Barrett v. Rosenthal

In the recent decision of Barrett, et al vs. Rosenthal, et al, the justices of the California Supreme Court upheld the "right" of a person to post without regard to the truth or basic civility.

Rosenthal, a self-proclaimed health activist, who has had a demonstrated propensity to not show up to activate (see Institute of Medicine, Congressional Testimony, the 2000 Saline Hearings, the May 2006 DC Rally, or the May 2005 Silicone Hearings), won the right to post indecent, vile and unsupported accusations about people who disagree with her or take her to task for her abusive behaviors. She maintains dozens of web pages whose sole purpose seems to be to attack and abuse those people she does not like. Her actions appear to be for the purpose of silencing her critics and enhancing her "credibility".

In the decision, the court said:

"The court noted that another important purpose of section 230 (of the Communications Decency Act) was “to encourage service providers to self-regulate the dissemination of offensive material over their services.”

This writer wants to know where this "self regulation" is? Do ISPs or web hosts ever regulate abusive speech on their own? Do they respond to the vile defamatory attacks of people such as Rosenthal, even after they have been made aware of it?

The answer is quite simple: NO. Web hosting services such as GoDaddy (Rosenthal's) will never, ever tell a customer that their web pages violate their rules. The only rule that these companies enforce is whether the check cleared or the credit card is still valid. This will be an area of future articles on this blog. I plan to highlight abusers, and those who enable them.

The issue as I see it is the task of balancing the chilling of free speech by imposing rules with the chilling of free speech by way of libel and harassment. In Barrett, the court completely failed to consider the latter aspect, and created a climate where defamation, stalking, harassment and abuse can severely damage the reputation of their victims, leaving their victims with no recourse but to limit their activity and speech.

In Barrett, the court expressed their concern over the impact of the decision:

"The prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications. "

I suggest that these "disturbing implications" defeats some of the purposes of Section 230 of the CDA. Specifically,

Section 230 includes the following:
"(a)(3) The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity."
[...]
"(5) Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
“(b) Policy. It is the policy of the United States—
“(1) to promote the continued development of the Internet and other
interactive computer services and other interactive media;
“(2) to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;

Clearly, if one is a a victim of stalking, abuse, harassment and defamation, none of Congress' lofty goals will apply. Curiously, Congress added:

"(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

I find that the court citing this section is most curious, since the justices tacitly acknowledge abuse is possible, even likely, but then give the abusive user a loaded gun, with no checks or balances on its use.

This state of affairs reminds of the Old West, the days before law and order were brought in by fearless federal marshals and local sheriffs. It is an atmosphere where vigilante justice was the norm, rather than the exception.

However, there is good news, and more bad news, about this decision. First, the good news: this decision is binding only in California. Second, the bad news: it is likely to be persuasive in the other 49 states since the California Supreme Court is highly regarded by jurists in other jurisdictions.

As of this writing, the case has been sent back to the lower courts for disposition. After that, plaintiffs may appeal to SCOTUS, but that is a questionable course of action. SCOTUS does not take many cases, and the decision is likely to be upheld.

The problem, then, is how to make the e-world a true Free Marketplace of Ideas, as envisioned by Justice Holmes? Is the e-world to be governed by the same rules as the material world? Are there any differences that justify holding the abusive and defamatory e-writer to a standard that is at least the same in the rest of the world?

I submit that by the very nature of the e-world, there are differences that are so substantial that to allow the continued use of harassment, stalking, defamation and abuse will, in the long run, negatively impact the lofty goals of Congress.

There has to be some regulation, readily enforceable by victims, that would hold abusers, defamers and stalkers responsible. These rules need fair and rapid enforcement.

The differences, as I see them, will be the subject of my next article.