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.

Court: 'no recourse' for victims of defamatory postings under Section 230

Sir William Blackstone, who knew a thing or two about the law, wrote in his Commentaries on the Laws of England:

[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.

Why you can't trust legal analysis that doesn't link to legal documents, part 437

Among the starkest lessons I've learned since I started this blog is this: Never write about a legal issue without reviewing the underlying legal documents. Don't write about a new lawsuit until you've read the complaint. Don't write about a motion unless you've read the briefs.

Today's example of what happens when this rule is ignored comes from UPI, which reported that actor Ron Livingston "is suing Wikipedia, saying the online encyclopedia's page about him incorrectly identifies him as gay." Techdirt dutifully followed the UPI report without any checking, declaring the suit "obviously dead-in-the-water" due to Section 230 of the Communications Decency Act.

One problem: Livingston didn't sue Wikipedia. As THR, Esq. -- an excellent publication that almost always does link to the legal documents it discusses -- accurately reported today, Livingston (technically his loan-out company) sued an unknown individual who allegedly impersonated Livingston online and posted accusations that he is gay on Wikipedia and Facebook. The complaint includes claims for libel, false light, and violations of Livingston's statutory and common-law right of publicity, and seeks actual and punitive damages. Presumably Livingston will seek discovery (IP and email addresses and other identifying information) from Wikipedia and Facebook, which he hopes will identify the poster. Livingston can then name the individual in the complaint, and proceed against him. Section 230 won't protect the individual; it only shields the service (i.e., Wikipedia or Facebook) that hosted the material.
Complaint in Coupleguys, Inc. v. John Doe

There are a few interesting issues buried in this lawsuit. First, is it defamatory to falsely label someone as gay? It's a very interesting issue; obviously many people don't like being falsely called gay, but some gay rights activists argue that to permit a defamation action for a false accusation of homosexuality perpetuates the harmful notion that there is something wrong, or shameful, about being gay. Indeed, a New York federal court recently ruled that a false accusation of homosexuality is not defamatory per se. (I haven't researched this question under California law, which I assume will apply here; feel free to weigh in in the comments with relevant citations.)

Second, is what alleged here really a right of publicity violation? I'm skeptical. There are no allegations that the poster had any commercial purpose; the complaint seems to alleged that he was simply engaged in some sort of malicious prank. While the cases in this area aren't terribly consistent, I tend not to think that right of publicity is the correct claim here.

Third, this case once again demonstrates the awesome power of Section 230. Livingston didn't sue Wikipedia or Facebook because Section 230 clearly protects them here, at least on the libel and false light claims. (Whether the right of publicity claim is a "law pertaining to intellectual property" and thus outside the scope of Section 230's protections, see 47 U.S.C. 230(e)(2), is a tougher question. Compare Perfect 10, Inc. v. CC Bill LLC, 488 F.3d 1102 (9th Cir. 2007) (state IP claims not immunized under Section 230), with Doe v. Friendfinder Network, Inc., 540 F.Supp.2d 288 (D.N.H. 2008) (state IP claims immunized under Section 230).) But let's assume Livingston wins; the court agrees that the statements are defamatory and infringe his right of publicity, and awards him money. That doesn't solve the problem that's really bugging him: that people are saying false things about him on the web. Under Section 230, the court cannot order a site to remove defamatory content it didn't create, even after it's been determined definitively that the content infringes the plaintiff's rights. The court could, presumably, order the defendant to remove the content he has posted (though the complaint does not specifically request this remedy). But what if the site won't permit that? Or what if another bozo re-posts the same material? Or what if, despite the best efforts of Livingston's attorneys, they can't find whoever posted the offending content? Or what if he's dead? Section 230 means he has no effective recourse, and the false information may remain there forever.

Maybe that's an acceptable result, necessary to preserve free speech on the Internet. But whatever the case, I doubt it's a result Congress intended when it passed the CDA back in 1996.

Update: make sure to read Sam Bayard's analysis of the issue whether it's defamatory to falsely call someone gay. "[T]he courts appear to be split, but it is hard to say for sure because of the evolving nature of the inquiry," he concludes in his post at the Citizen Media Law Center site.

Also, still no correction at Techdirt's post, which continues to claim, falsely, that Livingston sued Wikipedia. The post's subhed mocks Livingston's attorneys for supposedly failing to do "research,-research,-research." That, in a post that failed to do even one "research," and that continues to report false information, even after acknowledging in an "update" that a commenter alerted the author to the error. "Updates" are to report new developments; errors demand plain, old-fashioned "corrections."

