The Return to Criminal Law as a Remedy: Libel
I’m continue to serialize my forthcoming UC Davis Law Review article What Cheap Speech Has Done: (Greater) Equality and Its Discontents; you can read the Introduction, but in this post I’m talking about how “cheap speech” has brought back criminal remedies for libel. Recall that the article is mostly descriptive, focusing on what’s happening, for better or worse.
[A.] The Traditional Civil Damages Model
For decades, protecting people’s reputation from defamatory falsehood had been left to libel damages liability. Damages liability is supposed to compensate the injured target of the speech. It is supposed to deter libelers. And it is supposed to encourage libelers to promptly retract their false charges once threatened with a lawsuit.
This mechanism worked to some degree, however imperfectly, for the pre-Internet mass media. Because such media organizations had money, they tended to worry about libel liability. And because they had money, plaintiffs (or plaintiffs’ lawyers) had some prospect of recovering their fees, if they had very strong libel claims. Libel law also worked to some degree for libel lawsuits against employers, business rivals, and similar commercial actors.
This is, of course, an oversimplification. Libel cases were often hard to win, because of the Supreme Court’s decisions reining in libel law. The availability of libel insurance also likely made the deterrent effect of libel law more complex. And even in the past, there were judgment-proof libel defendants: “[M]ost libellers are penniless,” an 1881 treatise author wrote, though perhaps exaggerating, “and a civil action has no terrors for them.” Still, on balance, tort law tended to serve its compensatory and deterrent function here, at least to some extent.
But the risk of civil liability doesn’t much affect speakers who have no money. Suing such a speaker is a sure money pit: you have to pay your lawyer, and you know you’ll never recover any of that expense, much less get compensated for your damaged reputation.
Knowing this, judgment-proof speakers aren’t much deterred by the risk of a libel lawsuit up front, before they make their statements. And even if they get a letter demanding that they take down the statements from a blog or a Facebook page, they can feel relatively safe playing chicken. True, even poor speakers can have some assets that could be seized, so they risk some pain from a libel lawsuit. But such speakers can usually be fairly confident that their target won’t invest the money in getting and enforcing a judgment.
[B.] 47 U.S.C. § 230
Of course, Internet speech, even from judgment-proof speakers, comes through platforms owned by businesses that have ample assets. Blogs are hosted on some company’s computer systems. Consumer reviews are posted on some company’s site, such as Yelp or RipoffReport. Revenge porn is often posted on sites devoted to pornography. And this material is usually found by users using search engines.
But all those non-judgment-proof intermediaries are, with few exceptions, not liable for what users post, and generally aren’t even subject to injunctions to remove or block such user posts. Title 47 U.S.C. § 230, enacted in 1996, expressly provides that such Internet content and service providers can’t be treated as publishers or speakers of material posted by others. Courts have read this immunity broadly, to bar nearly every theory of civil liability that plaintiffs have tried to impose on such companies.
And the immunity applies whether or not service providers decide to control what is posted on their sites. Service providers are thus free to choose whether to take down some material that they conclude is defamatory or otherwise offensive, or whether to keep it up. In either case, they are immune from liability (except as to material that infringes federal copyright or trademark law).
Thus, for much online material, there is no potential institutional defendant who might be held accountable. Plaintiffs can sue the individual authors — but if such a lawsuit doesn’t give the plaintiffs the relief they seek, no other defendants are available.
Some of the problems discussed in this Article could be ameliorated by repealing or limiting § 230, and thus by giving organizations that are vulnerable to civil liability an incentive to police speech. Of course, this would exacerbate other problems, chiefly by giving the organizations too much of an incentive to police even protected speech. For our purposes, I will assume that § 230 endures, though the concerns discussed in this Article may lead some readers to reflect on whether § 230 ought to be modified — say, by instituting a limited notice-and-takedown provision, such as the one provided for copyright infringement under the Digital Millennium Copyright Act — or whether such calls should be resisted.
[C.] Anti-Libel Injunctions and Criminal Contempt
As compensatory damages have become practically unavailable to more and more libel victims, courts have shifted
Article from Latest – Reason.com