Tuesday, February 2, 2010

Miami official threatens blogger over comment; what about Section 230?

It's amazing to me that some lawyers -- and elected officials who happen to be lawyers -- making legal threats against bloggers seem to be completely unfamiliar with Section 230 of the Communications Decency Act, a statute that represents a major shift from traditional libel law.

Today's example comes from a Miami blog called Coconut Grove Grapevine. On Jan. 28, the Grapevine published a post about a Miami City Commission hearing on bar closing times. Someone subsequently submitted a comment, purportedly from Commission Chairman Marc Sarnoff, expressing "support" for "drinking and driving after 3am even if it claims the lives of others," and signed "XOXO Marc Sarnoff." Unsurprisngly, the comment wasn't actually from Sarnoff, and his attorney fired off a letter to Tom Falco, Grapevine's editor, demanding removal of the comment.

I don't fault Sarnoff for being annoyed at the comment. (Though I do question whether it was truly defamatory; would a reasonable person really believe that Sarnoff expressed "support" for drunk driving in a blog's comment section?) But I do fault his attorney (and Sarnoff, who is also a lawyer), for the letter, which makes completely unfounded legal threats and ignores the relevant law.
Sarnoff Letter
The letter states:
Please be advised that you have a duty as the owner, editor, and publisher of the website, to police what is being posted on your website. See § 836.03, Fla. Stat.; see also Becker v. Hooshmand, 841 So. 2d 561 (Fla. 4th DCA 2003). As such, since the post is the direct and proximate cause of injury to Commissioner Sarnoff, it is actionable against you and your web site.
That's just flat wrong. Under Section 230, an "owner, editor, and publisher" of a web site emphatically does not "have a duty...to police what is being posted on [his] website" by third parties. As Section 230(c)(1) says, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." If defamatory material is posted to a site by a third party, that third party may well be liable, but Section 230 provides virtually airtight immunity for the site itself. And the letter's citations to state law are beside the point; Section 230 preempts state law. See id. § 230(e)(3) ("No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."). (The Becker case is inapposite; it merely held that a Florida court had personal jurisdiction over a Pennsylvania defendant who allegedly defamed a Florida resident. It did not even discuss Section 230.) Simply put, unless Falco himself wrote the offending comment (and there is no indication that he did), then he is not legally responsible for that fact that it appears on his blog.

Next come the threats:
On behalf of Commissioner Sarnoff, I demand that you remove and formally retract the defamatory and libelous statements immediately. If you fail to remove and retract said statements, Commissioner Sarnoff will be left with no alternative other than to pursue all possible legal recourse against you and your website. This includes, but is not limited to, financial compensation for damages you have caused to Commissioner Sarnoff's reputation via the defamatory statements. In addition, Commissioner Sarnoff will seek attorneys' fees and costs for pursuing said action.
These threats are empty. Under Section 230 there is no "possible legal recourse against [Falco] and [his] website." He is simply not liable for defamatory statements "provided by another information content provider," even after notification of the statements' allegedly defamatory nature. See, e.g., Zeran v. America Online, Inc., 129 F.3d 327, 328 (4th Cir. 1997).

But Falco says that he "do[es] moderate comments and do[es] not allow any malicious ones to pass," though "this one got by." Does his screening of comments remove his Section 230 immunity? No. As the Citizen Media Law Project's Section 230 page says, "Screening objectionable content prior to publication [] is the quintessential activity that Section 230 was meant to immunize, and courts have consistently held that screening content prior to publication does not make an interactive computer service liable for defamatory material it does publish on its site."

Lastly, though Falco appears to have been fully protected by Section 230, and could have left up the comment without risking liability, I think he did the right thing by removing it. Just because web site operators don't incur liability by leaving up defamatory material posted by others doesn't mean they should. The best way for Section 230 to retain its vitality is for operators of web sites to act responsibly, as Falco appears to have done here.


  1. Sarnoff is evil using his law degree to scare people. Not right.

  2. Mr. Sarnoff's attorney's letter was just as funny as Demi Moore's attorney's letter a month or so ago about her "missing hip"

  3. Miami New Times has done a story of this issue:


    This Sarnoff chracter sounds like a real creepy person.

  4. If you would take about 15 minutes to read the Coconut Grove Grape Vine last 6 months of blogs and subsequent comments you would never venture into Coconut Grove with your family or friends. The author of this blog is simply misantropic in nature and has a death wish for Coconut Grove because of an inability to accepted by the general community, or in all probability by any normal community. Most of his blogs are designed to create rage, hate and anger----tumult which is bad for any community. Hopefully, not many people read this blog.

  5. Read a few months of the Coconut Grove Grape Vine. Every fifth blog is created to specifically create some degree of hostility.
    There are exchanges/comments and the rats come out to feast. This type of activity harms Coconut Grove's tourist industry and property
    value, but does reduce the tax burden.

