Congressional subcommittee holds hearing on federal anti-SLAPP bill

While the Democratic sit-in protesting gun control garnered the nation’s attention this week, a less publicized piece of legislation gained traction in the U.S. House of Representatives Judiciary Committee. The Committee’s Subcommittee on the Constitution and Civil Justice heard testimony Wednesday on the SPEAK FREE Act (H.R. 2304), a federal anti-SLAPP bill. The bill extends speech protections for defendants subject to SLAPPs (Strategic Lawsuits Against Public Participation) to federal court and to states without anti-SLAPP laws.

Currently, 28 states, the District of Columbia, and the territory of Guam have enacted anti-SLAPP statutes with varying degrees of protection. SLAPPs are brought against those exercising their speech rights under the First Amendment and on matters of public concern. Often the goal of SLAPPs is to silence critics by subjecting them to costly and burdensome litigation. Anti-SLAPP laws grant defendants of these suits mechanisms in which to quickly dismiss claims, stay discovery, and receive attorney’s fees. These laws deter litigants from filing speech-chilling lawsuits.

The SPEAK FREE Act, introduced by Rep. Blake Farenthold (R-Tx) in May 2015, permits anti-SLAPP protections to apply in federal court and in states lacking an anti-SLAPP law.

Wednesday’s hearing (video here) included testimony from Bruce D. Brown, Executive Director of the Reporters Committee for Freedom of the Press; Aaron Schur, Senior Director of Litigation at Yelp, Inc.; Laura Prather, Partner at Haynes and Boone, LLP, and board member of the Public Participation Project; and Alexander Reinert, Professor of Law at Cardozo School of Law.

For more on the hearing, visit the Reporters Committee’s website here.

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U.S. Supreme Court denies review in right of publicity and anti-SLAPP cases

The odds are never in your favor when seeking U.S. Supreme Court review. Out of the 7,000 – 8,000 petitions for a writ of certiorari received each term, the Court grants and hears oral argument in around 80 cases. Thus, this morning’s news that the Court denied review in two cases of media law interest came at no surprise.

The High Court denied cert in EA v. Davis and Mebo International v. Yamanaka, leaving open questions of right of publicity, the First Amendment, and the application of state anti-SLAPP statutes in federal court.

EA v. Davis asked the Court whether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work. Former NFL player Michael Davis sued Electronic Arts, the producer of Madden NFL, for violations of his right of publicity. EA filed a motion to strike under California anti-SLAPP statute asserting Davis’ claim was barred under the First Amendment. The Court’s denial of cert left in place the Ninth Circuit’s affirmation of the district court’s denial of EA’s motion to strike.

Mebo International v. Yamanaka asked the Court whether state anti-SLAPP statutes are properly applied in federal diversity cases, or whether doing so runs afoul of the Erie doctrine. The Court’s denial cert left in place the Ninth Circuit’s ruling that the California anti-SLAPP statute does apply in federal court.

 

Remembering Justice Antonin Scalia’s First Amendment legacy: Flags, crosses, and video games

The passing of U.S. Supreme Court Justice Antonin Scalia shocked the country Saturday. The conservative titan served on the bench of the nation’s highest court since 1986, earning enthusiastic esteem from the right wing and vigorous vitriol from the left. Quoting my constitutional law professor Paul R. Baier, Scalia “roared from the bench” like a “lion” with stark opinions and scathing dissents rooted in originalism.

Scalia’s approach to the law resulted in a mixed First Amendment legacy. Some of the Justice’s beliefs stunted the growth of speech freedoms, while others expanded speech rights into the 21st century.

