I'm heading down to hear the oral arguments on the section 230 case, Barrett v. Rosenthal today. Eric Goldman has a good summary of the case and links to key briefs and opinions at his Technology and Marketing Law blog. EFF + ACLU's amicus brief is here. I think there may be quite a gaggle of lawyers and press at this hearing, so we'll see what the turn out is like. I'll update this post with my take on the hearing later today...
{UPDATE 9/6/06} So, the hearing yesterday was absolutely interesting. Ann Brick, of the ACLU, and Mark Goldowitz of the California Anti-SLAPP Project argued for the defendant, Ms. Rosenthal, who is alleged to have defamed the plaintiff because she posted an email she received to an internet bulletin board that she controlled. The only change she made to the email she had received was to break it into three segments for posting. The plaintiff’s counsel was Christopher Grell, an attorney from Oakland.
Eric Goldman has a complete and detailed summary of the argument on his blog. Here, rather than recap, I just want to focus on a couple points that I thought were salient. These are not in any particular order, though they generally follow the chronology of how the argument went.
First, Brick began the argument with some background about the passage of section 230 and the 2002 follow up legislation (the "Dot Kids" act). After a question from Chief Justice George about what the definition of “user†was, Justice Moreno jumped in with a question about statutory construction. He wanted to know whether it was proper for the Court to consider the congressional intent of a later statute (the Dot Kids act from 2002) when interpreting the original enactment (the Communication Decency Act from 1996). Brick answered yes for two reasons: first, because one-half of the congressional committee was the same at the time of the second legislation, and, second, because the later enactment was like a “reenactment†of the original statute. By reenacting the same legislation, Congress, in other words, was ratifying what the courts had done prior to 2002. This seems to make intuitive sense to me. If Congress is going to take the time to revisit a statute it passed just 6 years earlier (and the CDA had undergone some serious Court battles in those intervening 6 years), it makes sense that it would have revisited the section 230 immunity provisions if there were problems with how the Courts had handled those sections to date. I have not read the congressional record for the 2002 Dot Kids act, but since the plaintiff has pointed to nothing in the record that is contrary to this reading or use of the later statute, I would imagine that Congress in essence blessed the prior 1996 enactment. It sounded to me like the Court was leaning in that direction, but wanted comment on whether this is a proper way to go back and consider congressional intent whenever the Court is considering a statute generally.Second, much of the argument centered on where a line should be drawn to transform someone from a “provider†or “user†to an “information content provider†under the statute. In other words, when does an editor move from being a “provider†or “user†who is immunized to a “content provider†who is not? Responding to a question from Justice Chin, Brick agreed that a provider/user could become a content provider when the provider/user makes a "material substantive contribution to the information that is ultimately published." (This test comes from a NJ court in the Donato case.) The Justices offered several hypotheticals down this line of questioning, coming back to it a couple times during the entire oral argument. For example, Baxter asked Brick if defamatory material is added to a post, can the person who adds it be an “information content provider� And Justice Moreno asked what should happen if the editor takes an article that includes both defamatory and non-defamatory content, and deletes out the non-defamatory content, leaving only the defamatory content in, and then republishes it. Is that actionable under section 230, Moreno asked? Brick said it is not actionable. Then George jumped in asking whether knowledge or intent should matter at all? Brick argued that the publisher’s degree of knowledge is irrelevant and made two useful points on this front: first, congress legislates from the center, not necessarily to address these extreme cases; and second, requiring knowledge would simply make the smart publisher game the system by burying its head in the sand so that it could not be on notice of the alleged defamation.
Then it was Goldowitz turn, and Judge Baxter continued this line of questioning by posing a hypothetical where A tells B that “I’m judgment proof, so email your defamatory message to me and I will post it.†Should A be accountable under defamation laws for this republication? Goldowitz argued that solicitation or conspiracy – clearly not the facts in this case – could cross the line in making someone who would otherwise be a “provider/user†into an “information content provider†and therefore no longer immune under section 230. In this sense, I think Goldowitz was saying that A could be considered to have been the “creator or developer of the information†under section230(c)(1), taking A out of protection of section 230. (Given that the questioning was going this broadly during the discussion, I’m suspecting that the Court may issue an opinion that is broader than just the facts of this case. The Justices were very interested in figuring out where to draw this line.)
Third, Kennard, who I suspect will be authoring the opinion, asked (and came back to this a couple times) about what would happen if this Court disagreed with the Zeran case and affirmed the 1st District Court of Appeal’s opinion in this case? Goldowitz argued that such a ruling would promote forum shopping because plaintiffs would try to take advantage of California’s special rule. He also argued that it would lead to time-consuming and expensive procedures for interactive computer services to deal with notices received from allegedly defamed individuals (this is called the “heckler’s veto†problem). Later, during the plaintiff’s argument, Justice Corrigan pushed hard on this point with plaintiff's counsel Grell in response to questioning about why there should be a different rule for on-line vs. print publishers. (Grell was arguing that the line should be the same.) Justice Corrigan said that isn’t the point here that the “internet is just different� Under the rule Grell was arguing for, she asked, wouldn’t online businesses be wise to take everything down upon any notice? Grell, argued that companies have “armies of lawyers†that can handle this problem. (Now, even though I’m a lawyer and I would stand to benefit from such reasoning, I find this to be a totally unpersuasive argument from both a law and policy perspective. It reminds me of some of the fears resulting from last year's Grokster decision which some called the full employment act for lawyers.) Moreover, when asked point blank by Justice Kennard how he would propose solving the heckler's veto problem, Grell essentially argued that the party receiving a notice would have to investigate. He admitted that merely a call to the provider/user saying something is a lie or is offensive would not be enough, but that one would have to investigate further. This lead to questions about the chilling effect of such a position, and Grell argued that the chilling effect is speculative, especially in light of the harm and damage caused by defamatory speech. In any event, on rebuttal Goldowitz made a great point that I think really answered this question perfectly. The internet is different, and the way it’s different is exactly relevant to why Congress passed section 230. Congress understood that the internet was interactive. On the internet, there’s an immediate and direct opportunity for someone to correct the record. The allegedly defamed person can join the user group, respond to the audience through the internet. This is vastly different from a print newspaper or magazine scenario. There, the reader can write in a letter to correct, and only hope that the paper prints a retraction or prints the letter. There’s no equal, immediate, and direct opportunity to correct in a newspaper like there is on the internet.
Finally, I have to just say that I was really pleased by how the en banc panel of Justices were all engaged in the Q & A. While Justices Kennard and Corrigan asked most of the questions, each and every Justice was engaged and asked at least one thoughtful question of the parties. I, like others who I spoke to after the argument, expect an opinion reversing the appellate court in this case. But I am very curious about how broad the opinion will be. We have until Monday, December 4, 2006, 10:00 a.m. to wait for this result (mark your calendars!). The opinion will be available from the California Courts website.