A Federal Anti-SLAPP Law Would Make CDA 230 More Effective

from the protecting-free-speech dept

“The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure.” Dombrowski v. Pfiser—Justice Brennan

Lawsuits against institutions that transmit speech, such as newspapers and blogs, impose costs that those institutions act to avoid—if necessary, by preemptively censoring any third-party speech that increases their exposure to legal liability. The purpose of Section 230 of the Communications Decency Act is to prevent this collateral chilling effect, specifically on internet users’ speech. CDA 230 enables the dismissal before trial of suits seeking to hold websites of the user-driven content model, such as Twitter and YouTube, liable for the unlawful speech or conduct of their users. This law is based on a policy judgment that, if held liable for all illegal content within millions of online posts, websites would reduce the amount of speech they transmit and, erring on the side of avoiding legal costs, would censor some lawful speech.

But even unsuccessful suits impose costs—after all, defendants who dismiss a suit before trial on CDA 230 grounds still must hire a team of expensive lawyers to secure dismissal. An empirical study in 2012 by Professor David Ardia at the University of North Carolina determined that the average CDA 230 case terminated on a motion to dismiss takes almost a year to reach dismissal. Ardia noted, plausibly, that litigating for this length of time entails substantial defense-side costs. In order to mitigate the collateral chilling effect of these pre-trial costs, defendants in CDA 230 cases need a fee-shifting mechanism that allows them to impose their costs on plaintiffs whose cases have faltered at the motion to dismiss stage. Given likely political obstacles to adding a fee-shifting provision to CDA 230 itself, a good way to supply this mechanism is through federal anti-SLAPP legislation.

Anti-SLAPP Laws

State anti-SLAPP laws serve a similar, but broader purpose than CDA 230: they provide for the expedited dismissal of meritless suits seeking to sanction the exercise of speech—“Strategic Lawsuits Against Public Participation,” or “SLAPPs,” in both an online and an offline context. The object of a such a meritless suit is often to silence someone or to force them to spend money, and not necessarily to obtain a favorable result at trial. A classic example of a SLAPP is a defamation lawsuit filed by a public figure against a newspaper in response to a critical opinion piece.

To invoke the protection of an anti-SLAPP law, a defendant must go through two steps. First, she must show that a suit is in response to activity on the part of the defendant that falls in one or several categories of First Amendment-related activities. Every anti-SLAPP law is worded differently, but many specify that they protect statements on “matters of public interest,” “issues of public concern” or something similar. Second, a defendant must show, in a promptly organized pre-trial proceeding, that the suit is meritless. And unlike CDA 230, most anti-SLAPP statutes impose the defendant’s costs on the plaintiff upon dismissal.

Currently, there is no federal anti-SLAPP law. As a result, there are important gaps in anti-SLAPP protection. For example, an anti-SLAPP defense is not available to defendants faced with meritless suits involving federal law claims. Additionally, plaintiffs can circumvent anti-SLAPP protection through “forum-shopping”—that is, by strategically bringing a suit in a state with a weaker anti-SLAPP law when bringing the suit in a state with a stronger anti-SLAPP law also would be proper. Federal anti-SLAPP legislation can prevent both of these tactics, not only in a CDA 230 context but with respect to frivolous anti-speech litigation generally.

Combining CDA 230 and Anti-SLAPP Protection in State Court

In some state courts, a defendant like YouTube can combine CDA 230’s substantive protection against liability for third-party content with an anti-SLAPP law’s fee-shifting feature. A defendant in such a case argues that a suit targeting the operator of a website for the speech or conduct of its users is meritless in light of the applicability of a CDA 230 defense and thus should be dismissed under the anti-SLAPP law. And under most anti-SLAPP statutes, the plaintiff must then compensate the defendant for her costs.

