an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The blogosphere has been abuzz over the cease and desist letter issued to Atrios by Jeffrey J. Upton, an attorney purporting to represent Donald Luskin, an NRO Online Contributor:
You recently linked to Mr. Luskin's October 7, 2003, posting on his website entitled "Face To Face With Evil," in which he chronicles his attendance at a lecture and book signing presented by Paul Krugman. You chose the unfortunate caption "Diary of a Stalker" for your link. More importantly, your readers, in responding to your invitation to comment, have posted numerous libelous statements regarding Mr. Luskin. Picking up on the theme you introduced, several have made false assertions that Mr. Luskin has committed the crime of stalking. Such a statement constitutes libel per se, an actionable tort subjecting both the author and the publisher to liability for both actual and punitive damages. As a result of your control over and participation in the comment section of your site, as well as the fact that Mr. Luskin has personally brought these libelous comments to your attention already, you face personal liability for their distribution. Determining your identity for the purpose of making service of process can be easily accomplished through a subpoena to Blogspot.com.
This is a nuisance suit. Unfortunately, Atrios will have to hire an attorney, but he should win easily. Despite Mr. Upton's suggestions to the contrary, Atrios is not liable for the postings in the comments section. And he has no duty to take them down. This is a consequence of section 230 of the 1996 Telecom Act. See my previous discussion on when bloggers can be sued for libel:
What the 9th Circuit held (and what the 4th Circuit also held before them) is that section 230 of the 1996 Telecom Act protects people who run websites from being sued for republishing the libels of another person. Section 230 states 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."
This does not mean that bloggers are immune from libels they themselves write. It means
that they are immune from (for example) libels published in their comments section (if they have one) because these comments are written by other people and the blogger is merely providing a space for them to be published. Congress wanted to treat operators of chatrooms and other interactive computer services differently from letters to the editor columns in a local newspaper.
So if bloggers defame somebody, they can still be sued for what they say, just not for what
someone else who publishes on the blogger's site says.
Of course, Luskin could sue Atrios for Atrios's own comments, for example, that Atrios suggested that Luskin was a stalker. But read in context, Atrios' post is (a) not an allegation of actual criminal behavior, and (b) is a protected statement of satire and opinion. He is making fun of Luskin's own comparison of himself as someone who stalks Paul Krugman. Luskin's argument that Atrios has libeled him shouldn't survive a motion for summary judgment. Of course, the real problem is that getting to that point will cost Atrios money to defend himself.
Luskin should be ashamed of himself for having any part in sending this letter. It's a disservice to the blogging community, and inconsistent with respect for freedom of expression.
What's most upsetting is that he is employing a frivolous lawsuit in order to punish someone for exercising their First Amendment rights and that he is piggybacking an abusive subpoena to expose Atrios' identity. So he's not only engaged in frivolous litigation (aren't conservatives against frivolous lawsuits?), but also an abuse of the discovery process (aren't conservatives opposed to the dirty tricks of trial lawyers?). I guess Luskin is only opposed to frivolous lawsuits by other people, and dirty tricks by lawyers who are not representing him.
That's a protected statement of opinion too, by the way.
The Washington Post reports that Iraq did not even have an active program to construct nuclear weapons:
According to records made available to The Washington Post and interviews with arms investigators from the United States, Britain and Australia, it did not require a comprehensive survey to find the central assertions of the Bush administration's prewar nuclear case to be insubstantial or untrue. Although Hussein did not relinquish his nuclear ambitions or technical records, investigators said, it is now clear he had no active program to build a weapon, produce its key materials or obtain the technology he needed for either.