[I]t is a general and indisputable rule that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.Or, as Chief Justice Marshall similarly put it in Marbury v. Madison:
The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury.Clearly, neither Blackstone nor Marshall had ever encountered Section 230 of the Communications Decency Act. For, as a federal court in Chicago held yesterday, the statute that shields web sites from liability for defamatory posts by their users can indeed result in situations where there is no remedy for speech adjudged to be defamatory, and thus outside the protections of the First Amendment. See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 (1974) ("there is no constitutional value in false statements of fact").
Here's the case, Blockowicz v. Williams, in a nutshell:
1) Defendants posted allegedly defamatory statements about plaintiffs on several sites, including Facebook, MySpace, and a site called Ripoff Report, which bills itself as follows:
Ripoff Report® is a worldwide consumer reporting Web site and publication, by consumers, for consumers, to file and document complaints about companies or individuals. While we encourage and even require authors to only file truthful reports, Ripoff Report does not guarantee that all reports are authentic or accurate.2) Plaintiffs sued the individuals who posted the statements for defamation. (A suit against the sites would have been DOA under Section 230.)
3) Defendants failed to defend themselves in court, so the court issued a default judgment in plaintiffs' favor, as well as an injunction ordering defendants to remove the postings from the sites at issue. Plaintiffs couldn't contact defendants to enforce the injunction. So they instead approached the sites and said essentially: "A federal court has adjudicated the statements about us on your site as defamatory. Please remove them." All obliged -- except for Ripoff Report.
4) Plaintiffs filed a motion to enforce the injunction against Ripoff Report, on the theory that the site, though not itself a defendant, had acted "in concert" with the defendants and thus, under FRCP 65(d)(2)(C), was equally bound by it.
5) The court rejected the "in concert" theory and, apologetically, refused to enjoin Ripoff Report:
The court is sympathetic to the Blockowiczs’ plight; they find themselves the subject of defamatory attacks on the internet yet seemingly have no recourse to have those statements removed from the public view. Nevertheless, Congress has narrowly defined the boundaries for courts to enjoin third parties, and the court does not find that [Ripoff Report] falls within those limited conscriptions based on the facts presented here.So the bottom line is that the court was utterly powerless to grant the plaintiffs an effective remedy against harmful speech that has no First Amendment value. That's probably the correct result under the statute and the case law explicating it. But I can't imagine Congress would have enacted Section 230 back in 1996 if it knew this would be the result. Or did they disagree with Chief Justice Marshall when he wrote, "The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right."?
(H/T to Prof. Eric Goldman. Goldman usually argues for a very expansive reading of Section 230, but the Blockowicz opinion troubles even him; he writes that the "normative issues are still gnawing at me" and concedes that, "In some circumstances, continued publication may not be the right result.")
UPDATE: I've had a very interesting email exchange with David Gingras, general counsel of Xcentric Ventures, LLC, which operates Ripoff Report. I've invited him to do a full guest post to give his perspective on the issues raised by this case. In the meantime, he graciously provided me with the papers relevant to the order I discuss above; these flesh out the issues and go into greater detail about the parties' respective arguments.
1) Letter From Plaintiffs' Counsel to Ripoff Report and Complaint
2) Motion for Third Party Enforcement
3) Ripoff Report Response
4) Declaration of Ed Magedson, Ripoff Report founder and editor
5) Plaintiffs' Reply
6) Ripoff Report's Sur-Reply
7) Plaintiffs' Sur-Reply
UPDATE II: Techdirt argues that this case demonstrates a "problem ... with the default judgment process" but not Section 230. That's wrong. While it's true that default can sometimes result in anomalies, the problem with Section 230 that this case highlights has nothing to do with default. To illustrate, imagine a different case: Defendant posts allegedly defamatory material on site. Plaintiff sues defendant. Defendant shows up to defend himself (i.e., there's no default). After a full trial on the merits, the court (either judge or jury) determines that defendant defamed plaintiff. The court then orders Defendant to remove the post (which it may do consistent with the First Amendment). But when defendant asks the site to take down the post, the site refuses, saying its policy is never to take anything down. (Or, say, the site is based in Mongolia, has no US presence, and couldn't give a whit about a US court case.) In such a case, again, there's no way to force removal of the defamatory material, because of Section 230. I highly doubt that's an outcome Congress anticipated when it enacted the CDA, or would embrace today.