"The message to website operators is clear: If you don’t encourage illegal content, or design your website to require users to input illegal content, you will be immune," the 9th Circuit Court held in the Roommates.com case.
The erosion of the immunity provisions for interactive service providers picks up some serious momentum as the Courts now begin picking apart the broad immunity interpretation taken by free speech advocates. When the immunity for the posting by third parties was passed as part of revisions to the Communications Decency Act you could see problems on the horizon. Bloggers, website owners, and investors, all buttressed by the commentaries from liberal, free speech advocates who even today control much of the dialog online, adopted an extremely broad interpretation of the applicability of this law. At Dozier Internet Law, we view the decision as fully supported by the law, and it is noteworthy that this Court is widely viewed as the most liberal and free speech oriented Circuit Court in the country. Immunity, at least in the 9th Circuit, is no longer available to those sites "encouraging" the posting of illegal content, and this now moves squarely into question a broad range of sites making a living on encouraging the posting of defamatory information. Many of these types of sites are represented by various "public interest" groups like Public Citizen, and Dozier Internet Law's position in many of the ongoing disputes relating to immunity is once again turning out to be correct. Expect to see the ACLU, EFF and Public Citizen, their lawyers and all of their professor supporters with blogs start attacking this decision or the interpretation of it by pro-business forces.
Of course, the Court does not decide matters in a vacuum. The reality is that the immunity provisions were being abused, in a very public way, likely resulting from the very public encouragement, support, and "legal advice" coming from the liberal left wingers. Dozier Internet Law has been engaged in an ongoing debate about abusive sites, and you can read the Dozier Internet Law letter and related comments to Public Citizen to understand more fully how the immunity law has been abused with the support of free speech lawyers.
This decision, coming on the heels of the setback in Congress for bloggers and discussed in the Dozier Internet Law Blog last week, is representative of the movement of the pendulum back to sanity. We saw this coming. I blogged on this months ago. If the free speech public interest groups could have made an objective assessment of the environment and understood the consequences of emboldening the blogosphere into more and more egregious misconduct, the Court and Congress may not be reacting to curb the lawlessness as aggressively. These groups have never been good at objectivity; but they do excel at overstatement fueled by a fanaticism towards expanding individual rights and restricting the protections available to businesses. While other industries, when faced with an obvious and growing problem with its denizens, would be exploring "self regulation" to avoid legislative and judicial activism, these "free speechers" have encouraged attacks. Dozier Internet Law Scofflaw Bloggers describes some of the scofflaws that comprise the constituency of these groups.
So, as we move forward, and the immunity doctrine continues to erode, let's see if these public interest and free speech bloggers and lawyers keep telling their "mobosphere" that it is okay to encourage illegality...and participate in, encourage and facilitate defamatory attacks. We know of at least one specific instance in which a lawyer for a major free speech group directly communicated with, and encouraged, a blogger to publish defamatory statements.
Scofflaw bloggers, free speech civil libertarians, "public interest" groups, and liberal law professors espousing with self righteous indignation any restriction on the concept that "information yearns to be free" will continue to suffer these setbacks. And one has to wonder how this could have been avoided by the thoughtful and measured treatment of the issue. Would we be seeing this movement by the courts, the executive branch in New Jersey, and Congress if the free speech interests were encouraging self policing, honesty and integrity instead of actively encouraging and, indeed, promoting the problem?
On a final note, there is no immunity law in the UK, and jurisdiction for the publication of comments here in the US may be asserted there. A six figure verdict was just entered for a "mobosphere" attack. Let's see what these free speech groups have to say about exporting their notions and concepts to the rest of the world so that their constituents are protected. A full retreat is in the offing, assuming that these revisionists to our First Amendment rights can see more storm clouds on the horizon blowing in from the UK. Huge and unlikely assumption...I'm afraid.