For example, Scalia opposed cameras in the Supreme Court, refusing to allow the public to peek inside the most secretive branch of our government.[1] Scalia believed the First Amendment’s Establishment Clause permits government endorsement of religion and dismissed the principle of neutrality.[2]  Scalia cast the decisive vote in carving out an exception for First Amendment rights of students in Hazelwood[3] and voted against student speech rights again in Morse v. Frederick.[4] Scalia repudiated the actual malice standard for defamation of public officials from the seminal case New York Times Co. v. Sullivan.[5] Although not squarely a speech issue, Scalia stood fervent against civil liberties of the LGBT+ community.[6]

However, Scalia’s record contained moments of victory for First Amendment freedoms. In reflecting on the life of one of the most memorable Justices of our lifetime, here are some notable First Amendment opinions from Scalia:

Flag-burning ban infringes First Amendment – Texas v. Johnson, 491 U.S. 397 (1989).

Although Justice Brennan penned the majority opinion, Scalia’s vote in the 5-4 majority that found Texas’ flag-burning law unconstitutional under the First Amendment was crucial during the early days of his tenure on the Court. During oral arguments, Scalia challenged the Dallas County Assistant District Attorney Kathi Alyce Drew, gaining laughter from the audience by asking about the extent to which laws should protect venerated items, such as the state flower. Scalia continued to play the role of the Court’s comedian for the remainder of his Supreme Court stint.

Full opinion here.

Cross-burning ordinance unconstitutional – R.A.V. v. St. Paul, 505 U.S. 377 (1992).

Three years later, the Court confronted another heated First Amendment case. In R.A.V., the Court considered the constitutionality of a St. Paul (Minnesota) ordinance prohibiting the placing of a “symbol, object, appellation, characterization or graffiti” (including burning a cross) when “one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender . . . .” The defendant was charged under the law after making a cross out of broken chair legs and burning the cross inside the fenced yard of a family across the street. Scalia determined the ordinance was facially unconstitutional as a content-based and viewpoint-based restriction on speech.

“Displays containing abusive invective, no matter how vicious or severe, are permissible unless they are addressed to one of the specified disfavored topics. . . . The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects.”[7]

“Let there be no mistake about our belief that burning a cross in someone’s front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.”[8]

Full opinion here.

Violent video games protected under First Amendment – Brown v. Entertainment Merchants Association, 131 S. Ct. 2729 (2011).

Using his familiar historical approach to the law, Scalia led the Supreme Court in shielding video games under the First Amendment. In striking down a California law prohibiting sale or rental of “violent video games” to minors, the originalist found the law violated the First Amendment because:

“Like protected books, plays, and movies that preceded them, video games communicate ideas—and even social message—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.”[9]

Full opinion here.

Honorable mention: Thermal-imaging is a “search” under the Fourth Amendment – Kyllo v. United States, 533 U.S. 27 (2001).

Although Kyllo is not a First Amendment case, Scalia protected another crucial civil liberty—privacy—in his majority, 5-4, opinion. In this case, the police used a thermal-imaging device to detect marijuana in the defendant’s home. Armed with this new information, the police obtained a search warrant for the defendant’s residence. Relying on the principle that the Fourth Amendment draws “a firm line at the entrance to the house,” Scalia wrote:

“Where, as here, the Government uses a device not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.”[10]

Full opinion here.

Scalia’s legacy will survive in both jurisprudence and reputation. His impassioned voice will be heard for generations through oral argument recordings. But the dynamics of the Supreme Court chambers will be forever changed without the roar of the lion called Antonin Scalia.

rest-in-peac-1238181-1279x1897 (1)

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[1] See Josh Gerstein, Politico, Scalia: Cameras in Supreme Court would ‘mis-educate’ Americans, July 26, 2012; Jamie Schuman, Reporters Committee for Freedom of the Press, Holding out against cameras at the high court, Spring 2014.

[2] See Americans United for Separation of Church and State, Government’s God: Scalia and the Fraud of ‘Ceremonial Deism,’ February 2016; Rob Boston, Americans United for Separation of Church and State, There He Goes Again: Justice Scalia Continues Attacking Religious Neutrality, Jan. 4, 2016.

[3] Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) (holding that school officials can censor a high school sponsored newspaper when there is a reasonable educational justification and the censorship was viewpoint neutral)

[4] Morse v. Frederick, 551 U.S. 393 (2007) (ruling that school officials can prohibit students from displaying certain messages at a school sanctioned event).

