by Eric Goldman, Professor of Law, Santa Clara University School of Law
In 1996, Congress became concerned that excessive liability would threaten the free flow of information over the Internet. To protect the Internet from this risk, Congress passed 47 USC § 230 (Section 230), which eliminates (with limited exceptions) the liability of online services for publishing third party content.
By any measure, Section 230 has been a remarkable success. Think about the Internet services you use daily, such as Google, Facebook, YouTube, Wikipedia, Twitter, eBay, Snapchat, LinkedIn, and Yelp. All of them publish third party content, and all of them have flourished because of Section 230’s immunity. Section 230 also promotes competitive markets by reducing entry costs. New entrants can challenge the marketplace leaders without having to match the incumbents’ editorial investments or incurring fatal liability risks.
by Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office. Mr. Rottman will participate in “The Web as the New Battleground over Free Expression,” a panel discussion at the 2014 ACS National Convention.
The internet, perhaps the greatest information revolution in living memory, presents profound threats to personal privacy. A few weeks ago, the highest court in the European Union issued an extraordinary ruling on the subject. In a mistaken attempt to reach the laudable goal of giving individuals more power over their personal information online, the court gave individuals the power to punch holes in the historical record. Such a power would seriously threaten free speech.
The decision was a landmark in an ongoing effort, on both sides of the pond, to create what many call a “right to be forgotten” in privacy law. The right to be forgotten means individuals have a legal right to control personal information held by third parties and posted online.
Most agree that there can be some form of that right for material that you post yourself (for instance, you should have the right to demand that Facebook completely delete your page if you want to leave the service). But other types of information shouldn’t be so easy to erase —especially something like a newspaper article reporting truthful information in the public interest. Even if that article is deeply embarrassing to an individual covered or quoted, it shouldn’t be taken down.
But that’s exactly what happened in the European case. In the late 1990s, a Spanish lawyer had his home put up for auction by the government to pay a debt. When someone Googled his name, two links would come up to notices in La Vanguardia, a Spanish newspaper, which had been placed by a Spanish government agency to promote the auction. In other words, this lawyers’ tax debt was a matter of both public record and public interest.
National Review Online’s Ed Whelan has kindly pointed out some busted links on the ACS website. Actually he does so with hyperbole, probably born out of paranoia. He says ACS in “Stalinist airbrushing” fashion is trying to advance the careers of people he claims we’d like to see confirmed to “judicial office.”
Broken links, however, do not make a conspiracy. Whelan’s legwork has helped us restore links and we’ll make progress quickly on providing access to all our archived video. In 2010 we revamped the ACS website and not all links survived the transition. Again that’s technology and we don’t have an army of people at ACS to restore every link in every blog post or every landing page on the site. With time and capacity many links, especially to video, will be restored. In a small, but growing nonprofit we must prioritize.
Whelan accuses ACS of removing video of an event that Nina Pillard, a professor at Georgetown law school and a nominee for a seat on the powerful U.S. Court of Appeals for the District of Columbia Circuit, participated in during fall 2010. The event focused on class action lawsuits and arbitration. Thanks for pointing out the busted link, Ed. It has been restored, you can watch it here.
He was also disappointed that he could not access video from the 2006 ACS national convention containing comments from Stanford law school professor and ACS Board member Pamela S. Karlan. That video link has also been fixed. The video quality is awful. I’m not sure what vendor ACS used at that time, but video quality of Convention programming is much better now. But the audio works just fine.
California Supreme Court Justice Goodwin Liu, a former ACS Board chair, has spoken at many ACS events. Whelan linked to some transcripts of various Liu speeches, one from 2004, which he says helped defeat his nomination to the U.S. Court of Appeals for the Ninth Circuit. Alas, the links to those transcripts have not been restored. But we’re working on it. When and if the links are fixed, I’ll update this blog post.
By Judge Lynn Adelman and Jon Dietrich, authors of a recent article for the Harvard Law & Policy Review
In the latest issue of the Harvard Law & Policy Review, we published Extremist Speech and the Internet: The Continuing Importance of Brandenburg. Our article, is essentially an ode to the 1969 decision of the Supreme Court in the case of Brandenburg v. Ohio, which imposed a very high bar for the regulation of potentially dangerous speech. We respond to arguments that First Amendment doctrine is insufficiently flexible to deal with extremist and hate speech conveyed on the internet. We argue that Brandenburg's speech-friendly formulation has served us well and is entirely adequate to deal with internet communication. In particular, Brandeburg prohibits punishment for the advocacy of the use of force or violation of the law except when "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
We point out that the internet is a typical example of how technological advances in communication have caused people to become uneasy about broad protections for speech. This goes back to the invention of the printing press. We argue that there is nothing about the transmission of information via the internet which requires that weakening of the robust protection of speech afforded by Brandenburg. We discuss cases in which the Brandenburg standard has protected internet speech, and we show on a more general level how Brandenburg's distinction between advocacy and speech clearly likely to lead to imminent harm has benefitted our society.
Cliff Sloan, attorney at Skadden, Arps, Slate, Meagher & Flom, and co-author of The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court, participated in a panel discussion at the 2009 ACS National Convention on free expression in cyberspace. Following the panel discussion, Sloan talked with ACSblog about "two competing visions of the Internet." One vision, Sloan said, sees the Internet as a "vehicle, format" for an explosion of free expression, while the other sees the Internet as a vehicle for "unprecedented suppression of speech." Sloan said it was important for concerned individuals to stay engaged on First Amendment issues in cyberspace "so that the Internet can realize its full potential as a forum for unprecedented free speech."
Watch Sloan's interview below or download a video podcast of it here.