Tuesday, June 14, 2011

Defamation and the Internet

    With the exponential growth of websites and blogs society has been forced to address defamatory abuses on the internet: sometimes wild and unsubstantiated statements about individuals which would be the basis for tort liability if published in a newspaper or a book.
    Ordinarily, the publisher of defamatory material authored by a third person is subject to tort liability. But in 1996, in the Communications Decency Act (CDA), 47 U.S.C. § 230, Congress created an exception to this general rule for internet publication. In substance, if one is a "provider or user of an interactive computer service" he is not liable in tort for publishing material authored by third parties.
    Today in Shiamili v. The Real Estate Group of New York, Inc., a divided New York Court of Appeals took its first look at the CDA and ruled that Section 230 immunity applies to those who run a blog dedicated to the New York City real estate industry. The allegedly defamatory comments were written by readers of the blog, not the administrator of the blog. In the view of the majority of the Court, simply publishing the comments could not create tort liability in light of Section 230.  A dissenting opinion by Chief Judge Lippman maintained that the defendants had gone further than merely publishing the material: they abused their power as website publishers to "promote and amplify defamation targeted at a business competitor." The dissent is noteworthy because Chief Judge Lippman is seen as a strong advocate of First Amendment free speech.
    The majority opinion in Shiamili contains an excellent survey of cases from across the country interpreting Section 230. The decision can be found here  

Friday, June 10, 2011

Lincoln, Slavery, and the Law

    I was about a quarter of the way through The Fiery Trial when the announcement came that the book was awarded this year's Pulitzer Prize in history. 
    Written by Eric Foner, the DeWitt Clinton Professor of History at Columbia, the book recounts in fascinating detail the evolution of Abraham Lincoln's thinking about slavery and the action government could legitimately take to address the issue. Most striking for me was the role that constitutional law played in Lincoln's thinking over three decades. 
    Lincoln was morally repelled by slavery but he thought that the law imposed serious constraints on what could be done about the "peculiar institution." The Constitution drafted in 1787 plainly recognized slavery without actually using that word: the three-fifth compromise allowed a state to count 60% of its slaves towards the state's total population for determining its representation in the House of Representatives (and its Electoral College vote), and the fugitive slave clause permitted slave owners to legally secure the return of runaway slaves. 
    Because the Constitution recognized a property right in slaves, Lincoln could not adopt the abolitionist view. Instead, he, like many others, opposed the expansion of slavery and had to deal with such knotty legal questions as whether a slave secured his freedom if the slave owner traveled with the slave into a state which had abolished slavery. 
    The Civil War and the Emancipation Proclamation brought Lincoln's legal dilemma to the fore: as President he was decreeing the manumission of slaves without providing for compensation to the owners--a policy he considered a necessity of war. Until his death Lincoln was concerned that the Supreme Court would declare the Proclamation unconstitutional. According to Professor Foner he named Secretary of Treasury Salmon P. Chase the Chief Justice of the Supreme Court "to guarantee that the Court did not challenge the constitutionality of the Emancipation Proclamation." The legal question was put to rest, however, when the Thirteenth Amendment abolishing slavery (without compensation to slave owners) was finally ratified several months after Lincoln's assassination. 
    This is history at its best: deeply informed, scholarly but readily accessible, and very well written. Take it to the beach this summer.