  6. Mr. Sarnoff does have legal standing against Tom Falcon of the Coconut Grove Grape Vine. It is not "just" one false comment. Tom has written numerous insulting lies about numerous individuals and business establishments, the City of Miami Police, City of Miami Code Enforcement to mention just a few. At the time I did not know Tom Falcon----I mentioned the words "Georgia Guidestones" twice in a Coconut Grove Grape Vine comment and that alone caused Tom to call my home in a fit or rage and he screamed and yelled out vulgarity for over 10 minutes and (sincerely) only stopped to catch his breath. It took me a few minutes, but I did realize the caller was Tom Falcon of the Coconut Grove Grape Vine and I call out his name and he became instantly quiet. Tom had tried to bully me and he threatened me time and time again until I identified him.

    You see, Tom Falcon plays out the same ploy in the Coconut Grove Grape Vine and by proxy creates verbal written attacks on people Tom points out by name. But, Tom's afraid of two Bar owners and attacks Mark Sarnoff to gain their favor as in Tom's cowardly. Tom attacks public institutions; our post office, our police officers, Mark, myself as he hides behind a keyboard in virtual space and he carefully choses folks he calculates won't come after him physically.

    Tom has no license, permit, no corporate status, did not file a fictitious notice, has no Florida tax number, no listed telephone number or address-----which is his business, but Toms' in hiding as in cowardly, as in trying to be judgment proof.

    Tom is in my community, a really nice community that Tom's culture could never join so he hides behind a keyboard and soils our good name with all the tumult he can muster.

    In short Tom Falcon of the Coconut Grove Grape Vine is a tumultuous misanthropic cowardly liar putz nincompoop of the first degree and he is not welcomed in the Grove community.

    That is why Mark Sarnoff must go after Tom Falcon. I'd go after him, but where would I tell the process server to serve Tom?


  7. The comment Mr. Sarnoff referenced is but the proverbial tip of the iceberg. Tom does add and subtract words from my comments. Tom eliminates numerous comments and monitors based on personal preference. Point/telling example: Why did Mr. Sarnoff have to send his notice to an e-mail address? Tom attacks public institutions: our postal service, our police officers, Mr. Sarnoff and others while hiding behind a keyboard in virtual space. This can easily be proven by reading six months of Toms' blogs and comment section. Tom would ultimately harm the Grove community if it were not for the fact that intelligent folks do not read this blog, but most folks do smash a mosquito when it's noticed.

  8. @Jobie Steppe and Anon. 8:43:

    I take no position on what Falco may have said elsewhere on his blog. If he wrote something that is defamatory, he can and should be held accountable for it. But none of that changes the fact that federal law immunizes Falco from comments written by others --- even if he moderates comments to decide which of them get posted.

    Sarnoff may have legitimate reasons to be angry with Falco, but his letter over the "drinking and driving" comment completely misstated the law and made baseless legal threats. And I find it rather chilling that a public official (especially one who is a lawyer) would make such threats.

  9. Mr. Sheffner, I appreciate your response and would like to respectfully say that I have prevailed in 10 out of 11 pro se complaints, namely, I hope, because I was right and can type fast. The case I did not win was because the judge made it clear he did not like pro se litigants, so I literally backed out the door after several months and a few motions.

    I understand you have no personal interest in this issue between Mr. Sarnoff and Tom, but-

    I'm no lawyer, but I actually love law and you would have to look hard to find anyone who loves how ideals are translated into the written word to where we can form notions and concepts as to what civilized folks can do.

    I have not read section 230 or Zeran V. American Online and in the same breath I say I presently have an appellate state case # 08-481 AP & Federal Case # 09-23305 that the City Attorney's Office and a large law firm with 178 attorney's filed motions to dismiss, involving over 200 total pages of legal jargon that were denied.

    My point: it is my opinion Mark has only made reference to one very isolated comment, if you will, by some stranger. And I would agree, no big deal, this one comment----but, it's not just one comment. Tom is misanthropic and his word(s) whether he prints them or allows them to be printed or even if they appear on his watch, his venue, could, might, may get Mark Sarnoff killed----frankly, quite easily.

    Tom tried this with me and I made it abundantly clear what I would do to him if he every attempted such a ploy directed at me, i.e., to cause other people to come after me from words he printed or allowed to be printed in his venue.

    Tom Falcon is fully aware of what he is doing when he targets someone.

    This is worse than libel and slander and I can tell that Mark has grown tired of Tom hiding in virtual space behind a keyboard yelling fire in a crowded theater.

    I've already send a profile of Tom to Mr. Sarnoff, with absolute documented facts; lies, libel, slander time and time again on his blog directed at other folks Tom targeted and will be the first in line to testify as to what Tom plays out in the Coconut Grove Grape Vine and Tom knows this.

    In addition, all this filth harms my community.

    If section 230 or Zeran V. American Online do not spell out every slight nuance there is always the slogal I see in most court rooms, which reads, "We Who Labor Here Seek Only the Truth".