The combined application of the two defenses has occurred several times in California state courts. In Albert v. Yelp, for instance, a plaintiff-side consumer lawyer sued Yelp for defamation over negative reviews of her firm. Lenore Albert, the proprietor of a small firm in Huntington Beach, California, advertised herself as a “consumer advocate” fighting on behalf of “the people.” An employee of the firm became upset with Albert after she missed a filing deadline in a case brought on behalf of the employee’s friend. This employee organized a campaign among her friends to lower the firm’s Yelp rating by posting reviews characterizing Albert as an incompetent attorney who misses deadlines. Albert brought a defamation suit against the employee, her friends, and, most importantly for the purpose of obtaining a measurable award of damages, against Yelp itself.

Yelp disposed of the suit with an anti-SLAPP motion. In the first step of its anti-SLAPP analysis, the court noted that whether a lawyer presenting herself as a crusader for “the people” was living up to this self-description was a matter of public interest squarely within the purview of anti-SLAPP protection. Second, the court determined that the suit was meritless, as CDA 230 unambiguously protects Yelp from liability for defamation committed by a consumer reviewer. The case was dismissed and, in accordance with California’s anti-SLAPP statute, Yelp recovered its costs.

Closing Loopholes in This Combined Defense Through Federal Anti-SLAPP Legislation

Plaintiffs, however, can avoid this fortified combination of defenses in at least two ways. First, because state anti-SLAPP rules do not apply to federal claims, a plaintiff bringing a harassing lawsuit can bypass a state anti-SLAPP law by pleading a federal claim rather than a similar state law claim. For example, in 2016, Resolute Forest Products, a Canadian logging company, brought a lawsuit against Greenpeace in response to a media campaign accusing the company of unsustainable logging practices. Resolute alleged, among other claims, that Greenpeace violated both state and federal anti-racketeering laws by “creat[ing] and disseminat[ing] false and misleading reports and information…for the unlawful purpose of soliciting fraudulent donations from the public-at-large.” Resolute’s federal racketeering claim was equivalent to its state racketeering claim and overlapped with its state law defamation cause of action, which provides relief for reputational harm from false statements. A California federal court dismissed all claims against Greenpeace but only applied the anti-SLAPP law’s fee-shifting feature to the state law claims. Thus, Resolute partly accomplished its intended objective of forcing Greenpeace to spend money defending itself it court.

Second, a plaintiff can avoid state anti-SLAPP protection by strategically filing a suit in a jurisdiction with a weak anti-SLAPP law. For example, Washington Redskins owner Daniel Snyder responded to an article in a Washington D.C. newspaper criticizing Snyder’s management and ownership practices by threatening to sue a New York hedge fund that owned the paper. Washington, D.C. had at the time and continues to have a stronger anti-SLAPP law than New York. In a letter to the hedge fund, Snyder’s attorney candidly admitted the abusive motivation of the suit, writing “We presume defending such litigation would not be a rational strategy for an investment fund such as yours. Indeed, the cost of litigation would presumably quickly outstrip the value of the Washington City Paper.” Snyder ultimately dropped the suit.

A federal anti-SLAPP law would close these loopholes in anti-SLAPP protection. Federal claims would be subject to federal anti-SLAPP rules. And a federal anti-SLAPP law can contain a removal provision that allows defendants to transfer a suit to federal court, which would prevent forum-shopping. More specifically, federal anti-SLAPP legislation would maximize internet users’ protection from collateral censorship by making the anti-SLAPP fee-shifting mechanism available to defendants in a broader range of CDA 230 cases.

Limitations to Anti-SLAPP Legislation’s Enhancing Effect Upon CDA 230

While federal anti-SLAPP legislation undoubtedly would enhance CDA 230, there are certain gaps in both CDA 230 and anti-SLAPP protection that would not be mitigated by combining the two at the federal level. First, CDA 230 immunity can be narrowed by statutory amendment or judicial interpretation, and any such development simultaneously reduces the scope of anti-SLAPP protection in a CDA 230 context. Second, state anti-SLAPP jurisprudence suggests that a federal anti-SLAPP law would not apply in all CDA 230 cases.