[5] New York Times Co. v. Sullivan, 376 U.S. 254 (1964); See Erik Wemple, The Washington Post, Antonin Scalia hates ‘NYT v. Sullivan’, Dec. 4, 2012.

[6] See, e.g.,  Obergefell v. Hodges , 576 U.S. [  ] (2015) (J. Scalia, dissenting) (disagreeing with the majority’s finding that the Fourteenth Amendment requires a state to license same-sex marriages), United States v. Windsor, 570 U.S. [  ] (2015) (J. Scalia, dissenting), Lawrence v. Texas, 539 U.S. 558 (2003) (J. Scalia, dissenting), Romer v. Evans, 517 U.S. 620 (1996) (J. Scalia, dissenting) (comparing homosexuals to murderers, polygamists, and people who beat animals).

[7] Id. at 391.

[8] Id. at 396.

[9] Id. at 2733

[10] Id. at 40.

Journalists’ ability to protect sources, newsgathering materials receives favorable outcome in California federal court

A journalist is only as good as his word. When a source considers sharing information with a journalist, the source often assesses its faith in the reporter. Trust becomes the currency exchanged between the two parties.

The reporter’s privilege — a journalist’s right to refuse to comply with subpoenas seeking documents or testimony from their sources or newsgathering materials — is an important tool used by those in the media to secure the trust of their sources. However, the reporter’s privilege is not absolute.

The reporter’s privilege is a strong but also fragile tool to ensure trust with sources. The privilege, emanating from common law, the First Amendment, and state law in many jurisdictions, can be waived if a journalist shares some information with a party in a lawsuit.

What constitutes a waiver and what a waiver actually means has not been ironed out in most states. But a California federal court recently found that waiver of the privilege did not occur even though the journalist complied with a portion of the subpoena. Although this is only one decision from one lower court in one state, it is a welcomed sight for journalists and media lawyers.

For more, please read my article on the Reporters Committee for Freedom of the Press’ website here.

Fall issue of RCFP’s The News Media and The Law explores newsworthiness in privacy cases, federal legislation benefitting the press

The Reporters Committee for Freedom of the Press (RCFP) recently released its latest edition of The News Media and The Law, the quarterly publication providing legal news and guidance for members of the news media.

In this Fall 2015 edition, the RCFP attorneys tackled numerous issues facing the press, including access to public records, classified records, disclosure of juror names, and drones, among others.

The magazine featured my first two articles published since joining RCFP in September.

One of my articles, promoted on the cover as Privacy vs. News: How do courts decide?, uses the upcoming privacy trial involving the publication of former professional wrestler Hulk Hogan’s sex tape to explore how courts determine what is considered newsworthy.

If a court determines information is newsworthy – or of a “legitimate public concern” – a privacy claim of publication of private facts will be barred. Thus, defining newsworthiness is critical to the result in privacy cases. But what does a court consider when assessing newsworthiness? This question and more is answered in the article, Courts wrestle with defining newsworthiness in privacy cases.

My second article focused on two recent bills before Congress that would benefit journalists and enhance free speech. In the article Camera access, anti-SLAPP laws introduced in Congress, I expanded upon Congressional efforts to permit cameras and other forms of recording into the U.S. Supreme Court with the Eyes on the Court Act.

I then discussed the advantages of the most recent federal anti-SLAPP bill, the SPEAK FREE Act of 2015. This latest attempt to provide the uniform ability to defend against frivolous claims sought to suppress speech has gained support from both sides of the aisle as well as from technology companies and legal scholars.

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Stephen v. Stephen: Rookie Late Show host Stephen Colbert presses Justice Stephen Breyer on cameras in the Supreme Court

Stephen Colbert has seamlessly taken the baton from longtime host David Letterman in his first days on the Late Show. In the infancy of his late night comedy career, Colbert has transitioned from a charactercher on the The Daily Show to a more serious interviewer on the late night stage.