Law Professor dismisses suit vs. Above the Law; no settlement; avoids sanctions and attorneys' fees

Just eight days after filing his pro se suit over postings on the Above the Law legal blog, University of Miami Law School professor D. Marvin Jones has voluntarily dismissed his complaint, without a settlement.
Jones v. Minkin Dismissal

As Above the Law notes, "Pursuant to Rule 41(a)(1)(A)(i)(B), the dismissal is without prejudice. But if Professor Jones were to attempt to refile at this point in time, he would encounter a statute of limitations problem." The move will allow Jones to escape paying sanctions or attorneys' fees for filing a complaint that was shredded across the legal blogosphere. The defendants' counsel Marc Randazza issued the following statement to Above the Law:

I’m relieved that Mr. Jones came to his senses. We were prepared to file a motion to dismiss and a motion for sanctions, and we were confident that both would have been successful. I am consistently unimpressed by academics and anti-speech parties who think that the courts are there for the redress of foolishness, not the legitimate redress of valid legal grievances.

I think Jones' dismissal is a tribute to the power of the blogosphere to, at least every once in a while, shame bad actors into doing the right thing.

Law Professor sues 'Above the Law' blog; time to go back to complaint-drafting school

Above the Law is one of the nation's foremost chroniclers of the wackiness of the American legal system. And now Above the Law is an involuntary participant in a lawsuit that demonstrates the wackiness of the American legal system -- and the American legal academy.

Here's the story: D. Marvin Jones is a professor at the University of Miami Law School, where he teaches constitutional law, criminal procedure, and employment discrimination. In September 2007, Prof. Jones was arrested and charged with solicitation of prostitution, after Miami police said that he offered $20 in exchange for sex to a woman who turned out to be an undercover cop. Of course, the story was irresistible to Above the Law, which delights in highlighting lawyers' most unlawyerly behavior. And so the blog ran numerous posts on Jones, dubbing him "The Nutty Professor" and posting the "incident report" on his arrest, on which it commented, "Note the tension between (1) Professor Jones’s pimpin’ ride, a Mercedes SL500, and (2) his alleged offer of a mere $20 to the 'undercover officer possing [sic] as a prostitute.'" It also ran a photocollage forwarded by a reader, which depicted Jones' face on a $20 bill and imagined him conversing with prostitutes. The charges were later dropped, and his record "expunged," reports the National Law Journal, and Jones remains on the Miami faculty.

But, of course, that is not the end of the story. Last week Jones, acting pro se, filed a complaint in federal court in Miami against ATL Founding Editor David Lat, as well as ATL's parent company and David Minkin, the parent's co-founder and publisher. The complaint includes three causes of action based on ATL's alleged insinuation that Jones had committed a crime, and on its posting of the photocollage: 1) false light; 2) invasion of privacy; 3) and copyright infringement, based on ATL's display of a photo of Jones.
Jones v. Minkin Complaint

On what grounds may Jones' lawsuit be dismissed? Let us count the ways (and, please, feel free to suggest more in the comments):

1) The false light claim is DOA. How do we know? Because the Florida Supreme Court told us in October 2008, in no uncertain terms, that false light simply doesn't exist as a cause of action in Florida:

Because we conclude that false light is largely duplicative of existing torts, but without the attendant protections of the First Amendment, we decline to recognize the tort....

Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098 (Fla. 2008). How a Florida law professor could file a lawsuit grounded in a tort that, only a year before, had been rejected by the Supreme Court of his state, is beyond me.

2) Jones' complaint makes much of the photocollage, which it calls a "racist cartoon." (Jones is African-American.) But any (non-IP) claim based on ATL's printing of it is clearly barred by Section 230 of the Communications Decency Act, which provides that "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." On page 2 of the complaint, Jones concedes that the photocollage was "forwarded" to ATL by a third party. In other words, it was "provided by another information content provider." Section 230 should bar any Jones' claims insofar as they are based on the photocollage. Update: for those questioning whether Section 230 would apply here, please read such cases as Batzel v. Smith, Barrett v. Rosenthal, and Blumenthal v. Drudge. Yes, courts have interpreted the reach of the statute as extraordinarily broad -- likely much broader than Congress ever intended.

