take that as literally saying you are going to kill anyone, a threat communicated with the intent to intimidate is unprotected under Virginia v. Black, a Supreme Court case involving cross burning. And every jurisdiction in the United States has statutes criminalizing death threats. There’s also a federal statute, Title 18 Section 875(c) of the United States Code, which allows for up to 5 years in federal prison for making a death threat that crosses a state line. These are, effectively, unenforced statutes in the context of the massive amounts of death threats on the Internet.

So we could start there. We could say that no matter what your arguments and positions and tactics are on the Internet, no matter how nasty you are, the moment you send a serious death threat to someone, it’s going to be investigated. Your internet provider and social media accounts are going to be subpoenaed. We’re going to find out who you are, and just like the folks who stormed the Capitol on 1/6, we’re going to track down as many people who do this as we can and prosecute them publicly and make examples of them. The 1/6 prosecutions are going to be a massive deterrent to anyone storming the Capitol again, as ordinary people who should have known better but went to a very dark place are now having their lives upended by the federal government. Some very public prosecutions of people making death threats could have the same impact.

And once we start seeing real deterrence on death threats, we can move on to other threats of violence and do the same thing. In addition to scaring people to the point where they don’t make these threats anymore, this sort of approach would eventually create norms as well. Perhaps you’d start to see platforms start to take more effective action against threats as well, and perhaps you’d see ordinary Internet users shun people who make the threats.

There are also other laws that could be enforced as well. Stalking and harassment laws, and laws against invasion of privacy, often apply to Internet communications. The law in these areas is closer to a patchwork, so the enforcement might turn out to be less consistent. But still, where the laws make such prosecutions possible, there should be an effort to identify internet stalking and harassment, and to prosecute doxing of private information as well.

The diciest issue surrounds incitement. Incitement does receive limited First Amendment protection- under Brandenburg v. Ohio, only where someone incites a violation of the law both with the specific intention of doing so and in a way that is likely to cause an imminent criminal act, can someone be prosecuted for incitement. But still, I bet there are some people who can meet that standard, especially among the doxing crowd that loves to tell mobs to show up at people’s homes in the middle of the night. We should at least try to get some of these people.

The key point is that other than the incitement issue (which I admit is an area where some caution is warranted as “incitement” prosecutions have historically been used to silence unpopular speech), none of this poses any threat at all to the First Amendment. Nobody’s right to speak will be compromised by stopping death threats, or stopping rape threats against feminist authors, or stopping targeted harassment campaigns. Indeed, it will make Internet discourse better, not worse, because it will encourage people to develop norms against these sorts of behaviors. The point you would like to get to is a point where when someone makes a death threat or posts someone’s home address, the other members of the community tell the person to knock it off and it doesn’t have to go to law enforcement at all.

And most importantly, putting real law enforcement resources into enforcing these laws will send a message to the recipients of these sorts of threats and harassment, that they can contact law enforcement and that the perpetrators will be found. Right now a ton of bad behavior on the Internet is never even reported, because people figure that the perpetrators are shrouded in anonymity anyway and nobody ever does anything about them. That needs to change. We should start enforcing the laws on the books.