27 February 2007

How Lawyers Think

Instapundit points us to this blog entry claiming that this First Circuit decision "reaffirmed the broad protection this statute [the Communications Decency Act] provides to bloggers." The odd thing is that the words "blog" and "bloggers" doesn't appear anywhere in the decision. Why does the American Constitution Society think that the decision applies to bloggers?

Lycos runs the Raging Bull stock discussion board site, which, if you've never been there, is a complete and total zoo. A publicly traded company sued Lycos claiming that it was responsible, under state and federal law, for comments left there by pseudonymous commenters allegedly defaming the plaintiff's stock. Lycos successfully moved to dismiss, arguing that it was immune to suit under the Communications Decency Act. The appeals court agreed, noting that:
Section 230 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," 47 U.S.C. § 230(c)(1), and that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section," id. § 230(e)(3).
An "information content provider" is "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." 47 U.S.C. § 230(f)(3).

Why does the ACS think that Lycos is like a blogger and the posters on Raging Bull like commenters? Obviously, if one looks at the Secret Blog, Lycos is like Google, which owns Blogger, provides our blogging software and hosts the site. I am like the Raging Bull commenters (hopefully, only functionally), and thus this decision stands for the proposition that Google is not responsible for any of my nonsense. [And for the first time in months, David C. Drummond breathes easy.] But does it stand for the proposition that I am not responsible for the maunderings of the Secretians?

The answer is that it does, and it doesn't. If Google is sued in the District of Massachusetts, which is part of the First Circuit, for something I say, it can bring forward this decision and argue that it is binding precedent that the District Court is compelled to accept. But if I am sued for something you people do, I have to make a slightly different argument. I have to argue that this is a persuasive precedent that the District Court should accept. I have to look at the First Circuit's reasoning and argue (here, a pretty simple argument) that the reasons for the First Circuit's decision also apply here and that this decision indicates that, if faced with the issue of holding a blogger responsible for the actions of a commenter, the First Circuit would surely decide for the blogger.

Based on this decision, we can say with some confidence that the First Circuit, or at least these three First Circuit judges, would rule for the blogger. We cannot say with absolute certainty that it would do so. For example, the court might hold that a blogger is different from Lycos because a blogger chooses the topics to be discussed and frames the discussion. The blogger is also somewhat responsible for the tone and tenor of his comment section. Is it, therefore, unfair to hold that the blogger is, in part, the "information content provider" responsible for the offending comment. I don't think that this argument is persuasive, given the First Circuit's decision, but I can't say that it is directly contradicted by that decision. Still, I agree with the American Constitution Society. This decision reaffirms that bloggers are not legally responsible for the comments left on their blog, by close but not exact analogy.


Hey Skipper said...

Why not hold the utterer of the offending statement liable?

INAL, so pardon my simplistic take on this, but holding the blogger responsible for the utterances of a third party would make no more sense than holding the bar owner responsible for the conversations in his bar, even ones the bar owner started.

Anonymous said...

The poster could be held liable, both under state law and securities law. However, the plaintiff failed to satisfy the “pleading with particularity” requirement.

Duck said...

I imagine they can be held liable if they doctor the comments posted by others.

Susan's Husband said...


When lawyers ask "who is responsible" what they mean is "who has the most money?". Causality is irrelevant.

David said...

Anon -- Great minds think alike. I had a second part to this post, longer than the first, about the Rule 9(b) issues, which I find much more interesting. I deleted it on the apparently mistaken impression that no one else would care.