3) Jones' claim for invasion of privacy is premised on the allegation that ATL "ma[de] private records public." Huh? ATL posted a police "incident report" about Jones' arrest -- clearly a public record. See Fla. Stat. § 119.105 ("Police reports are public records except as otherwise made exempt or confidential."). (The Miami Herald also reported on the incident report. See "UM law professor charged with solicitation," Miami Herald, Oct. 26, 2007.) Jones emphasizes that his arrest was "expunged," but ATL still has the First Amendment right to report on it. Jones simply hasn't identified any private information allegedly revealed by ATL.

4) Lastly, Jones' copyright claim is almost certainly doomed as well. A copyright plaintiff must allege and prove ownership and registration of the copyrighted work. See 17 U.S.C. § 411; Montgomery v. Noga, 168 F.3d 1282, 1289 (11th Cir. 1999). Jones has done neither. In fact, his complaint says that the photo was "stolen from the UM website without permission," strongly suggesting that the university -- not Jones -- is the actual copyright owner. And in the unlikely event that Jones is able to prove that he is the copyright owner, ATL has a good chance of prevailing on a fair use defense. See Sedgwick Claims Management Services, Inc. v. Delsman, 2009 WL 2157573 (N.D. Cal., July 17, 2009) (granting motion to dismiss copyright claim on grounds of fair use where blogger had posted photos of business executives he criticized on blog).

Jones has asked for a total of $44 million, as well as an injunction ordering ATL to remove the offending content. He'll be lucky if he escapes without an award of sanctions and attorneys' fees. (Florida has two narrow anti-SLAPP statutes, but they don't appear to apply here.)

Both Jones and Lat declined to comment to the National Law Journal. I've emailed them both, to give them the chance to comment here if they choose.

Update: Prof. Volokh agrees with my take, calling the lawsuit "a loser. In part, it’s even downright frivolous."

'Skank' blogger to sue Google? Good luck.

Rosemary Port, revealed to be the authoress of the "Skanks in NYC" blog that allegedly defamed model Liskula Cohen, now plans to bring a "$15 million federal lawsuit against" Google for revealing Port's identity, the Daily News reports.

To which I say: good luck.

Here's the legal background. Cohen sought to sue the blogger behind "Skanks in NYC" for defamation. But she didn't know who the blogger was. So she initiated proceedings in New York state court for pre-action discovery under CPLR § 3102(c), asking a judge to order Google, which hosted the blog through its Blogger service, to produce identifying information (e.g., email and IP address) to Cohen. Port (while remaining anonymous), hired attorneys to resist Cohen's demand for information. She argued that the words in the blog were not capable of defamatory meaning, and that the revelation of her identity would violate her constitutional right to speak anonymously.

Google, for its part, sat on the sidelines, submitting "essentially...no substantive opposition" (p. 1) to Cohen's application under section 3102(c). Port told the Daily News, "When I was being defended by attorneys for Google, I thought my right to privacy was being protected." But I think she is seriously mistaken if she thought she "was being defended by attorneys for Google." Again, Google did not resist Cohen's discovery action, and Google's attorneys owe their loyalty to Google, not Port. Google wouldn't turn over the information voluntarily, but as soon as Cohen obtained her court order, Google complied, producing an email address associated with the Blogger account, from which Cohen was quickly able to identify Port.

But now, according to the Daily News, Port will "charge Google 'breached its fiduciary duty to protect her expectation of anonymity,' said her high-powered attorney Salvatore Strazzullo." (Please do make sure to check out the web site of said "high-powered attorney," wherein he boasts that he has been "glorified as an outspoken attorney BY THE INSIDER television show and called 'a cross between a bulldog and Chihuahua' BY NY POST WRITER ANDREA PEYSER.")

No matter how "high-powered" her attorneys, I'm at a loss to see how Port has any sort of claim against Google here. Port's attorneys argued in court to protect her anonymity -- and lost. Is she saying that if Google's attorneys had actively opposed the discovery action, the result would have been different? That seems highly doubtful; the judge fully considered the relevant arguments and precedent, and made a decision that First Amendment expert Sam Bayard of the Citizen Media Law Project concluded is "probably the right call at this stage of the lawsuit." Moreover, Port knew exactly what she was getting into when she signed up for Blogger. Google's privacy policy states that it will reveal information in response to "legal process or enforceable governmental request," which is exactly what happened here. Once the court granted the discovery order, Google had no choice but to comply. Is Port's attorney really going to argue that Google had a "fiduciary duty" to refuse?

Port's attorney Strazzullo says he is "ready to take this all the way to the Supreme Court." I doubt he will find much sympathy there.