Colbert hosted a mix of expected guests in his first seven shows, including actor George Clooney, Republican presidential nominee Jeb Bush, Vice President Joe Biden, tennis star Novak Djokovic, and author Stephen King.

However, on Monday night, Colbert’s show focused on a more unorthodox guest on the late night stage—Supreme Court Justice Stephen Breyer.

As Breyer waltzed onto the Late Show stage, Colbert graciously told Breyer, “Thanks for being here. You’re really classing up the joint.”

The Harvard Law School graduate and 20-year Supreme Court veteran promoted his new book, The Court and the World: American Law and the New Global RealitiesThe book argues for a more international view of the law in the United States beyond our borders. Adam Liptak’s (@adamliptak) piece in The New York Times expounds on Breyer’s unique worldly point of view.

The highlight of Breyer’s appearance began at 3:13 of the below video when Colbert pressed Breyer about cameras and access to the highest court in the country. Unlike the highest courts in Canada, the United Kingdom, and Australia and many lower courts in the United States, the most influential court in America refuses to allow the public to peer inside of the hallowed halls and get a glimpse of democracy at work.

This is a fight I intend to pursue throughout my career because the American people deserve access to the judiciary. They deserve to see and hear their government at work, gather all the facts, and then have an informed debate about the critical issues that come before the Court.

In creating a wall between the public and the protective Justices, speech on the important issues argued in the Supreme Court is stifled and suppressed. This is not how the American judiciary should function. Access and transparency should always be the answer.

The dialogue regarding cameras in the Supreme Court occurs at 3:13 and a transcript of the back-and-forth is below.

Colbert: The Supreme Court is about the last place in America where I couldn’t bring my camera crew in to shoot what the government is doing, to get video of what the government is doing. Why can’t we watch you if the Supreme Court repeatedly rules that we can be watched by the government?

Breyer: And there are very good arguments in favor of what you are just saying.

Colbert: I just made one. I just made a very good one. If you had cameras in the courtroom, you could just put your book on the edge of your desk, and you wouldn’t have to be here right now shaking your lawmaker (laughter).

Breyer: Right there in what you just said you have given part of the answer. I’m in a job where we where black robes because in part we are speaking for the law. Everybody knows we are human being.

Colbert: In part to make you spooky (laughter).

Breyer: That’s a thought. But the country doesn’t want to know the Constitution according to Breyer or according to O’Connor. They want to know what the answer to this thing is. That’s true of the process. If you had cameras right there in the process of oral argument; if you had that, we don’t know what the reaction exactly would be among the lawyers. The oral argument is about five percent of the basis for deciding a case. It’s almost all in writing. And the toughest part about this question you posed is this: When I’m deciding a case, I’m deciding it for 315 million people who are not in that courtroom. The rule of law; the rule of interpretation; it applies to everybody. The human beings – correctly and decently – relate to people they see. And they’ll see two lawyers, and they’ll see two clients, and they’ll see two lawyers, and they’ll see two clients. Will they understand the whole story? Will they understand what we’re doing? Will there be distortion? Now, that’s the arguments against you. The argument for you is that it would be a fabulous educational process.

Colbert: And pretty entertaining sometimes too I’m guessing.

Breyer: Uh . . . no (laughter).

Colbert: I disagree. [End]

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Privacy, CDA 230, the Espionage Act, and WikiLeaks: My contributions to a global report exploring online intermediary liability

BerkmanShotWorking at the Digital Media Law Project and Cyberlaw Clinic at Havard’s Berkman Center for Internet & Society this past summer was a remarkable experience. I soaked in the beautiful summer sights of Massachusetts, learned from some of brightest minds in the country, and contributed to a number of fascinating projects. One of my main ventures from this summer at Berkman was recently published.

The Berkman Center and the Global Network of Internet and Society Research Centers released a report Feb. 18 called “Governance of Online Intermediaries: Observations from a Series of National Case Studies” (also found here). The report combines studies from various countries around the world to examine the rapidly changing landscape of online intermediary liability across the globe.

