By Dan Markel, Ethan Leib, Rick Garnett, Matt Bodie, Paul Horwitz , Steve Vladeck, and Orly Lobel
Many people have already pointed readers' attention to the symposium at Concurring Opinions on Danielle Citron's article on "cyber civil rights." There is certainly much to recommend it, and I encourage readers to seek it out and get caught up on the discussion there. And yet, I find something awkward and unsettling about the way much of the discussion has taken place. The CoOp folks have deliberately disabled comments on many of the posts, although a few of the sympoiasts -- by and large those who are most critical of Citron's paper -- have opened their posts up for commentary, and folks who wanted to comment on other posts have been able to use this to circumvent the anti-comment norm of the other posts.
Of course, much commentary can be unhelpful and unduly emotional. But that has not usually been a particular problem on CoOp, and I don't think the comments on the posts that have left the comment option enabled have suggested otherwise. And of course the fact that some skeptical writers have been included in the symposium means some contrary points of view are aired even if no commenters are invited to the party. But the whole thing leaves me feeling quite odd, for few reasons. First, I think it weakens the quality of the public discussion of the symposium, in a way that's at odds with the usual norms of CoOp. One of the original posts in the symposium argues that the editors thought that, "for this topic in particular," the costs of allowing comments would outweigh the benefits. I don't think the results have borne that out; whether or not it was intended, the posts that don't allow comments have an air of ipse dixit, and a kind of "shut up, he explained" attitude toward readers who might disagree, while the posts that allow comments have provided for a more thorough and sensitive airing of the issues.
Finally, there's something about the setup that I think is related to both the overall topic of the symposium and the views taken by those posters who are most sympathetic to Citron's arguments. Those people who are most worried about the potential for "abusive" disagreement have also been, in my view, the symposiasts who have made the most sweeping, tendentious, and unsupported claims, both empirical and normative, in support of their arguments. That makes their "arguments" more like assertions. It not only prevents their arguments from being as strong as they could be -- for, in saying they are making the most tendentious and unsupported arguments, I am not saying they are necessarily making bad arguments -- but it also suggests, ironically enough given the topic, that those individuals who are making the claims that most demand heated disagreement are the same people who, on the one hand, fear being openly and heatedly (or "abusively") contradicted, and on the other would enforce this fear through legal means. Moreover, the fact that they are taking matters into their own hands by blocking comments, although I am not crazy about this move, makes me question whether legal remedies are as necessary as they suggest they are.
Of course, the CoOp editors had every right to make this move. But I don't think it was required, and I think the symposium posts that allow for commentary have been stronger, and produced stronger conversations, than the ones that haven't, which in my view have been more likely simply to accept as true various assertions about both empirical and normative matters that are far more open to debate than they have acknowledged. Notwithstanding the existence of some critics on the panel, that is the best recipe for a "symposium" to become little more than a cheering section of collected monologues. That may, in fact, be what many or most legal academic symposia are: gatherings of people who already agree on political or other grounds and are seeking a means of getting subsidized airfare to hang out with one another. (Is that not a fair description of many of the FedSoc and ACS conferences, despite the invited presence of a few dissenters? And of countless symposia on, say, Brown, or PICS, or other cases?) But we can hope for more.