A federal anti-SLAPP law would neither add to nor subtract from substantive CDA 230 immunity, however Congress and the courts independently choose to define this immunity. An anti-SLAPP defense can only be invoked against a meritless suit, and a complaint that pleads around the bounds of CDA § 230 immunity potentially has merit. Any legislation creating exceptions to CDA 230 immunity, such as the recently enacted Allow States and Victims to Fight Online Sex Trafficking Act, would simultaneously limit anti-SLAPP protection. The same is true of any judicial doctrine reducing the scope of CDA 230 immunity. For example, in the wake of Fair Housing Council of San Fernando Valley v. Roommates.com, which established that website operators can be held liable for “materially contributing” to unlawful third-party content, a number of lower courts have permitted plaintiffs to overcome a motion to dismiss with mere allegations that the defendant has played a role in the creation of content. A court would permit a plaintiff to overcome an anti-SLAPP motion on the same basis.

Additionally, courts likely would define limitations to anti-SLAPP protection that would preclude a federal anti-SLAPP defense in some CDA 230 cases. As explained, under anti-SLAPP statutes, before a court determines whether a claim is meritorious, the court typically must make a threshold finding that a legal dispute involves a matter of public interest. Defendants’ anti-SLAPP motions are sometimes defeated because the subject matter of the speech at issue is not “of concern to a substantial number of people,” but rather is something of interest only to the litigants or to a small subset of the public.

Inevitably, courts will find that some claims that lack merit on account of the applicability of a CDA 230 defense nevertheless do not qualify for anti-SLAPP protection because they do not touch on a matter of public concern. For instance, California courts sometimes distinguish online consumer reviews that involve simply an individual customer’s assessment of a vendor—a purportedly private matter—from reviews that provide additional commentary on issues of interest to the public, such as advice on how to choose a vendor within a certain industry. While CDA 230 typically protects a defendant consumer review website from liability for an unlawful consumer review, anti-SLAPP protection at the state level does not apply in all such cases. More generally, there is an imperfect overlap between CDA 230 immunity and anti-SLAPP protection. Assuming that a federal anti-SLAPP statute would mimic the language of broad state anti-SLAPP statutes, a similar imperfect overlap with CDA 230 likely will develop in jurisprudence interpreting a federal anti-SLAPP statute.

Conclusion

Although CDA 230 has come under criticism recently pertaining to some of its specific applications, it is important to sustain CDA 230’s central role in enabling the modern system of internet discourse and commerce. To accomplish more fully its indispensable purpose of protecting internet users from the threat of collateral censorship, this legal linchpin of the modern web needs to be supplemented with a fee-shifting provision. Passing federal anti-SLAPP legislation is an effective means to provide this crucial support.

Julio Sharp-Wasserman is a third-year Columbia law school student and Notes Editor for the Columbia Science and Technology Law Review, which will be publishing his student note on CDA 230 this winter.

Evan Mascagni is the Policy Director for the Public Participation Project, a non-profit organization working to pass federal anti-SLAPP legislation in Congress. PPP also assists individuals and organizations working to pass anti-SLAPP legislation in their states.

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Comments on “A Federal Anti-SLAPP Law Would Make CDA 230 More Effective”

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100 Comments
That's Only Rong says:

Definitely NOT for corporations to "preemptively censor" users.

The key to any Section 230 piece here is leftists-globalists trying to find ways to get The Public to accept a reversal of its very purpose. — It was to ENABLE PUBLIC FORUMS. — NOT to have corporations CONTROL The Public’s speech.

Google, Facebook, Twitter, and Techdirt are businesses SUBJECT TO serve The Public’s good. Period. If they don’t serve our purposes — whether it’s "hiding" my comments right here on tiny little Techdirt which advertises "free speech" falsely, then, or CNN just plain lying about its sources even after the source refuted himself — then WE can change the rules.

For instance, this week the Twitter Twerp was bragging that he could kick Trump off Twitter. — NEWS for you, Twerp: there’s NOTHING that says Twitter has a Right to even exist. It’s FICTION and a BUSINESS. We The People who can totally de-platform YOU from OUR Internet any time choose, for ANY or NO reason.

