Thursday, September 14, 2006


Defamation -- or libel -- was a crime at English and, later, American common law.

The justification for making it a crime was that it tended to cause a "breach of the peace" -- which originally meant that the person defamed and the one who made the defamatory statement might get into a duel.

Later, it seemed to mean merely that they might fight or otherwise engage in disruptive behavior.

In 1961, the drafters of the Model Penal Code -- which is the template for criminal law in this country -- decided defamation should not be criminalized. They said it was the most difficult decision they faced in updating and streamlining American criminal law. Their primary reason for not criminalizing defamation is that it was not necessary because anyone injured by defamation could file a civil suit; if the claim was valid, the plaintiff could recover damages, which would be enough to make up for the "harm" caused by the defamation.

The drafters of the Model Penal Code made this decision long before there was an Internet, in a world in which defamation was "published," if at all, by deep-pocket entities: newspapers, magazines, television stations, radio stations and, sometimes, movies. In that world, these mass-media outlets had an incentive to vet -- to filter -- what they published in order to avoid being held civilly liable for defamation.

It's now 45 years later and "publication" has become much more democratic. With the Internet, we can "publish" whatever we want (except for child pornography and a few other outlawed items). This, I think, calls into question the assumption the drafters of the Model Penal Code made in not criminalizing libel.

Since we do not have to rely on a mass-media outlet to "publish" material, the filter editors at newspapers, magazines, TV and radio stations provided is gone. And so is the likelihood that an injured party can recover damages -- most people who post material online are what we in the law call "judgment-proof." That is, you may be able to get a $1,000,000 (or $1,000,000,000) damage award against them, but it's functionally meaningless. They will never be able to pay up.

Maybe I should use a case to illustrate what I mean: A few years ago, Daniel Curzon-Brown, an reportedly an “openly gay” professor at City College in San Francisco, sued Ryan Lathouwers, founder and webmaster of Teacher Review, a site that posted “anonymous comments about . . . faculty members.” Curzon-Brown sued for defamation after he was the subject of “postings that use[d] the word `faggot’ frequently, and allege[d] that he raped and molested students in exchange for better grades.” One posting claimed he had sex with a student in the classroom; another accused him of killing a student. A year later, Curzon-Brown agreed to dismiss the suit and to pay the American Civil Liberties Union [ACLU] $10,000 in attorneys’ fees; the ACLU represented Lathouwers, who could not afford private counsel. According to news stories, had Curzon-Brown not agreed to dismiss, the ACLU would have moved for dismissal on the grounds that Lathouwers was statutorily immune from suit under the Communications Decency Act of 1996, and would have sought $100,000 in attorneys’ fees.

The Communications Decency Act “overrides the traditional treatment of publishers. . . . ‘such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing . . . obscene or defamatory material written or prepared by others.’” Concerned about lawsuits inhibiting free speech online, Congress added Section 230(c)(1) to title 47 of the U.S. Code. It provides that “[n]o 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.”

The effect of this provision is to immunize those who, like Lathouwers, post content that is provided by another, such as the individuals who submitted the postings about Curzon-Brown. At least one court has found that the immunity applies even though the operator of the site “exercises some editorial control over the anonymous postings.” A case argued a week ago before the California Supreme Court asks the court to find that the immunity conferred by this section does not apply, in least when certain conditions are met. Reports of the oral arguments in the case suggest, though, that this court will not inclined to do so (as, I would submit, it cannot under the federal statute).

The amount and variety of material that is posted online continues to generate efforts to hold someone civilly liable for what the object of a posting believes is false (maybe maliciously false) information. Todd Hollis, for example, is a lawyer in Pittsburgh. He is suing after three anonymous women posted distinctly unflattering comments about his allged behavior in his relationships with them. The site operator, of course, is relying on the provision quoted above -- the CDA section that immunizes the operator of a website, like, which merely posts comments published by others.

I could give a number of other examples, some involving respectable websites, others involving more suspect conduct (like a man's pretending to be his former boss and posting an ad in her name -- using her home address, phone number and email address -- on a site where bored wives seek "sexual adventure" with other men). There's really no point, though, because the issues are exactly the same: Someone claims to have been defamed by what was posted online and wants redress (revenge). They can sue the poster (if they can identify him or her, a problem Todd Hollis apparently has in his case), but he or she probably won't have enough money to pay the plaintiff's attorney fees. And they can't sue the site operator.

So what disincentive do we have to keep people from defaming others online? It doesn't seem we really have one, at least not unless the poster (i) identifies himself or herself, (ii) is in the same jurisdiction as the victim (which makes suing a much more viable option) and (iii) has enough money to pay a substantial damage award (or at least pay the plaintiff's attorney's fees if he/she wins).This is leading some to call for re-criminalizing defamation. If we were to do that, we would have to be very careful in how we defined criminal online defamation, because of the First Amendment, if nothing else.

Another factor the drafters of the Model Penal Code cited in not criminalizing libel is that defamation -- most of it, anyway -- inflicts a low-level of "harm." They specifically said that the use of the criminal sanction would not be appropriate for those who merely spread "gossip" and rumors. Maybe that factor still applies -- maybe we just have to toughen up and deal with having things that were said behind our backs broadcast to the world . . . . Or maybe not . . . ?

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