UPDATE: Once again demonstrating its inability to get basic legal facts right, Techdirt claims that "Liskula Cohen bizarrely sued Google and an anonymous blogger for putting up a blog...." False, as I first explained last January. Cohen sought pre-action discovery under CPLR § 3102(c), seeking information from Google, but has not sued Google, Port, or anyone else. UPDATE II: Now the author of the Techdirt post says I'm "being nitpicky" because I've "got some weird obsession with trying to make us look bad..." Actually, Techdirt does quite an excellent job at making itself "look bad" when it comes to reporting on legal matters. The lede of the post on Cohen contained two errors: 1) that Cohen "sued Google"; and 2) that Cohen "sued...an anonymous blogger." And rather than correct its errors, it attacks me personally. And its effort to defend itself contains further errors. Techdirt says "for all intents and purposes, [Google] was" sued. Wrong. Google was merely the subject of third-party discovery; it was not remotely "sued." And Techdirt writes, "Cohen went to court, forced Google into court, forced Google to defend itself and a judge ruled against Google and in favor of Cohen." False. As I explained, Google did not "defend itself"; it submitted "essentially...no substantive opposition" (p. 1) to Cohen's application. And the judge did not "rule[] against Google"; it ruled against Port. Why anyone would rely on Techdirt for accurate reporting on legal issues is beyond me. UPDATE III: Goaded by its own commenters, Techdirt finally corrected its error. But it still insists, "In common parlance, the company was sued, which is why pretty much every reporter wrote it up that way." Actually, the real reason some (but certainly not all) reporters made that error is because they're sloppy and don't take the time to make sure they get basic legal concepts right. UPDATE IV: It only gets better. Techdirt is now back to insisting, "She sued." Then why did it correct its post? And citing erroneous newspaper reports for that falsehood does not exactly help its cause.

Eater LA sorry for posting anonymous tip on bar, but can The Must track down tipster?

Tuesday I posted about an item in LA food blog Eater LA that accused a bar called The Must of serving substandard cheese and "not adhering to simple food safety standards." Today Eater LA apologized:

We ran this tip without contacting the owners of the restaurant, who have since refuted the tip in its entirety. We apologize to the owners of the restaurant, and our readers, for not investigating our source's claims before airing them on the site. The resulting post didn't rise to our standards, and we shouldn't have published it.

Well, good for Eater for acknowledging the error of its ways. The original post with the apparently false allegation, however, remains up -- and, as I explained, assuming that Section 230 of the Communications Decency Act applies here (which I consider highly likely), The Must can't sue Eater, or force the site to take down the offending post. That remains true even if The Must can prove beyond all doubt that the allegations were false. (Yes, Section 230 is a very strong law, which even the California Supreme Court recognized has "disturbing implications.")

As I also said, Section 230 does not bar a defamation suit against whoever supplied Eater with the tip. But the problem for The Must is that it may turn out to be difficult or impossible to identify the tipster. The Must could file a "Doe" suit, and then take depositions and issue subpoenas to try to ID the actual culprit. There has been speculation that the tipster was a former employee of The Must; they could call in their former employees for depositions and ask them, one by one, if they know who dunnit. But they all might answer, "I dunno, wasn't me."

Of course The Must could also ask Eater LA to give up its source. But The Must would run straight into brick walls called Article I, § 2(b) of the California Constitution and California Evidence Code § 1070 -- better known as the California Reporters' Shield Law. Under the shield law, California journalists (including those who work for online news outlets) cannot be forced to give up their sources or unpublished information in a state civil case, which is what a potential libel suit over the Eater LA post would be.

So it seems unlikely that the The Must would be able to find much vindication in the courts. Hopefully they can take some comfort knowing that, judging from the reaction among Eater's own commenters, The Must has come out smelling like a rose, and Eater like a fetid pile of month-old Humboldt Fog.

UPDATE: This seems like a good solution too.

Section 230 and the case of the (allegedly) cheapo cheese

The LA foodblogging world is all a-Twitter over a post in the popular Eater LA.

The Eater LA post re-prints an email from a tipster, whose identity the blog does not reveal, accusing a Downtown wine bar called The Must of surreptitiously serving cheapo cheese from a low-quality supplier, and various hygiene-related misdeeds. The Must's owners vigorously dispute the allegations, and told the LA Times that they "have receipts to prove it." And, says the Times, they are "angry enough to threaten...Eater LA with legal action."