Numerous employees at the Berkman Center (including myself) collaborated to write the United States’ portion of the report. Our paper, “Online Intermediaries Case Studies Series: Intermediary Liability in the United States,” delved into various U.S. related online intermediary liability topics and case studies.

I contributed the legal landscape sections for three topics: traditional privacy liability, Sec. 230 of the Communications Decency Act (CDA), and the Espionage Act. I also authored a case study for the report, “The State as Soft Power – The Intermediaries Around WikiLeaks.” Below are the legal landscape primer sections I wrote that are contained in “Online Intermediaries Case Studies Series: Intermediary Liability in the United States.” These portions of the report are meant to summarize current United States policies regarding privacy liability for intermediaries, the protections of Sec. 230 of the Communications Decency Act, and potential claims under the Espionage Act.

Traditional Privacy Liability for Intermediaries

Privacy laws in the United States consist of a patchwork of common law torts and specific statutory enactments, overlaid with nationwide exceptions made in light of the First Amendment.[19] Intermediaries primarily concern themselves with privacy law to the extent it impacts their own businesses operations and practices – for example, how they represent their data handling practices to the public, and how they handle their own data security.

A second form of privacy liability for intermediaries stems instead from the actions taken on behalf of others, and whether the intermediary can ever be held liable for contributing (willingly or not) to those actions. The laws around such invasions of privacy can be generally clustered into two categories: those that address the unlawful gathering of information (e.g., intruding into one’s private spaces or unlawfully recording conversations), and those that address publishing private information (e.g., the “public disclosure of private facts” tort or publishing specific information proscribed by statute[20]). The First Amendment plays a role in this space by both limiting the universe of defendants for intrusion claims[21] and by substantially limiting the types of claims that can be brought regarding the disclosure of private information.[22]

With respect to information gathering, many states recognize a tort called “intrusion upon seclusion,” which punishes one who intrudes into the solitude or seclusion of another in a way that is highly offensive to a reasonable person.[23] Because the defendant’s conduct usually must be intentional for liability to attach, it is rare to see liability extend to disinterested intermediaries.[24] At least one court has found secondary liability could attach to a newspaper for running a classified ad that facilitated intrusion of another, though in that case the plaintiff pleaded that the newspaper published the ad with the intent to invade the plaintiff’s privacy.[25]

Some intrusion laws attempt to indirectly target intrusion by punishing those who later disclose or receive the information that was unlawfully acquired. But First Amendment doctrine prevents the application of such laws to those who did not actively participate in the unlawful acquisition, at least when the information is true and a matter of public concern.[26] This would seem to preclude most information intermediaries from liability for transmitting content that was unlawfully acquired by others.

Laws concerning the disclosure of private information directly can vary considerably, but most states have some form of the tort called “public disclosure of private facts,” which concerns the intentional disclosure to the public[27] of non-newsworthy information about an individual that is highly offensive to a reasonable person.[28]

Unlike defamation or intrusion, the specific mental state of defendants varies considerably between states, so the mens rea does not generally limit liability for disinterested intermediaries in the same way as other torts.[29] That said, the few cases that consider a distributor’s liability tend to impart the same requirement from defamation cases that the distributor know the information to be tortious in order to be held liable.[30] Also, information obtained from public sources are considered protected under the First Amendment,[31] and republishing content originally published widely by others does not lead to liability in most cases, as the fact that the content was published previously means that the information is no longer considered private.[32]

The traditional standards for intermediary liability in privacy are applied in a radically different manner online, in large part due to Section 230 of the Communications Decency Act, which is discussed in the following section.