Stephen T. Stone (profile) says:

Re:

The key to any Section 230 piece here is leftists-globalists trying to find ways to get The Public to accept a reversal of its very purpose. — It was to ENABLE PUBLIC FORUMS. — NOT to have corporations CONTROL The Public’s speech.

Section 230 has enabled public Internet forums of all sizes. The fact that some of those forums are the size of Twitter or Facebook is irrelevant. (Also: You might want to reconsider using “globalist” in any context; most of us here know that word is a dogwhistle for “Jew”.)

Google, Facebook, Twitter, and Techdirt are businesses SUBJECT TO serve The Public’s good.

Show me the law that says any legal, privately-owned business must “serve the public good” or face punishment via the legal system.

WE can change the rules

If you can find enough lawmakers willing to back a law that would silence all but the largest corporately-owned free speech platforms on the Internet—ironically meaning that you would, in effect, silence the very platform through which you call for a “changing of the rules”—go right ahead.

this week the Twitter Twerp was bragging that he could kick Trump off Twitter.

I mean, Dorsey isn’t wrong. He has every right to decide who can and cannot use his service. If the federal government tried forcing Jack to keep Donald Trump’s personal account on Twitter from being suspended, how would you characterize that act?

there’s NOTHING that says Twitter has a Right to even exist

No shit, Sherlock.

We The People who can totally de-platform YOU from OUR Internet any time choose, for ANY or NO reason.

Why, then, are you still complaining about Twitter and giving it more attention than you think it deserves?

John Smith says:

Yet anti-SLAPP laws can be abused just like libel laws, with the lawyers profiting. There should at least be some sort of reciprocity with regard to fees.

Stronger protection for the internet means weaker or no protection for individual rights and reputations. Section 230 also allows for anonymous or judgmient-proof speakers to rely on the protected intermediaries to spread their vitriol. Also there’s no way to have confidence there is truth-in-advertising when websites that run ads are immune.

Fair-housing and anti-discrimination laws that would apply to offline media outlets have been found not to apply online. Then of course, there is revenge porn and sex trafficking, for which exceptions are being carved out because the victims are too sympathetic.

That's Only Rong says:

Clowns are PAID to push pro-corporate propaganda. So never ends.

So I don’t expect to "win" here, no. Simply presenting an opposing viewpoint is the battle itself.

Because I’m not paid, here’s again boilerplate on what Techdirt actually wants:

Masnick is for corporations CONTROLLING the speech and outlets of "natural" persons. He repeats it often, can’t be mistaken. From last year:

"And, I think it’s fairly important to state that these platforms have their own First Amendment rights, which allow them to deny service to anyone."

https://www.techdirt.com/articles/20170825/01300738081/nazis-internet-policing-content-free-speech.shtml

Masnick is not hedging "lawyers say and I don’t entirely agree", or "that isn’t what I call serving The Public", but STATES FLATLY. Masnick wants a few corporations to have complete and arbitrary control of ALL MAJOR outlets for The Public! He claims that YOUR Constitutional First Amendment Right in Public Forums are over-arched by what MERE STATUTE lays out!

Dan (profile) says:

Re: Clowns are PAID to push pro-corporate propaganda. So never ends.

The operator of a platform has a First Amendment right to decide what will appear on that platform, and it does not matter in the slightest whether that operator is an individual, partnership, corporation, LLC, or any other form of entity. You have a First Amendment right to speak, but not to use someone else’s private property (e.g., Facebook, or Techdirt) to spread your message. If that operator doesn’t like your message, they’re free to stop you from spreading it on their platform.

Anonymous Coward says:

Re: Trolls aren't PAID

He claims that YOUR Constitutional First Amendment Right in Public Forums are over-arched by what MERE STATUTE lays out!

Mr. Rong, you make many claims that don’t make much sense, but could you please explain how laws don’t apply?
Also, please point us to your website so we can see how you administer your thriving community of free speech and learn from your example?

Stephen T. Stone (profile) says:

Re:

Simply presenting an opposing viewpoint is the battle itself.

