Time recently described the frequency and ferocity with which Internet users, often women, members of racial, ethnic, religious minorities, and members of the LGBT community, experience Internet trolling.  Speech, ranging from vitriolic personal attacks, to racial and religious slurs, to threats of rape, to the development of slang terms like “cucks” to describe male feminists, to disclosure of personal contact information, causes many Internet users to avoid certain topics or disengage from the Internet community or public life.  Internet trolling, according to the Time piece, is “the main tool of the alt-right” (famous for the men’s rights movement and anti-immigration views).  Trolling is used as a way to voice displeasure against an all-female Ghostbusters and to galvanize support for controversial views.

In many ways, this type of speech is contrary to the ideal of public discourse that is civil, well-informed, sophisticated, and inclusive of a diversity of perspectives.  In some cases, such as where the speech would cause reasonable fear for one’s immediate safety or would incite others to cause imminent physical harm, the speech loses its protection and becomes criminal behavior.  However, because of our free speech protections, most of the trolling speech, even truly horrendous speech that gets very close to the line of threatening or inciting, cannot be prohibited.  In essence, then, Time is arguing that our highly protective free speech doctrine can be counterproductive to social discourse and civic betterment.  But what the Time article misses is both the importance of allowing this speech as a matter of First Amendment doctrine and the importance of the speech itself as a matter of free speech values.

As a matter of First Amendment doctrine – the law that protects our First Amendment freedoms as against state censorship ­– we erect a very high bar before speech becomes unprotected as threats, harassment, or incitement.  Individual websites can create their own policies that allow greater speech restrictions or censorship of certain hateful speech or viewpoints.  Reddit can decide to have a speech-protective platform.  Facebook can decide to suppress hateful viewpoints.  The state cannot.  First Amendment doctrine reflects a great skepticism of the state suppression of speech, even speech that emotionally harms other individuals or causes them to self-censor.   Some scholars argue that certain types of Internet speech should be labeled harassment — essentially that we should lower the bar on what constitutes actionable harassment, or that we should import our standards for employment harassment to the Internet.  However, the employment arena is essential to one’s economic well being and involves a dramatically different context than the Internet, the most democratic medium for speech ever invented. Currently, our First Amendment rights remain quite expansive.  You should not feed the trolls, but you are not allowed to take their food away.

One of the biggest contributors to trolling, anonymous speech, is protected as a matter of First Amendment doctrine even if it leads to generally respectable people saying truly disgraceful things.  Anonymous speech allows those whose views are outside of the mainstream a platform to express their ideas.  Constitutional liberties protect minority interests against the majoritarian democracy; in the case of trolling, the minority refers to a minority viewpoint, and may be voiced by those whose life experiences, unique approach, lack of exposure to different ideas, or intolerance render their views unpalatable to the majority or to those in power.  Trolling is, in many ways, a necessary evil, an unfortunate byproduct of our constitutional right not to have the government decide which speech is detrimental to public discourse or cultural progress.

According to Times columnist Joel Stein, “[t]he alt-right argues that if you can’t handle opprobrium, you should just turn off your computer.  But that’s arguing against self-expression, something antithetical to the original values of the Internet.”  As a matter of First Amendment doctrine, of course, those who self-censor are doing so by choice, not by state fiat.  The alternative, allowing civil liability or criminal sanctions to attach to the trolling speech, would mean others would self-censor because of state force.  And because of difficult line-drawing problems, the unpredictability of jury verdicts, and the costs of litigation, many who self-censor based on legal prohibitions might actually have something useful to say, if only to shed light on how many people share the same detestable (to many) position.

Beyond the need to allow the speech as a matter of First Amendment doctrine, Internet trolling reflects some positives for free speech values — values that are essential to a thriving free speech culture regardless of the imposition of the state.  Trolling is generally bad for free speech values because it causes those unwilling to stomach incessant horrible attacks to remove themselves from discussion or public life.  Female journalists often contemplate quitting.  That is undoubtedly a free speech vice.  But trolling is used by both the political left and the political right to fight against the perceived injustices in our society committed by those who wield more power than the anonymous Internet user.  Trolling is an unfortunate and misguided use of political activism, but it is a tool to voice displeasure with the remake of a beloved film with an all-female cast, for example, which is also an inherently political act.

The alt-right has whipped itself into a frenzy over the all-female Ghostbusters, and some have engaged in hacking, privacy invasions, and attacks that are no longer First Amendment protected.  That conduct should be punished.  But what has emerged from the trolling that constitutes protected speech is the visibility of a pocket of society that cannot be ignored; we must contend with the view, correct or incorrect, that perhaps the media/society has gone too far in its compensation for historical and current treatment of women.  And perhaps those who are angry/hateful are the only ones who feel comfortable expressing this view; those at the extremes are generally the most vocal.  Ultimately, I would hope that debates about women and the media could happen in a more civil and less hateful way, but I firmly believe that there is a shred of truth (perhaps minuscule) in every person’s perspective.  Free speech values, and autonomy interests, are served when we allow the Internet to represent the full panoply of views – or at least when we allow platforms like Twitter to decide for themselves what sort of content they will allow.  The payoff is often beautiful counterspeech expressing support for the targets of trolling, counterspeech that sometimes convinces others of their ignorance.  (If only the two sides would engage more with each other, grapple with the nuances of every issue, and recognize their fallibility.)

I am not arguing that Internet trolls are this generation’s “Fuck the draft,” although it is true that one man’s vulgarity is another’s lyric.  Direct, personal attacks are quite different than abstract, angry political speech.  True threats should not be protected, and courts need to contend with doxing and its intersection with free speech.  We should model free speech values by staying civil and tolerant even in the face of provocative, emotionally charged, wrongheaded, and even intolerant views.  But the trolls are not all bad.  They are a mirror of our worst selves, but they are the id of our democracy.  In silencing the trolls, we would also lose the perspectives of the embittered, the vulnerable, and the disenfranchised.