[19] Daniel J. Solove & Paul M. Schwartz, Information Privacy Law 77 (3d ed. 2009).
[20] For an example of this, see 18 U.S.C. § 2710 (governing when and how a customer’s video rental history may be disclosed).
[21] See notes x–y, infra, and accompanying text.
[22] While the states that recognize a public disclosure tort include a definitional balance that precludes claims against newsworthy information, the Supreme Court has yet to directly consider a challenge to public disclosure torts in other cases. See Geoffrey R. Stone, Privacy, the First Amendment, and the Internet, in The Offensive Internet (Saul Levmore & Martha C. Nussbaum eds. 2010). For more on the history of balancing between free speech and privacy has had a complicated century of history. See Geoffrey R. Stone, Anthony Lewis, Freedom for the Thought That we Hate 59-80 (2009).
[23] Restatement (Second) Torts § 652B.
[24] See, e.g., Marich v. MGM/UA Telecomm., Inc., 113 Cal. App. 4th 415 (2003) (defining intent for California’s intrusion tort). For examples of cases where parties were liable as aiders or abettors of another’s intrusion, see David A. Elder, Privacy Torts § 2:9.
[25] Vescovo v. New Way Enters., Ltd., 60 Cal. App. 3d 582 (1976).
[26] See, e.g., Bartnicki v. Vopper, 532 U.S. 514, 526 (2001) (The First Amendment prevents a radio broadcaster from being punished for disclosing the contents of an unlawfully-intercepted communication); Smith v. Daily Mail Publ’g Co., 443 U.S. 97, 104 (1979); Food Lion, Inc. v. Capital Cities/ABC, Inc., 194 F.3d 505 (4th Cir. 1999) (refusing to escalate damages for breach of duty of loyalty based on subsequent disclosure of information); Doe v. Mills, 536 N.W.2d 824 (Mich. 1995) (knowing receipt of information unlawfully obtained does not lead to intrusion claim for the recipient). Scholars have been mindful to point out that the exact meaning and scope of the “Daily Mail principle” is not entirely clear. Janelle Allen, Assessing the First Amendment as a Defense for Wikileaks and Other Publishers of Previously Undisclosed Government Information, 46 U.S.F. L. Rev. 783, 798 (2012).
[27] This is deliberately made a wider audience than defamation, for which liability attaches when a statement is “published” to a single person. Restatement (Second) Torts § 652D cmt. a.
[28] Restatement (Second) Torts § 652D.
[29] David A. Elder, Privacy Torts § 3:7.
[30] See, e.g., Steinbuch v. Hachette Book Grp., 2009 WL 963588 at 3 (E.D. Ark. April 8, 2009); Lee v. Penthouse Int’l Ltd., 1997 WL 33384309 at 8 (C.D. Cal. March 19, 1997).
[31] See, e.g., The Florida Star v. B.J.F., 491 U.S. 524 (1989).
[32] See, e.g., Ritzmann v. Weekly World News, 614 F. Supp. 1336 (N.D. Tex. 1985); Heath v. Playboy Enters., Inc., 732 F. Supp. 1145 (S.D. Fla. 1990); but see Michaels v. Internet Ent. Grp., Inc., 5 F. Supp. 2d 823 (C.D. Cal. 1998) (disclosure of more than the ways originally revealed in first publication can give rise to claim for republication)

Section 230 of the Communications Decency Act

As noted in the preceding sections, liability for offline content distributors or hosts largely turns on whether the host knows or has reason to know that they are hosting tortious content. In the earliest days of the Internet, courts used these standards to assess liability of online intermediaries, but found that the law created a perverse result. Online intermediaries possessed the technical ability to filter or screen content in the way an offline intermediary never could, but under existing standards this meant that the intermediary would assume liability for all the content over which they had supervisory control. In the most famous case on point, this included a service that was trying specifically to curate a family friendly environment, at a time when the public was greatly concerned about the adult content on the Internet.[33] In order to “to promote the continued development of the Internet and other interactive computer services and other interactive media [and] to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services,” Congress enacted Section 230 of the Communications Decency Act.[34]

Section 230 prevents online intermediaries from being treated as the publisher of content from users of the intermediaries. By the terms of the statute, “No 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.” [35] An “interactive computer service” under Section 230 is defined as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server . . . ”[36] Online intermediaries of all sorts meet this definition, including Internet service providers, social media websites, blogging platforms, message boards, and search engines.[37] An “information content provider” in turn is defined as “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.”[38]

