California State Supreme Court Recognizes Internet Free Speech???

Calif. High Court Cold to Liability in Online Speech

Oakland, Calif., attorney Christopher Grell's belief that certain Internet speech shouldn't be immune from liability was bombing Tuesday during oral arguments in the state Supreme Court.

But the coup de grace came when Justice Ming Chin followed up Grell's presentation by immediately telling one of the opposing lawyers how surprised he was by Grell's "startling lack of legal authority."

That statement apparently summed all seven justices' thoughts about Grell's argument, and effectively signaled that the court doesn’t intend to make untold numbers of Internet users liable for every allegedly defamatory posting on the Web.

Although the California Court has not handed down its ruling yet, there is every reason to hope that our blogs, comments and other posting will be better protected by this ruling. While the ruling technically would only apply to California, the principles being employed, and the lack of legal authority cited by the panel of justice will go far toward setting a useful precedent in all future cases. This is a striking recognition of the principle of free speech under the First Amendment, the concept of "public persona or image" and the right of the common person to express opinions without a prior restraint and/or a chilling effect.

The courts have dozens of precedents on all three principles or doctrines. The most notable case on the "public persona or image" doctrine is Sullivan v. Times where the New York Times published an ad that had some erroneous and potentially damaging statements about a police commisioner and the issues involved in the civil rights campaigns.

Prior to the Sullivan decision there were over $300 Million in libel cases against media outlets bogging down the courts. Sullivan actually wiped the slate clean for many of these cases and established the test for malice which required forethought and intent of doing harm when publishing an advertisement, opinion piece or news report that focused on public figures, public issues or public concerns. While the issue of when a person is in the public view and becomes a "public figure" is still a debated matter, most commentary on the government, war, political campaigns, morality and ethics are covered by the doctrines established under Sullivan.

The doctrine of "chilling effect" on the press is so involved that the Electronic Frontier Foundation (EFF) and Harvard, Stanford, Berkeley, University of San Francisco, University of Maine, George Washington School of Law, and Santa Clara University School of Law and other media/Internet rights organizations have developed a Chilling Effect Clearinghouse covering the issues and concerns.

The matter of prior restraint is well-establsihed with precedents going back to our British roots and common law, with detailed entries in Blackstone's Commentaries (ca. mid-to-late 1700s).

Chin even pointed out that Grell's opponents -- Oakland attorney Mark Goldowitz and Ann Brick, of the American Civil Liberties Union of Northern California -- had "plenty" of legal authority on their side.

Goldowitz represents Ilena Rosenthal, a women's health advocate accused of posting an allegedly defamatory opinion piece with two online newsgroups in August 2000. The editorial by co-defendant Tim Bolen attacked retired Pennsylvania psychiatrist Stephen Barrett and Canadian doctor Terry Polevoy for their stance against alternative medicines.

While there are many that criticize the ACLU for taking on cases that are unpopular and deal with some of groups on the far fringes of our society (i.e. the right of neo-Nazis to march in Skokie, Illinois; the right of free speech on behalf of NAMBLA in a Massachusetts criminal case), the reason why the ACLU is so successful is that the briefs and research provided to the courts is spot on, citing not only precedents and established cases, but the state and federal constitutions.

It must be stated that the ACLU has never supported the causes of the neo-Nazis, NAMBLA, the KKK or any other fringe group, only the right of these groups to express their views, publish literature, and exercise their civil rights and/or liberties. It seems that this is an issue that confuses many people. The ACLU does not support causes, but does support the US Constitution, the Bill of Rights, and the liberties guaranteed in the US Constitution and the various state constitutions.

The article accused the two men of using false information and intimidating tactics, and said Barrett had stalked a woman who hosted a Canadian television show about untraditional therapies.

Alameda County Superior Court Judge James Richman threw the two men's libel suit out in 2001, but San Francisco's 1st District Court of Appeal reinstated Polevoy's claims in 2004. The appeal court held that §230 of the federal Communications Decency Act didn't immunize Rosenthal.

There has been a trend in the courts, and in the laws that have been passed in congress and state legislatures, toward eroding many of the well established protections (i.e. Miranda, Gideon, Sullivan) and offering a broader application of conservative (mostly ultra-conservative), pro-big business, pro-government and anti-media ideologies in the law. We have even seen the grwoth of religious-based ideologies (mostly ultra-conservative Christian Right ideologies) in our laws. The Communications Decency Act--like many others that have been found to be overly broad, vague or otherwise unconstitutional--is yet another effort to erode the well-established right of free speech. Even the issue as to whether or not a blog is protected by the First Amendment has been a hot issue in our legal system.