Dissent is never the issue. It is your continued complaints of “censorship”, your personal attacks against Mike Masnick, your continual playing-the-victim mentality, and your wholly dishonest, in-bad-faith interpretation of any position expressed on Techdirt that get you flagged. You might want to let go of whatever grudge you have been holding onto these past few years, Blue; it has obviously harmed your mental health.

Killercool (profile) says:

Re: Re: Re:

Simple dissent is, in fact, reason enough to boot him from the platform completely. It’s private property. As a blog owner, Techdirt can censor anyone here from saying things they don’t like. Just like a newspaper can refuse to print your letter to the editor.

You don’t have a right to use someone else’s property. You just don’t. My local grocery store is open to the public. They have no soliciting signs. Same thing.

As you said before, private /= privately-owned. Until a specific website is regulated as a utility, it’s just a billboard, and the owner is free to cover or even remove any unwanted postings.

John Smith says:

Re: AND??

That’s the “loser pays” system we definitively rejected. Copyright law already allows for fees to the prevailing party.

How about we let paralegals practice law when lawyers are not available? The legal monopoply is an “obsolete businesss model” as well, designed to preserve unearned income for a legacy profession.

John Smith says:

Re: Re: Re: AND??

Nurse Practitioners do entire basic appointments as it is now. Nonattorney “advocates” are increasingly allowed and could cut prices while offering many more a measure of protection.

Credentials for white-collar professions have as much root in sexism and racism as in competence. At one point in time it was just a business license.

Killercool (profile) says:

Re: Re: AND??

Anti-SLAPP law is not "loser pays." It’s "harasser pays."

A real case, even if lost, doesn’t fall under these rules. But you knew that before you said it.

As for your continued and mildly amusing crusade against the bar exam system, it’s not a monopoly. Anyone who can pass the test can be a licensed lawyer. They can also do a shitty job.

Someone who hasn’t passed the bar is just about guaranteed to do a shitty job.

Your right to representation includes a right to competent representation, and the bar exam system is the best way we have of trying to accomplish that. It fails, but it’s better than not having a way of weeding out the worst of the worst.

Anonymous Coward says:

CDA 230 does not apply to agents

Don’t you think that giving people a “badge” and having their posts appear with the “Insider” decal establishes the speaker as an agent of Techdirt? I mean, that’s what I infer when I see those things. And if it were true that other posters were compensated by Techdirt, either directly or indirectly, that would make them Agents of Techdirt as well. As Agents, their speech would not be protected using CDA 230.

So all someone would have to do to put Techdirt in a bind would be to assert that speech that Techdirt actively SOLICITS, either by granting publicly acknowledged agency (“Insiders”) or by paying or incentivizing behind the scenes or by establishing a history that promotes CERTAIN speech and punishes OTHER speech is exempt from CDA 230 protection.

That would, at the beginning of a lawsuit, pierce their CDA 230 protection until at least discovery was completed. A litigant could choose from a very large database of clearly defamatory speech and charge Techdirt with soliticing that speech from it’s own agents, losing them CDA 230 protection. It is a reasonable assertion on it’s face, has a lot of facts in support itself WITHOUT Techdirt’s cooperation, and discovery would LIKELY CONFIRM what we all suspect.

Maybe a GOFUNDME page is in order, what do you think?

Anonymous Coward says:

Re: What do you think, Stephen T. Stone

From the 40,000 foot view, it appears to me that Techdirt solicits your speech.

How do you feel, Stephen? Do you feel “solicited”? You look solicited.

Not like me. Techdirt doesn’t seem to like me at all, ever. They seldom fail to censor me. Yet they never seem to censor you. And you seem to come to their defense all the time, just like an agent would.

There are (literally) thousands of examples.

Have you been “solicited” by Techdirt? Do you feel “encouraged” to post here?

I really should ask the crazy guy, I guess. That’s likely to get me an interesting answer:

How about it, Uriel-238? Have you been “solicited” by Techdirt?

