"'I'll sue you for defamation!' is the toothless wonder of the legal world," declares a confident and defiant HuffPo blogger. But is it really toothless? ... Background: Sarah Palin's attorney suggests that an Alaskan blogger has been defaming the Governor, and is threatening to sue not only the blogger but also "those who republish the defamation, such as Huffington Post , MSNBC, the New York Times and the Washington Post ." I would have thought that this threat was decidedly non-toothless--that if a blogger really was publishing something defamatory about Palin (or anyone**), and if HuffPo or the NYT published the blog on their web sites, they'd be on the hook for defamation just as if they'd published an article by one of their own reporters.
That was before I learned about Section 230 of the Communications Decency Act of 1996. It's imprecisely worded , but if it really does immunize HuffPo and Gawker and even Slate or the NYT , etc --by requiring any libel plaintiff to recover damages from the actual original blogger, as some cases suggest --that would change a lot from what I thought I learned in law school. The changes go way beyond defanging Palin. I'm obviously way behind thinking about this, but off the top of my head, here are some of the possible ramifications:
a) It would be great for blogging, because it would mean lawyers for big journalistic outfits (like the Washington Post , which owns Slate ) won't require blogs to be edited . In fact, they won't want the blogs to be edited, lest that be interpreted as implicating the big journalistic outlet itself in any libel. "Curation" is for co-defendants!
b) Most bloggers themselves are probably poor enough to be judgment-proof, although some HuffPo bloggers might have deeper pockets than HuffPo itself;
c) It means unverified undernews would now have a prominent, semi-official, de facto-sanctioned home , namely judgment-proof blogs on big news sites;
d) Are they really going to apply this to organizations that pay freelance bloggers for their submissions? If not, the statute might protect HuffPo (which usually doesn't pay bloggers) but not Slate (which pays me). But does this paid/unpaid line really make sense, since readers don't necessarily know who's paying what to whom when evaluating a blog's credibility? Is HuffPo all that different from Slate ? And I don't want to give my editors another reason to cut my salary to zero. ...
e) What about repeating these protected-by Sec. 230-but-unverified blog allegations in the core MSM? If actual reporters working for actual traditional news outfits can then relay 'the fact that Judgment-Proof Blog X is reporting Y rumor'-- despite the traditional rules saying news outfits couldn't do this , but hey, why cut them out of the new vibrant "diversity of political discourse" ?--we've really entered a new world. Not that there's necessarily anything wrong with it . ...
But I find it difficult to believe that the broad web-site-protecting reading of Section 230 will hold up--it's a mere statute, remember. Congress can amend it. Is Congress really going to let average citizens get libeled by blogs on the New York Times web site without being able to sue the New York Times ? ... On its face, the statutory provision, which protects "interactive computer services and other interactive media," appears intended more to protect outfits like American Online than traditional newspapers that host blogs or even new hybrid journalist/blogging/activist outfits like HuffPo . When Congress sees how that phrase has been interpreted, it may (as they say) revisit the issue. ...
**--Sure, public figures like Palin would have to show "actual malice," as defined in New York Times v. Sullivan . But that's not always impossible to do. ... 2:21 A.M.
The "Savonarola of Sullivan's Island": Was he in love with the Latina hottie or with the "unashamedly navel-gazing culture of Argentina itself?" ... 12:11 A.M.