Terra Extraneus

A California Supreme Court ruling on Monday bolsters the free speech rights of bloggers. The ruling protects Internet publishers’ right to post the possibly libelous statements of others. The ruling does not exempt bloggers and other Internet publishers from liability for their own comments.

The ruling was not based on the First Amendment, but on the Communications Decency Act, which Congress could change. Indeed, in its ruling the Court seems to be calling on Congress to review that 1996 federal law in light of 21st century Internet activity.

We acknowledge that recognizing broad immunity for defamatory republications on the Internet has some troubling consequences. Until Congress chooses to revise the settled law in this area, however, plaintiffs who contend they were defamed in an Internet posting may only seek recovery from the original source of the statement.

Nevertheless, the ruling is a good one for free speech in the blogosphere. Text of the ruling can be found here: California Supreme Court ruling.

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MSNBC did some sloppy reporting of the Court’s ruling. Its headline vastly overstates the extent of the ruling: “Calif. court says bloggers can’t be sued. State’s Supreme Court said a federal law gives immunity from libel suits.”

In the report that follows, MSNBC correspondent Pete Williams reports:

She argued that because she did not write the letter herself and instead posted the work of another to her newsgroup, she was immune from suit under a section of the federal Communications Decency Act, passed by Congress in 1966. It protects both Internet service providers and their users from lawsuits.

Oops. The Communications Decency Act, the first federal law regulating Internet content, was passed in 1996, not 1966. The World Wide Web didn’t come along until 1991.

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AP news stories today declared that a federal court jury in New Jersey convicted an animal rights advocacy group and several of its individual members of inciting violence on its website against a company using animals in its experimentation and research. According to the news story, there was no proof offered by the United States, as prosecutor, of any violent conduct by any defendant, other than inciting it on their website.

In a second AP news story issued today, a school district suspended twenty middle school students for looking at a website in which a fellow student described proposed violent acts against yet another student, as well as some other inappropriate comments.

The thread in both stories was that those posting written communications on a website and those reading communications on a website might be punished. In both instances, too, the writer was punished for influencing, or causing, the behavior of the reader.

Normally, English and American common law and the resulting statutory law and judicial decisions have accepted as axiomatic that one person is not responsible for the criminal conduct, wrongful conduct, or tortuous conduct of another, absent a legal duty to moderate that conduct or a volitional conspiracy. Apparently, however, when the Internet is involved, the United States government and at least a school district in Costa Mesa, California, feel the writer is responsible.

Would the result have been the same if the Internet writers were, in fact, not writing on the Internet, but were writing on a billboard, or posting merely on a pre-Internet bulletin board made of cork, or using a mimeograph machine? The violence described or even promoted by the web writers, if as described in the news accounts, was certainly reprehensible. But do we dare make it illegal or criminal?

Historically, the crime of sedition was abolished by the First Amendment. The First Amendment was enacted because the common law did not go far enough in guaranteeing freedom of expression. At common law, profanity, obscenity and gross libels were illegal because they were immediately harmful to the individual. The First Amendment was supposed to preserve an equally serious societal need: that truth was more important than silence, and that identification of truth was too important and fragile to leave to unilateral government definition.

The Internet will terrify many people with its reach and scope. The right to freedom of expression, if it means anything in the 21st century, will have to stand for the proposition that because truth is more important than silence, the latest and greatest platform for expression, access to the Internet, and even abuse of the Internet will have to be protected. It is unnecessary to protect the Internet at all costs, of course. But it is necessary to protect the system of freedom of expression on the Internet as vigorously as it would be protected anywhere else.

The government and the courts should not react to the Internet like primitives reacting to a flashlight. Criminalizing speech, or Internet communication, that could have been dealt with by a restraining order while court review or appeals progressed, is a naked abuse of power that does violence to the First Amendment. For middle school students, running a few laps, writing lines, or even an apology, would probably be better than suspension for looking at a website.

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