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Congress shall make no law…abridging the freedom of speech
While guessing how judges will rule on a case based solely on oral arguments is a bit like trying to fathom why women continue to vie for Flavor Flav’s love, you can sometimes figure out the direction of the wind. To that end, it looks the wind is blowing right for one case currently before the California Supreme Court. This case, Barrett v. Rosenthal, focuses on potential defamation liability of internet commenters, and it looks like the Cali Supremes are going to protect those of us who post on this here series of tubes.
The background of this case is that some guy wrote an editorial attacking two doctors and their alternative medicine practice, claiming that they used intimidation, false information, etc. Someone then posted this piece on a newsgroup, and both the author and the poster were sued by the two doctors, who claimed this was libel. The trial court threw out the lawsuit, but the appellate court reinstated one of the doctor’s claims against the internet poster on the basis that the Communications Decency Act did not provide absolute immunity. The appellate court decided there was no immunity because the doctor had sent a letter to the internet user, warning of a potential lawsuit, and so this put her on notice of potential liability.
As correctly noted by the many amici curiae (briefs by non-parties, so-called “friends of the court”), this is a preposterous standard. It would chill the hell out of free speech, “unleash[ing] a ‘heckler’s veto.’” Anyone who doesn’t like something posted on the internet could simply send a letter putting the poster on “notice,” or even to the service provider, and this could then create a burden for that person/entity to remove the intent content or risk being sued and having liability. Obviously, this would result in the immediate removal of the content in most situations, and there goes your free speech right out the bloody window.
During oral arguments, the doctor’s attorney did not receive the warmest of receptions. The California Supremes noted how the appellate court has created its own little standard that isn’t used anywhere else, even by other California appellate courts. Worse yet for the good doctor, one of the justices told his attorney that he had a “startling lack of legal authority.” Erm…yeah…I think even a doctor who dabbles in alternative medicine can tell ya’ that the prognosis here ain’t so grand.