An e-mail from Barrett threatening to sue Rosenthal, the 1st District ruled, put her on notice that she could be held liable for republishing Bolen's letter.

This is an example of conservative judicial activism. An e-mail threatening a law suit on the basis of defamation is not--and never has been--adequate notice of the intent to sue. An intent to sue notice should follow an established format that offers specific reasons for the suit, the cause of action, and describe the events that lead to the initiation of a suit. Merely threatening to sue does not rise to the level of notice. In our litigious society, everyone threatens to sue someone as a tactic of intimidation. I have had neighbors threaten to sue my family on the basis of a neighborhood disagreement that had no basis in law. Should such a "threat" be deemed a notice of intent to sue? I think not.

Additionally, merely threatening a suit should not be the foundation for implementing a restraint on a consumer's or critic's opinion about a product, service, business or profession. In this case, there is room for criticism of traditional medicine as well as non-traditional medicine. The fact that some information is inaccurate or casts a less-than-favorable light on members of a business is not necessarily adequate grounds for a suit. Even if the suit does rise to the level of being actionable, prior restraint cannot be implemented. The courts have long held that in order for a restraint order or injunction to be issued, the party seeking relief must demonstrate that there is a likelihood of success in the suit, that there are irrevocable damages, that less invasive methods are not immediately available and that several other criteria be met based on the nature of the case.

Someone could threaten to sue me for one of my blog posts. Should that threat of suit cause me to shut down my entire blog? Or, if the court is convinced of the potential for victory or irrevocable damages exist, should the restraint be issued in a much narrower approach... say, perhaps, restraining my commentary on a particular issue addressed by the plaintiff?

Dozens of amici curiae -- most of them online companies such as Amazon.com and Earthlink Inc. -- joined Rosenthal in arguing that the appeal court's ruling could chill free speech.

Interesting members of the "peanut gallery."

"If, simply by receiving 'notice,' service providers were potentially liable for the unimaginable volume of third-party content that constantly flows through their services," the companies' lawyer, Samir Jain, wrote, "they would have little choice but to automatically and immediately take down and block third-party content in response to virtually all complaints."

Jain, a partner in Washington, D.C.'s Wilmer Cutler Pickering Hale & Dorr, argued that notice-based liability would "unleash a 'heckler's veto' that would suppress swaths of entirely legitimate content."

There's the prior restraint and chilling effect.

On Tuesday, the California Supreme Court seemed to agree and also stressed the fact that the 1st District ruling differed from all others around the country.

The justices noted that most courts -- even two other appellate courts in California -- had agreed with Zeran v. America Online Inc., 129 F.3d 327. That 1997 seminal ruling by the Virginia-based 4th U.S. Circuit Court of Appeals said Internet users -- unlike publishers -- aren't liable for posting online content.

"The court of appeal ruling here," Justice Joyce Kennard said, "seems to stand completely on its own. Zeran has been followed widely."

While the Zeran precedent stands here, the entire concept of liability for Internet posting, content and expression is under attack.

A few justices also seemed concerned that a California Supreme Court ruling contrary to Zeran and its progeny could result in forum-shopping, with Internet users trying to remove suits to the federal courts.

This attempt to shop the different venues and jurisdictions is a clear indication that the established precedents are under attack.

No one, Justice Carol Corrigan said, would want to be found liable in California. "I think there is that danger, yes," Goldowitz replied.

Corrigan also stepped in when Grell tried to argue that the Internet should be held to the same liability standards that apply to newspapers and magazines. "Isn't the whole point here that the Internet is different?" Corrigan asked.

The Internet is not really different, but a return to the historical precedents existing at the time our Constitution was framed. In the Colonial Era anyone with access to printing technology was considered part of the "press." The term "press" was not based on content, timeliness of the topic, or status as a company. Thomas Paine published "Common Sense" not as a business, but as a patriot expressing a political view using the best communication technology available at the time. Paine wanted his words, thoughts and ideas to reach the widest audience possible. Not everyone agreed with Paine's ideas. In fact, there were those that criticized Paine (as well as Franklin and others involved in the "movement") of being inaccurate, libelous and malicious.

Grell was asked several times to point to legal authority that would support his case, but more often responded by arguing public policy reasons that immunity shouldn't apply to postings by third-party users.

Public policy arguments belong in front of the legislature... legal arguments belong in front of the courts.

A ruling in Barrett v. Rosenthal, S122953, is due within 90 days.