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
Several states are considering laws that would hold bloggers responsible for defamatory statements made on their websites, including notice-and-take-down obligations, National Journal's Beltway Blogroll reports.
Most of these attempts may be doomed to failure. The are probably preempted by Section 230 of the 1996 Telecommunications 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." It also provides that "Nothing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. 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."
Consider the most likely proposals-- notice and take down rules. These would treat defamation in much the same way that intellectual property issues are treated by section 512 of the Digital Millennium Copyright Act. Under these schemes, once the blogger is notified that content on the site posted by someone else is defamatory, the blogger has a certain number of days to remove the content or face criminal prosecution or civil liability for the injury caused by the defamation. There is a pretty good argument that such statutes would in effect treat the blogger as the publisher or speaker of the defamatory content, because they would hold the blogger responsible for the continued presence of the defamatory content on the website. If that is so, then the notice and take down provision is preempted by federal law.
Note that there is nothing wrong with holding bloggers responsible for defamatory content that they themselves produce, as long as the states' rules are consistent with the constitutional rules of New York Times v. Sullivan and later cases. Section 230 only affects state laws that try to hold a blogger liable for content posted by someone else.
I'm happy to hear that these state laws are likely preempted, but hearing about stuff like this still freaks me out. How many bloggers are going to figure out that the claims someone alleges in a take-down letter are preempted by federal law?
It's true that laws such as these are unlikely to survive review. It's rational be be concerned with them, though.
First, because "unlikely" and "impossible" are not the same thing. Few people thought the BCRA would stand the way it did, either.
But primarilly because the average person's life can be irreversibly blighted by even an ultimately successful experience with the legal system. Most people, and most bloggers, do not have the deep pockets to face the prospect of going to court, even in a cause where they're virtually certain to prevail, with anything less than dread.
Lost wages, legal costs, all uncompensated in almost every winning defense, and all sufficent to blight for years the life of the average person. The legal system scarcely ever even attempts to make people whole after finding them innocent.
And so, even laws we know can not stand review must be treated like live grenades. Because even winning in court can ruin the average person's life.
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