The Public Life of the Virtual Self

Ari E. Waldman, California Western School of Law

Abstract

While the Internet has changed dramatically since the early 1990s, the legal regime governing online speech and liability is still steeped in an early myth of the Internet user, completely hidden from other Internet users, in total control of his online experience and free to come and go as he pleases. This false image of the “virtual self” has also contributed to an ethos of lawlessness, irresponsibility and radical individuation online, allowing hate and harassment to run wild. I argue that the myth of the online anonym is not only false as a matter of technology, but also inaccurate – it does not reflect who we are online, what we want and how we engage in Internet society. I argue that decreasing online anonymity, the mediation of our online experiences through intermediaries and the involuntary nature of much of our online presence underscore the need for the kind of digital virtue in our laws and in our online conduct that is missing from and incompatible with the tale of the virtual anonym. In this way, I provide a philosophical foundation for what others have called “digital citizenship.” I show how the myth of the online anonym has led to free speech lawlessness online for the same reasons that modern free speech doctrine steeped in the language of Kant and neo-Kantian liberals like John Rawls has ballooned free speech protections toward absolutism. And, I argue that the more accurate vision of the virtual self is, like Aristotle’s man in the polis, a more appropriate foundation for speech and morality discourse online. Judges, policy makers and online content providers should see themselves as partners in an essential community of man, rather than as outsiders whose talismanic adherence to principles of individual autonomy – and nothing else – allows them wash their hands of responsibility for rampant hate, threats and bullying online.