Assuming that the charges are indeed false, I completely sympathize with The Must's owners in their anger at Eater LA, which apparently did not even contact them before publishing. But even if the allegations are libelous, it's doubtful The Must could win a suit against the blog. Here's why:

Section 230 of the Communications Decency Act provides virtually airtight immunity from defamation suits for web sites that re-publish material provided by others. It's why the LA Times is protected from suits over reader comments posted below its articles, and Craigslist can't be held legally accountable for running hooker ads. In a case called Barrett v. Rosenthal, the California Supreme Court made clear that the act of re-posting an email on a web site is immunized by Section 230 -- even though it acknowledged that protecting "those who intentionally redistribute defamatory statements on the Internet" has "disturbing implications." The victim's remedy, said the court, is to sue the person who actually made the allegedly defamatory statement.

There's one wrinkle that might -- and I emphasize might -- possibly trip up Eater LA, despite Section 230. Eater LA can certainly be held liable for its own words. And the Eater LA blogger did write this:

Owner Coly Haan once described her menu as "white trash food with a twist," apparently now it's erring more on the "trash" side.

Is the second reference to "trash" defamatory in itself? Or can these words be characterized as incorporating by reference the allegedly defamatory statements by the anonymous tipster, thus converting statements originally made by the tipster into Eater LA's own? I'm skeptical on both points, though less than 100% sure.

So if The Must wants to sue, its best target is the tipster, not Eater LA. Happy hunting...

Craigslist drops 'Erotic Services'; a win for Section 230

Craigslist has abrubtly reversed course and decided to jettison its "Erotic Services" category, caving in the face of pressure from state attorneys general, a federal lawsuit by the Cook County, Illinois sheriff, and public uproar over Boston's "Craigslist Killer." Reports the AP:

The online classified ads site Craigslist will drop its "erotic services" category that critics called a front for prostitution, replacing it with an adult category to be monitored internally, government enforcers from three states said Wednesday.

Elaborates the LA Times:

[T]he classifieds site has created an "adult services" category for which every new listing will be manually approved. Currently most ads on the site are posted without review.

As of today, the erotic services section will no longer accept new ads, and will be removed completely in seven days. Posts to the "adult services" section will cost $10, twice as much as those for erotic services listings. Craigslist had agreed to donate proceeds from the erotic services listings to charity, but says that rule will not necessarily apply to the new ads.

I'm no expert on the best way to combat prostitution (and I'm skeptical that the government should even be in the business of combating most forms of prostitution), and I have my doubts that this move -- and does a "move" from "erotic services" to "adult services" really count as a "move"? -- will have much of an effect on the overall level of online hooking.

But I do think Craigslist's action is smart -- both for Craigslist itself and for all sites that rely on the protections Section 230 of the Communications Decency Act to avoid liability for content submitted by others.

Section 230 immunity is virtually airtight, and would almost certainly shield Craigslist from liability from lawsuits arising out of the posting of prostitution ads. But by hiding behind that shield, knowing full well that the "Erotic Services" section is nothing more than a marketplace for criminals and their customers, Craigslist was doing real damage to Section 230. As I've argued before, by continuing to maintain such a section in light of the abundant evidence that it was being used as a gathering place for criminal activity, Craigslist was virtually inviting courts, and eventually the Congress, to narrow and weaken Section 230's protections -- a result that could lead to liability for Craigslist's other, legitimate sections, and ultimately cause all sites that now feature user-submitted content to alter or even eliminate their comment sections, bulletin boards, and similar features.

Craigslist didn't have to make this change to avoid liability over today's controversies. But by doing so, it lessened the chances of judges and politicians doing real damage to a law that has made possible free speech on the Internet. And that is a good thing. Sometimes the smartest move is not to push the law to its limit -- lest it break.

Craigslist CEO: the Baghdad Bob of Boston

Craigslist CEO Jim Buckmaster, quoted in the Boston Globe:

"I would not describe any section of our site as 'sex related.'"

