First Amendment topicsAbout the First Amendment
Obscure Internet libel provision hits the big time

By Douglas Lee
Special to the First Amendment Center Online

“Section 230(c)” might not sound as impressive as “the First Amendment,” but its significance for free speech — at least in cyberspace — is beginning to transcend the sacred constitutional guarantee.

The 9th U.S. Circuit Court of Appeals is the most recent federal court to hold that the protections afforded Internet speech by Section 230(c) of the Communications Decency Act of 1996 exceed those offered by the First Amendment. As interpreted by the court in Batzel v. Smith, Section 230(c) immunizes from liability Web-site operators who post defamatory e-mails authored by third parties.

Similar immunity never has been available to newspapers, magazines or broadcast stations. Under the First Amendment, media that negligently republish defamatory letters to the editor or remarks about non-public figures are as liable — if not more liable — than the person making the damaging statement. These media therefore routinely refuse to publish unsupported charges and accusations.

Fearful that such liability would stunt the growth of the Internet, Congress passed Section 230(c), which states that “[n]o 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.” With this statutory protection in place, Internet access providers and Web-site operators can host bulletin boards and post other information without assuming responsibility for the accuracy of the material provided.

Just as Web sites grow in this unregulated environment, so do the numbers of innocent and not-so-innocent victims of online defamation. In Batzel, for example, a lawyer from rural North Carolina claimed a Web posting ruined her reputation.

In 1999, the lawyer, Ellen Batzel, hired a handyman, Robert Smith. According to Smith, Batzel told him she was “the granddaughter of one of Adolf Hitler’s right-hand men.” Smith also maintains he overheard Batzel say she was related to Nazi leader Heinrich Himmler. Smith therefore began wondering whether Batzel’s extensive art collection included pieces stolen during World War II.

Smith e-mailed his suspicions to the Museum Security Network, which operates a Web site and an electronic newsletter read by museum security officials, insurance investigators and others interested in locating stolen art. The owner of the network, Tom Cremers, selects the information to be published and often edits the e-mails that are posted and redistributed.

After making some minor wording changes to Smith’s e-mail, Cremers included it on the Network’s Web site and in its listserv newsletter. Batzel learned of the e-mail several months later and complained to Cremers, insisting she was not related to any Nazi official and denying any of her artwork was stolen. Cremers then contacted Smith, who maintained his e-mail was true but said he had not anticipated that the network would disseminate it. Claiming serious reputational injuries, Batzel sued Museum Security Network and other defendants.

Cremers asked the trial court to dismiss the case, citing Section 230(c). The trial court refused, saying the network was not an “Internet service provider” under the statute. The three-judge panel of the 9th Circuit reversed, holding in a 2-1 decision that Section 230(c) was intended to protect all who republish information, as long as the republisher reasonably believes the original author intended the information to be republished. The court therefore remanded the case to the trial court to determine whether Cremers reasonably believed Smith intended his e-mail to be disseminated by the network.

In its ruling, the panel's majority readily acknowledged it was interpreting Section 230(c) to provide more protection than that traditionally offered by the First Amendment. “There is no reason inherent in the technological features of cyberspace why First Amendment and defamation law should apply differently in cyberspace than in the brick and mortar world,” the 9th Circuit panel said in an opinion written by Judge Marsha Berzon. “Congress, however, has chosen for policy reasons to immunize from liability for defamatory or obscene speech ‘providers and users of interactive computer services’ when the defamatory or obscene material is ‘provided’ by someone else.”

In his dissent, Judge Ronald Gould claimed the majority’s “sweeping preemption of valid state libel laws” exceeded Congress’ intent and was unnecessary to promote Internet use. “The majority rule licenses professional rumor-mongers and gossip-hounds to spread false and hurtful information with impunity,” he said. “So long as the defamatory information was written by a person who wanted the information to be spread on the Internet (in other words, a person with an axe to grind), the rumormonger’s injurious conduct is beyond legal redress.” Congress, Gould maintained, surely did not intend Section 230(c) to immunize Web site operators “who, by their discretionary decisions to spread particular communications, cause trickles of defamation to swell into rivers of harm.”

To protect both speech and reputation in cyberspace, Gould urged an interpretation of Section 230(c) that would focus on the operator’s conduct, not the author’s intent. Section 230(c) should immunize a Web-site operator, he said, only when the operator takes “no active role in selecting the questionable information for publication.”

The problem with this approach, as Congress recognized when it passed Section 230(c), is that it would reward operators who refused to acknowledge responsibility for the material on their sites and penalize those who attempted to accept that responsibility. If the safest legal course were for operators to refrain from exercising editorial judgment, we can be sure no such judgment would be exercised.

Still, though, Gould’s frustration is understandable. Regardless of whether Batzel’s reputation truly was harmed by obscure Web postings, one can easily imagine cases in which persons with axes to grind will grind them quite effectively in cyberspace. Reputations undoubtedly will be harmed, some innocently and some by operators who will hide their impure motives behind the protections of Section 230(c).

At the moment, however, Section 230(c) strikes the balance between the Internet and personal reputation squarely on the side of the Internet. Some will say that balance is appropriate. Others will claim it’s already outdated. All we know for sure is that, for better or worse, the debate about Section 230(c) is only just beginning.


Bloggers win libel protection

9th Circuit finds online publishers can post material generated by others without liability for its content. 07.03.03

Calif. high court leans toward tossing Net libel lawsuit
Congress, other courts have already spoken on issue, justices say during hearing in case of woman who posted allegedly libelous e-mail on her Web site's message board. 09.06.06

Fla. jury awards $11.3 million in Net-defamation case
Children's services referral provider sued after a mother posted messages calling her a 'con artist,' 'crook,' and 'fraud'; legal analysts say award is among largest for online-libel cases. 10.12.06

Calif. high court: Web sites not liable for third-party postings
Unless Congress revises existing law, people who claim they were defamed online can only seek damages from original source, majority finds. 11.21.06

Online libel

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