    I'm not the slightest bit embarassed to say characters like Tom Falcon, if given power start wars with their misanthropic nature and kill a lot of innocent decent folks.

    I've experience them before, I have stood up to the bullies and I have prevailed and Tom, not knowing my nature made the mistake of calling my home, yelling and screaming out threats and vulgaties and tried to bully a character such as me and has literally put his butt between his legs and simply wishes he had never made that mistake.

    Mark is on the right patch and I suggest forgetting about the exact wording of the law, as I have in many instances and move ahead because this Tom character practices a culture of tumult.

    Why are you thinking I'm long winded?


  10. Dear Jobie,

    I am not one of the many in the blogosphere who wants to be seen or heard. I actually came across this whole incident with Falco and Sarnoff and wanted to read this blog's take on the law. I have no time to do my own legal research but will defer to the writer of this blog and accept their interpretation.

    You seem to have a lot of dislike for Falco and frankly I have no dog in the fight nor do I know the man. It is his blog and he can share his views on his blog. If Falco had been doing this for a while, as you so claim, I highly doubt that its taken Sarnoff this long to have his attorneys fire off a letter.

    You are the one who apparently follows Falco's blog very closely. Given the long winded rant you have written in the previous post, you are yearning for attention. 11 pro se lawsuits? It seems to me a lot like someone who loves attention and make a fuss in order to be heard.

    In the end it appears Sarnoff was wrong and the letters sent by his attorneys, aside from having no ground to stand on as this blog indicates, are pathetic. A public official worried about a comment that is obviously satirical in nature. Wreaks of insecurity and it is pathetic.

  11. Anon 2:06 You & Tom, two peas, same pod. How clever you are to notice I dislike Tom, any fool could see that, but nice of you to say as if disliking someone is negative. You say I rant, another negative as if you did not; you ranted too, so what? You say you don't want to be seen or heard, yet you are doing what you say you aren't----another negative. You say I like attention and frame a normal human characterist as yet another negative. You say "as you so say", wrong again with your negative, I suggested reading Tom's blog and see for yourself. You create the negative that my filing pro se law suits is to create a fuss in order to be heard----how clever you and Tom are to state the obvious framing it in the negative. Of course I pro se to create a fuss to be heard and every all law suits do that.

    I say straight out I don't like Tom Falcon and sign my name, you on the other hand hide behind anon and a key board in virtual space just like old Tom does and create negatives about things that are perfectly normal and prove my point about Tom and his band of followers. You all are sad misanthropics who create tumult upon folks who have an opinion you don't like. The force that binds you to Tom is your inability to fit into normal community relationships, to participate successfully within a group/community, so you create negatives and attack other peoples opinion from a safe distance.

    Thanks for demonstrating these facts and confirming my theme about Tom and his brand of followers. Additionally, your observation that Mark Sarnoff is "Wreaks of insecurity and it is pathetic". You say you came upon Mark Sarnoff and this Tom Falcon and wanted to get the take on the story from a legal person. You seem to have a very, very strong negative take on a person you indicate you just learned about "Wreaks of insecurity and it is pathetic" And your take on me seems a bit over kill. You sure like to be negative, do you? You and Tom, two peas same pod.

    Jobie Steppe

  12. anon 2:06. I've read Tom's blogs and find most highly offensive, negative and hostile as are 50% of all comments. You attacked Jobie Steppe in the same manner for having an opinion and appear to have an equally strong negative impression of an elected official, who you claim to have just read about. You claim to be a very busy person, yet find time to read blogs and make comments. I smell Tom.

  13. Ben, would the Florida statute cited in the letter therefore be unenforceable in light of Section 230? It would seem so.

  14. @South Florida Lawyers:

    Having read the FL statute (though not any case law interpreting it), yes, it appears that it would be preempted by 47 USC sec. 230, and thus unenforceable. I also question whether it violates the First Amendment.

  15. @SLF:

    I should have said preempted and unenforceable as applied against a web site. The First Amendment concerns would apply in any medium.

  16. Tom Falco is the author of The Coconut Grove Grape Vine and Naked Boy Chronicles. When this connection was established, within about 18 hours Tom terminated the Naked Boy Chronicles, made up the story that it was published by an equal share of women who were expressing an interest in a 9 year old boy. When the story spread in Coconut Grove the resulting comments were extremely harsh against Tom Falco, so Tom eliminated all comments in the Coconut Grove Grapevine to ensure folks did not see, generally speaking how much Tom Falco is disliked by average normal professional males, but is liked by feminist types, including ladies and men alike. During the past several weeks old Tom has been running around like some chicken who has just had their head cut off------in circles, sideways, backwards, then forward and spins in circles and has been called a cone headed bone head, a meat headed dick head and has posted he was going to end the blog Friday, 05, 2010 - - - - do we have to wait until midnight, what's wrong with here and now?

  17. Like I said before, I don't give a shit about drinking and driving after 3am, even if it claims the lives of others, as long as it doesn't happen in my neighborhood.

    XOXO Marc Sarnoff


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.