Craigslist Boston "Erotic Services" section (this morning):

Let Me Help You RelaXXX! - w4m - 27 - (Incall Only Nashua, NH) pic

There's Nothing Like a Little Afternoon Delight..... - w4m - 25 - (outcalls) pic

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Craiglist is almost certainly immune from civil or criminal liability for the acts of Boston's alleged "Craigslist Killer," thanks to Section 230 of the Communications Decency Act. However, the near-comical, head-in-the-sand, Baghdad Bobbish denialism from Buckmaster is going to lead to enormous political pressure to amend, and perhaps gut, Section 230 -- which would be a bad thing. As I've argued before:

[H]ow long will it be before Congress starts getting pressured to amend Section 230 to carve out from immunity cases involving prostitution services, or racist roommate-seekers, or rape wishes? And then does so, after hearing emotional testimony from battered prostitutes, anti-discrimination advocates, and women subject to vicious verbal abuse on law school message boards? And then the next group of victims demands its own exceptions, and then the next, until Section 230 is left in shreds.

Craiglist may think it's standing up for Internet freedom by fighting for its "right" to maintain a section that clearly advertises illegal activity. But by doing so, it risks jeopardizing that freedom for all the responsible actors out there.

Lawyer for 'Skanks in NYC' blogger invokes 'douchebag' precedent; fights effort to reveal blogger's identity

Lawyers in the Liskula Cohen/"Skanks in NYC" imbroglio were back in court today, fighting over whether the judge should order Google to reveal the identity of the blogger(s) who allegedly defamed the Canadian model. Reports the Daily News:

A lawyer for the blogger argued before Supreme Court Justice Joan Madden that the raunchy digs at Cohen amount to nothing more than  "youthful, jocular, slangy" comments that are common on the Internet.

"Skanks, ho - if you Google it, you get millions of hits," said lawyer Anne Salisbury, adding that the comments are "obviously in a sarcastic tone."

She cited a recent ruling in which aNew Jersey judge tossed out a defamation suit filed by three women whose pictures showed up on the Web site "Hot Chicks With Douchebags."

"It's snide, it's trash talk, it's the bane of the Internet right now," Salisbury said before Madden.

What? No mention of the "skank" precedent that is actually on all fours (pun possibly intended) with Cohen's case?

As for Cohen's arguments, the Daily News reports:

Steven Wagner, a lawyer for Cohen, said the site is doing damage to the model's career and demanded that Google and its Blogger.com service take down the site.

"They impugned her chastity," he said. "It is affecting her business."

The law often presents interesting and difficult issues of causation. Attempting to prove that a 37-year-old's modeling career is on the wane because of a blogger's allegation of skankiness -- rather, than, say, because of her 37-years-oldedness -- is a causation issue that will surely be taught in first year torts classes for decades to come.

The AP reports that the judge "reserved decision" on whether to order Google to cough up the bloggers' ID.

UPDATE: Colorful and entertaining report from the courtroom in Slate's The Big Money. But "Cohen...sued Google"? We've been through this before: NO!

Craigslist and Section 230 shortsightedness

By now you have surely heard about the lawsuit filed by Cook County Sheriff Thomas Dart against Craigslist, seeking damages and an injunction regarding the prostitution ads in the site's "Erotic Services" sections.

Professor Eric Goldman -- my personal guru on such matters -- believes the suit "is almost certainly preempted by 47 USC 230," and I trust that he accurately describes the current state of the law. (For the uninitiated, Section 230 of the Communications Decency Act provides virtually airtight immunity for web sites against non-IP claims that are based on material posted by users.) I have emailed Sheriff Dart's attorney asking why he believes Section 230 does not bar this suit, but have not yet received a response.

But put aside the statute and the cases for a minute and ask whether Craigslist is acting responsibly here. Yes, when it wins this suit, as I expect, it will get to crow about its brave stance protecting Internet freedom. But at what cost? Craigslist surely knows that the vast majority of the ads in its "Erotic Services" sections are for clearly illegal services. (Take 2 minutes and look for yourself.) And yet it continues to maintain these sections. My fear is that by doing so, when everyone knows full well the illegal nature of what's advertised there, courts are virtually invited to carve out exceptions to, or narrow the scope of, all the solidly pro-immunity Section 230 cases cited in Professor Goldman's post. I'd argue that's exactly what happened in the Ninth Circuit's Roommates.com en banc opinion, which narrowed Section 230 immunity, quite likely because the judges in the majority were outraged and offended at what they believed was the site's knowing facilitation of users choosing roommates based on race. (Analysis by Professor Goldman here.)

And if Craigslist wins in court, how long will it be before Congress starts getting pressured to amend Section 230 to carve out from immunity cases involving prostitution services, or racist roommate-seekers, or rape wishes? And then does so, after hearing emotional testimony from battered prostitutes, anti-discrimination advocates, and women subject to vicious verbal abuse on law school message boards? And then the next group of victims demands its own exceptions, and then the next, until Section 230 is left in shreds.