Section 230 covers claims of defamation, invasion of privacy, tortious interference, civil liability for criminal law violations, and general negligence claims based on third-party content,[39] but it expressly excludes federal criminal law, intellectual property law, and the federal Electronic Communications Privacy Act or any state analogues.[40] Its terms also specify that the coverage is for “another’s” content, thus not protecting statements published by the interactive computer service directly.[41] Thus, to apply Section 230’s protection, a defendant must show (1) that it is a provider or user of an interactive computer service; (2) that it is being treated as the publisher of content (though not with respect to a federal crimes, intellectual property, or communications privacy law); and (3) that the content is provided by another information content provider.

The law was designed in part to foster curation of online content, and courts have found that a wide array of actions can be taken by “interactive computer services” over third-party content are covered by Section 230. These include basic editorial functions, such as deciding whether to publish, remove, or edit content;[42] soliciting users to submit legal content;[43] paying a third party to create or submit content;[44] allowing users to respond to forms or drop-downs to submit content;[45] and keeping content online even after being notified the material is unlawful.[46] This applies to both claims rooted in defamation and those rooted in invasion of privacy.[47]

On the other hand, if the intermediary creates actionable content itself, it will be liable for that content.[48] Courts are also unlikely to find that Section 230 applies when an interactive computer service edits the content of a third party and materially altering its meaning to make it actionable;[49] requires users to submit unlawful content;[50] or if the service promises to remove material and then fails to do so.[51] When an intermediary takes these actions, it is deemed to have “developed” the content by “materially contributing to the alleged illegality of the conduct.”[52]

While stated very simply, the law upsets decades of precedent in the areas of content liability law, and radically alters the burdens on online services for claims based on user content.[53] By limiting any assumed liability for a wide range of content-based claims (and given the other content areas discussed below), Section 230 effectively removes any duty for an interactive computer service to monitor content on its platforms, a tremendous boon for the development of new intermediaries and services.[54] Virtually all liability for content-based torts is pushed from the service to others, often the user. In practical terms, however, this has yet to manifest a windfall for online services; many claims are still brought against online intermediaries, and the question is often litigated extensively and at great expense before courts find that claims are invalid.[55]

As noted above, Section 230 does not cover intellectual property laws, and thus different rules apply in these cases. These are now addressed.

[33] Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995). See also Lawrence Lessig, Code 2.0 249-52 (2006) (discussing the Internet anti-pornography efforts happening around the time of the Communications Decency Act debate).
[34] 47 U.S.C. § 230. The section was part of a greater law that sought to relegate the transmission of offensive content to minors, the majority of which was later struck by the Supreme Court. See Reno v. ACLU, 521 U.S. 844 (1997).
[35] 47 U.S.C. § 230(c)(1).
[36] § 230(f)(2).
[37] See Ardia, supra note [[x]], at 387-89.
[38] § 230(f)(3).
[39] See Ardia, supra note [[x]], at 452.
[40] § 230(e)(1)–(4). The Electronic Communications Privacy Act governs the voluntary and compelled disclosure of electronic communications by electronic communications services.
[41] See § 230(c)(1).
[42] See Donato v. Moldow, 865 A.2d 711 (N.J. Super. Ct. 2005).
[43] See Corbis Corporation v. Amazon.com, Inc., 351 F.Supp.2d 1090 (W.D. Wash. 2004); see also Global Royalties, Ltd. v. Xcentric Ventures, LLC, 544 F. Supp. 2d 929, 933 (D. Ariz. 2008) (holding that even though a website “encourages the publication of defamatory content,” the website is not responsible for the “creation or development” of the posts on the site).
[44] See Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998).
[45] See Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003).
[46] See Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997). Promising to remove content and then declining to do so, however, can expose an interactive computer service to liability. See Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009). For more examples of actions likely to be covered under Section 230, see Online Activities Covered by Section 230, Digital Media Law Project, http://www.dmlp.org/legal-guide/online-activities-covered-section-230 (last updated Nov. 10, 2011).
[47] See, e.g., Jones v. Dirty World Entertainment Recordings, LLC, 2014 WL 2694184 (6th Cir. 2014) (defamation claim preempted by Section 230); Doe v. Friendfinder Network, 540 F. Supp. 2d 288, 302–303 (D.N.H. 2008) (intrusion upon seclusion and public disclosure of private facts claims preempted).
[48] See MCW, Inc. v. Badbusinessbureau.com, LLC, 2004 WL 833595, No. 3:02-CV-2727-G at * 9 (N.D. Tex. April 19, 2004) (the operator of a website may be liable when it is alleged that “the defendants themselves create, develop, and post original, defamatory information concerning” the plaintiff).
[49] See Online Activities Not Covered by Section 230, Digital Media Law Project, http://www.dmlp.org/legal-guide/online-activities-not-covered-section-230 (last updated Nov. 10, 2011).
[50] See Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157, 1175 (9th Cir. 2008) (en banc).
[51] See Barnes v. Yahoo!, Inc, 570 F.3d 1096 (9th Cir. 2009).
[52] See Jones v. Dirty World Entertainment Recordings, LLC, 2014 WL 2694184 (6th Cir. 2014).
[53] See Ardia, supra note [[x]], at 411.
[54] See, e.g., Jack M. Balkin, Old-School/New-School Speech Regulation, 127 Harv. L. Rev. 1, 17 (2014) (“Section 230 immunity . . . ha[s] been among the most important protections for free expression in the United States in the digital age. [It] has made possible the development of a wide range of telecommunications systems, search engines, platforms, and cloud services without fear of crippling liability.”).
[55] Id. at 493.

