Regardless of whether or not I actually believe the Dean of Yale College to be an idiot, I am allowed to say this. If Mary Miller or Yale University decided to take punitive action against me because of this image macro, I could sue them into oblivion.
Freedom of speech has been hammered into our heads since elementary school, so we instinctively know that statements like these are considered opinions, and we are entitled to them.
Of course, we also accept that there are some restrictions–we can’t just go around yelling “fire” in a theater, for example. We also can’t publish bad things about people that aren’t even true in an attempt to defame them. That’s libel.
All of this is pretty basic. Now let’s put this in the context of the internet: If I used this blog entry to libel Someone Important, could that person sue the owner of this blog, or even the ISP of the server on which it’s hosted, for libel? Common sense tells us of course not. So does Professor Balkin.
The difference between suing a newspaper for libel and not suing a blogging service is that the former necessarily reviews its content before publication. With most online services, the provider isn’t really involved with the content. That’s how net neutrality, which is most often thought of as a market issue, becomes an issue of freedom of expression: The internet becomes a medium through which to exercise your right to freedom of speech, so regulating it wouldn’t please the old hats that wrote the Constitution.
So if you value your right to call whoever you want whatever you want online, do your part to support net neutrality. Business arguments may hold some sway, as ISPs are private, but once we take that first step, it’s a slippery way down.