Craiglist may think it's standing up for Internet freedom by fighting for its "right" to maintain a section that clearly advertises illegal activity. But by doing so, it risks jeopardizing that freedom for all the responsible actors out there.

Yes, Section 230 provides 'different rules' for online publishers -- and that's a good thing

Techdirt today runs a very strange post asserting that "Section 230 Does NOT Mean That Online Publishers Have Different Rules" from traditional publishers like newspapers and television stations. In fact Techdirt calls the "different rules" characterization -- which is so obvious and widely accepted that I've never heard anyone, from a plaintiffs' libel lawyer to a First Amendment zealot, quibble with it -- not just "wrong," but "[v]ery, very wrong."

What do attorneys who litigate Section 230 cases mean when they say that the statute provides "different rules"? Simple: a newspaper that runs defamatory speech provided by others may be held liable for that speech, while a web site that runs the exact same speech won't. In other words, there is one rule for traditional media, a different rule for online media.

A 2007 case called Media Six v. Ziglar, involving a letter to the editor of a newspaper, illustrates why the "different rules" description of Section 230 is perfectly apt. A newspaper published a letter to the editor that accused a local prosecutor of wrongdoing. The prosecutor sued the newspaper for libel, and the jury returned a verdict of $75,000. Gannett's report on the case accurately describes the law:  "the verdict demonstrates how the law treats letters to the editor printed in the newspaper very differently from statements posted by outsiders on news media Web sites." (my emphasis). Gannett elaborates:

Libel law often provides protection to letters to the editor, but newspapers still can be liable for publishing their contents.

By contrast, in the online world, federal law protects news organizations from liability for statements posted by outsiders on their Web sites. Section 230 of the Communications Decency Act says that "no provider or user of an interactive computer service" is to be treated as the publisher of information provided by someone else.

While there are few decisions that address Section 230 in the context of news media Web sites, the cases interpreting the statute have made it clear that Section 230's protection extends to comments posted on Web sites. As a result, the federal statute would likely be held to protect a Web site from liability if a user posted a statement identical to the letter to the editor at issue in the Ziglar case.

Of course, saying that Section 230 provides "different rules" for traditional versus online publishers is not a criticism of the statute (and certainly not, as Techdirt describes it, an "attack"). Different circumstances often justify different rules, and there is a strong case to be made (with which I happen to agree) that Section 230's grant of immunity for online publishers of user-provided content is justified as a means to preserve free speech on the Internet. But calling those who -- accurately -- describe Section 230 as providing "different rules" as "[v]ery, very wrong" is just bizarre. The fact is that the rules are different, and justifiably so.

One last thing: Techdirt describes journalist David Margolick, who wrote an excellent article on the AutoAdmit lawsuit, as an example of a "clueless [person]." This is a nasty and wholly unjustified attack on one of the country's best legal journalists. Margolick -- a graduate of Stanford Law School -- accurately described the state of the law of online defamation, as well as the difficulties Section 230 presents for those who are truly defamed online (and, contra Techdirt, there is plenty of plainly defamatory speech at issue here, as Professor Volokh explains). Margolick deserves praise for his interesting and informative article -- not to be called names.

For an excellent summary of Section 230, and how it provides -- yes -- different rules for online and traditional publishers, see the Citizen Media Law Project's Section 230 page here.

Portfolio: 'Slimed Online'; David Margolick tells the tale of the AutoAdmit lawsuit

David Margolick has a great article in Portfolio on the lawsuit brought by two Yale Law School students against anonymous posters on the message boards of "AutoAdmit" who wrote unbelievably nasty things about the students. Summing up the stew of anonymous speech, irresponsible commenters, Google search results, and a federal law that provides virtually unlimited immunity to hosts of defamatory comments posted by others, Margolick writes:

Were Google and AutoAdmit newspapers or television stations, [the plaintiffs] would have had a ready remedy: They could sue. Someone printing or airing falsehoods or statements likely to defame or cause extreme emotional distress couldn’t then simply walk away. But different rules apply to internet intermediaries: Websites like Google and AutoAdmit merely deliver content rather than producing it themselves. Just over a decade ago, seeking to encourage the free flow of information on the internet and itself under pressure from telecommunications companies, Congress passed legislation stating that such websites could not be sued for carrying defamatory material. The measure in question is Section 230(c) of what has surely become one of the most striking misnomers on the books: the Communications Decency Act of 1996.