The Espionage Act

Because of the considerable attention given toward the dissemination of classified government information through the documents released by Chelsea Manning and Edward Snowden, and the profound policy implications of both the information they conveyed and the treatment of those who handle and disseminate such documents to the public, special attention should be given to a particular federal crime that implicates the disclosure of classified information. The Espionage Act of 1917 contains many provisions intended to prohibit interference with military operations and protect national security.[107] These include provisions that criminalize obtaining, collecting, or communicating information that would harm the harm the national defense of the United States.[108] This section was used by the United States government to go after the New York Times and Washington Post for their publication of “The Pentagon Papers,” a classified and damning assessment of United States involvement in the Vietnam War.[109] Most recently, it was used to convict former U.S. Army intelligence analyst Chelsea Manning for leaking classified documents to the organization WikiLeaks.[110]

While all federal criminal law includes the possibility for a charge of aiding and abetting another’s violation of the law,[111] the United States has never successfully prosecuted an information intermediary for disseminating classified information under the Espionage Act.[112] Such a theory would present profound First Amendment issues, and ultimately an intermediary may only be found liable if the intermediary bribed, coerced, or defrauded a government employee to disclose classified information.[113]

[107] See 18 U.S.C. §§ 793–798.
[108] 18 U.S.C. § 793(e).
[109] New York Times Co. v. United States, 403 U.S. 713 (1971).
[110] Cora Currier, Charting Obama’s Crackdown on National Security Leaks, Pro Publica, July 30, 2013, <http://www.propublica.org/special/sealing-loose-lips-charting-obamas-crackdown-on-national-security-leaks>. Many others have been charged but not ultimately convicted for violating the Espionage Act or conspiracy to violate the Espionage Act.
[111] 18 U.S.C. § 2; see also § 793(g) (“If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.”).
[112] See Emily Peterson, WikiLeaks and the Espionage Act of 1917: Can Congress Make It a Crime for Journalists to Publish Classified Information?, The New Media and the Law Vol. 35 No. 3, Summer 2011, available at <http://www.rcfp.org/browse-media-law-resources/news-media-law/wikileaks-and-espionage-act-1917>.
[113] See Geoffrey R. Stone, Government Secrecy vs. Freedom of the Press, 1 Harv. L. & Pol’y Rev. 185, 217. For more on the general First Amendment right to disclose true matters of public concern, see supra notes x-y and accompanying text.