Cal. Justices Show No Impulse to Buck Tide on CDA Sec. 230 Immunity Online

A reversal would put the state high court in line with the great weight of judicial rulings -- including by 2 other Cal. intermediate appeals courts and all federal courts that have considered the question -- which give ISPs, website operators and users broad immunity to post others’ content, justices said. No justices suggested in their questions or comments during the argument that they were inclined to uphold the intermediate appeals court ruling allowing liability when posters know they are publishing defamatory material. But judges’ remarks don’t always indicate how they're leaning, and they're free to change their minds.

Justice Ming Chin said the attorney for respondent Stephen Barrett had offered “a startling lack of published authority” for his position supporting the appeals court ruling. Justice Joyce Kennard solicited, and then echoed, an argument from appellant Ilena Rosenthal that affirming the appeals decision “would encourage forum shopping,” prompting plaintiffs to file in Cal. to gain the benefit of its favorable interpretation. “The court of appeal ruling” in this case “seems to stand completely on its own,” Kennard said. Justice Kathryn Werdegar challenged the argument by Barrett’s attorney, Christopher Grell, that aggrieved plaintiffs would be shut out by a broad interpretation of Sec. 230. They can always sue the authors of defamatory material and they can publish responses online, she said. Grell’s enthusiasm overcame his etiquette when he interrupted Kennard a number of times.

Kennard and Justice Carol Corrigan expressed deep concern about a “heckler’s veto” that would allow those who dislike a piece of Internet content to get it pulled down simply by complaining to liability-averse website operators. Grell said the risk was no different from operators in other media. “Isn’t the whole point here that the Internet is different?” Corrigan replied. Playing to the appellant’s position, Corrigan asked Goldowitz whether Cal.’s great importance would mean its interpretation would affect far- flung Internet players. He said that would be a risk of a decision upholding the appeals court.

“The law of defamation as far as the Internet is concerned will be obliterated” except for originators’ liability, if the court reverses the appeals decision, Grell said. He raised the specter of a “We Hate Judges” website publishing home addresses and otherwise invading judges’ privacy -- all with impunity. Grell argued that the justices must weigh the constitutional right to court redress against freedom of expression. Sec. 230, consistent with the CDA’s name, literally provides immunity only for removal of offensive material, he said.

“The Internet has grown,” Grell said: “It is no longer at its infancy stage as it was when the statue was passed.” Many Internet companies are in just as strong a position as older media companies to evaluate complaints before pulling content, he said. But Goldowitz emphasized that his client is in the category of small publishers with limited resources.

Justice Marvin Baxter delayed Goldowitz from launching into his prepared argument by interrupting to ask what was to stop a website operator, immune from liability under Sec. 230, from soliciting defamatory material from others. Goldowitz said solicitation or conspiracy to defame might forfeit the immunity, and in any event, the statement’s originator always would be liable. And the same defamatory ad that would be defamatory in the N.Y. Times wouldn’t be in the paper’s online edition, because of a congressional policy decision to treat the media differently, Goldowitz acknowledged under questioning.

Defendants aren’t liable even if they cut a piece to post only the defamatory parts, Ann Brick said on behalf of amicus ACLU Foundation of Northern Cal., in response to a question by Justice Carlos Moreno: “I don’t think you have crossed the line. That is what an editor traditionally does.” But they could be liable for posting material whose basic form or message they have changed, Brick conceded in response to questions. Goldowitz, however, acknowledged precedent for denying liability to someone who “took out all the exculpatory material” from a piece about a defamation plaintiff. Courts have found the editing in a number of cases insufficient to remove the immunity, he said. All that Rosenthal did to the article she published was cut it into 3 parts, Goldowitz said.

Congress’s purposes in passing Sec. 230 were to protect free expression online and remove incentives for those on the Internet not to monitor and regulate what’s said on their sites, to avoid knowledge or action that could create liability, the lawyers challenging the intermediate appeals ruling said in response to questions from Kennard. “The publisher’s degree of knowledge is irrelevant,” Brick replied to Chief Justice Ronald George: “Knowledge can be a dangerous thing to an ISP.” Without broad Sec. 230 immunity as applied by courts in other cases, “a sensible intermediary” will do “as little as possible” to oversee others’ content, to avoid liability for missing something or making a mistake, she said.