As a result, two entirely different brands of discourse have developed. In the traditional media, things remain reasonably decorous. But online the promise of anonymity, though far flimsier than most suspect, unlocks something ugly and menacing in ostensibly normal people. And while anything goes in the Google era, everything also stays, and spreads. The whole world is now the bathroom wall, and that wall can never be entirely painted over.

I have great sympathy for the two women at issue, who deserve redress. And I have only contempt for the posters, who deserve whatever is coming to them, and probably more. At the same time, however, I have serious doubts that this lawsuit will achieve any of the desired results. But read Margolick's article, and decide for yourself.

While we await the NY Supreme Court's 'skank' decision...

In The Know: Are Reality Shows Setting Unrealistic Standards For Skanks?

h/t "John Dwyer's Credibility"

'Skank' update: hearing on discovery motion 'adjourned' until Feb. 23

Looks like we'll have to wait another month before we know whether model Liskula Cohen gets to find out who's behind the "Skanks in NYC" blog that is not a big fan of Ms. Cohen. C&C admits it has little idea how the New York Supreme Court actually works, but it appears from its fancy online docket that the hearing on Cohen's effort to obtain pre-action discovery from Google under CPLR § 3102(c) has been "adjourned" until Feb. 23:

The suspense is killing us...

UPDATE: turns out there actually was a hearing today. Reports Daily Online Examiner:

Judge Joan Madden said in court she wouldn't unmask the blogger until he or she had been served with papers and given an opportunity to object. Madden ordered Google to email the blog creator with the court papers by Wednesday.

According to the Examiner, the judge punted on the issue of whether Skanks in NYC actually defamed Cohen:

The judge, to her credit, hesitated to rule that the statements were enough to support a defamation lawsuit. "I'm not comfortable signing this," she told the lawyers in an off-the-record bench conference.

More from Citizen Media Law Project.

BREAKING 'SKANK' UPDATE: Google was NOT sued

Yesterday's Copyrights & Campaigns "skank" update relied on the New York Daily News' "reporting" on the Liskula Cohen blog controversy. Well, never again. The Daily News' lede "informed" us that "A Vogue cover girl is suing Google in an attempt to unmask the blogger who trashed her as a 'skank' and an 'old hag.'" (emphasis mine). But, in a C&C world exclusive (our first ever!), I can now inform you that Google was not sued!

Here's the scoop. Cohen wants to sue the people who posted nasty things about her on "Skanks in NYC." One problem: she doesn't know who they are. But Google, which hosts the blog, may. Or, rather, Google may have the IP addresses (and other identifying information) of the people who posted the allegedly defamatory comments. And once Cohen has the IP addresses, she can find out what ISP the alleged defamer(s) used to post the "skank"y accusations, which might lead her some day to some actual human beings (if one can even use that term for the people who created Skanks in NYC).

So what do you do if you're a wannabe plaintiff in NYC who doesn't like being called a "Skank in NYC," but you don't know whom to sue? Well, seek an "order for pre-action disclosure" under CPLR § 3102(c), of course. That's a special New York law that lets anyone ask a court for permission to seek discovery even before suing someone. Convenient! And that's exactly what Ms. Cohen did. She did NOT sue Google. Rather, she just asked a court for permission to demand that Google give her the alleged defamers' IP addresses. Google is not a defendant, but a mere "respondent." So I'm sure they're breathing easier up in Mountain View.

Now, a round of kudos. First, to Ms. Cohen's attorneys at Wagner Davis P.C. for NOT suing Google. As I explained yesterday, that would have been a sure route to dismissal under Section 230 of the Communications Decency Act (not to mention an embarrassing smackdown on the world's top Section 230 blog). Next, to Dareh Gregorian of the New York Post, who accurately reported on Jan. 6 that Cohen "is seeking a court order that would force Google to reveal the person or persons behind the postings so she can hold them accountable with a defamation lawsuit." The Post's article may have been a bit coy on the procedural posture of Ms. Cohen's fight, but at least it didn't name an incorrect defendant, when in fact there is no defendant yet at all. And lastly to Sam Bayard of the Citizen Media Law Project, whose application of actual New York defamation case law to the facts of this case advances our knowledge of the law of "skank" by several orders of magnitude.

The New York Supreme Court has scheduled a hearing on Ms. Cohen's request for discovery on January 26 at 9:30 am. C&C is currently accepting applications for a New York stringer available to cover the proceedings.