Of all the bad ideas to come out of that state lately, the California Supreme Court decision in Barrett v. Rosenthal has to count among the worst. Lots of people in the blogosphere are hailing it as a victory for free speech. Let me be very clear in stating that it is no such thing. The case revolved around a woman (Rosenthal) who reposted a defamatory screed written by someone else (Bolen) about a pair of doctors (Barrett and Polevoy). The court held that, according to 47 U.S.C. § 230, Rosenthal could not be held liable for the content written by Bolen, even though she had taken positive action to give it broader distribution. One aspect of the case had to do with a legal distinction between “publishers” who exercise some control over content and can therefore be expected to know a priori whether it’s defamatory, vs. “distributors” (e.g. bookstores) who cannot be expected to have such knowledge unless/until the defamatory nature of specific material is brought to their attention. In general, blogs and forums and such are considered distributors rather than publishers, and the fact that Rosenthal published Bolen’s letter unchanged further strengthened her case. The next issue was whether a distributor could be held liable for third-party content after its defamatory nature had been pointed out, or whether §230 provides immunity even then. A lower court had held that such liability does exist, but the CSC disagreed. According to this decision, continuing to publish defamatory material, even knowing it’s defamatory, incurs no liability. Worse, that immunity has already been used (by AOL, based on a prior and similar case) to resist even identifying who the real author is. In other words, just saying that somebody else wrote something is now an airtight defense against defamation charges, no matter how justified those charges might be.

This issue is particularly relevant to me right now, because it just so happens that I have recently become the target of a defamation campaign. So far I know of posts by three personae (probably only one actual person) on two sites, making all sorts of vile accusations against me and in one case against my wife as well. There is not a single grain of truth to any of these accusations, which are not even self-consistent, and they have all been made by cowards hiding behind pseudonyms. So, what can I do? The proprietors of the two sites – ProBoards and Squidoo – don’t seem to care that they are enablers of defamation and harassment. I guess being used as a legal shield by the worst kind of human scum isn’t a big deal to them, so long as there’s a profit to be made from user-provided content and no legal liability for the nature of the content from which they profit. Hosting smears is probably good business. This seems to be a concern that the CSC felt, but about which they considered themselves powerless to do anything.

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.

Never mind that the original source cannot practically be discovered, I guess. Quoting an earlier decision, they also had this to say.

The court noted that another important purpose of section 230 was “to
encourage service providers to self-regulate the dissemination of offensive
material over their services.”

Never mind, either, that providers seem uninterested (at best) in doing any such thing. Protections of free speech have never been construed as applying to abuses such as fraud and libel. If you provide an avenue for those things, you become responsible either for the content itself or for identifying its origin (so far as is possible). To shirk both kinds of responsibility is morally unacceptable. To all those who think this decision is a victory for free speech, I have a question: what about my right to express myself and make statements that I have every reason to believe are true, without becoming the target of coordinated harassment? Spurious defamation lawsuits are a problem. Initiating a race to see who can spread the most vicious slander, without any accountability, is not a solution to that problem. Maybe the CSC upheld the law, but if it denies people like me any relief then it’s a bad law. I challenge anyone to say honestly that they’d still feel it’s a good decision if they were in my shoes.

Ironically, if the not-so-good folks at ProBoards or Squidoo object to what is written here, they’re out of luck too. Somebody else wrote this and I’m merely reposting it, so they can just go swallow some razor blades.