Anonymous Coward says:

Re: CDA 230 does not apply to agents

Hey, Mike, can you please explain your “terms of use”?

Are you implementing comprehensive site terms of use that prohibit uploading of infringing, defamatory, obscene or otherwise unlawful or offensive content;

I cannot discern your terms of use at all. Could you explain them, please?

Thanks,

Ajit

Anonymous Coward says:

Re: CDA 230 does not apply to agents

Hey dipshit discovery works both ways. So we would get to see all your Melina slashfic. In fact we would get to see who you “really” are. Not that we don’t already know that. So do it. I beg you. Fucking do it you pussy. But we al know you will run away like a bitch, like you do.

Anonymous Coward says:

Re: Re: CDA 230 does not apply to agents

Oh My God that would be embarrassing. My Melina (who is Melina?) slashfic. Wow, now I’m Intimidated. The name Melina is a Hawaiian baby name. In Hawaiian the meaning of the name Melina is: Calming; soothing.

How about your “Terms of service”, Michael Masnick? How does this post relate to your Terms of Service?

Could you please send your Terms of Service to: mailto:Ajit.Pai@fcc.gov, put “Techdirt” in the title.

Thanks in advance for your help.

Anonymous Coward says:

Re: Re: CDA 230 does not apply to agents

Sorry it took me a few minutes to figure out what “godundme” is, I thought maybe it was a reference to German Sanantic Rituals, but my friend told me you simply misspelled “GOFUNDME”.

I’ve never tried it, but I’m tempted. I wonder if Shiva would pony up some money. Is it a lot of work to set up? Anyone have experience with this?

Dan (profile) says:

Re: CDA 230 does not apply to agents

Don’t you think that giving people a “badge” and having their posts appear with the “Insider” decal establishes the speaker as an agent of Techdirt?

Um, no. No, I don’t. The suggestion is so nonsensical that I don’t think it warrants anything other than the Billy Madison response. A "Techdirt Insider" is someone who gives money to Techdirt, and in exchange gets a warm fuzzy feeling, a badge when they post, and a few small perks with their subscriptions.

I mean, that’s what I infer when I see those things.

I doubt it. But if that’s true, you need to spend quite a bit of time with a mental health professional. Or you simply haven’t the foggiest clue of what an agent is.

Anonymous Coward says:

Re: Re: CDA 230 does not apply to agents

Agent with Apparent authority refers to a situation where a reasonable third party would understand that an agent had authority to act (speak). This means a principal is bound by the agent’s actions, even if the agent had no actual authority, whether express or implied.

Anonymous Coward says:

Re: Re: Re:2 CDA 230 does not apply to agents

I am a reasonable third party, that’s hard to argue with.

And I heard that the Techdirt “Insiders” swear a blood oath and sign multiple contracts executed with bloody thumbprints and wax ear impressions and other biological contributions that I am loath to mention in a public forum.

Of course they are agents of Techdirt – to be confirmed as Insiders, they also have to be taped singing the Techdirt anthem and stomping on the constitution with long black leather high heeled boots with red soles. That’s what I heard. Care to dispute that? I think it’s even available on YouTube if you know where to look.

Anonymous Coward says:

Re: CDA 230 does not apply to agents

How much more directly ass-backward can you get?

Christ, file on so.ethi g defamatory. If it has merit, you get discovery. Oh, but no, your wet dream is taking down your self-proclaimed arch-nemesis, not anyone actually doing anything defamatory.

Good luck with that, bro.

Anonymous Coward says:

Re: Re: CDA 230 does not apply to agents

No, my wet dream is getting claims of defamation as well as claims of patent infringement, copyright infringement and trademark infringement in front of a jury easily, quickly and cheaply. That’s all. What has been ass-backwards for years is the judicial policies set by the Obama administration.

Juries can sort this stuff out easily and quickly and put the issue to bed. Doesn’t that seem fair and reasonable?

Shiva thinks it’s fair and reasonable. He told me so. Let a Massachusetts jury sort it out. Good idea, right?

Dan (profile) says:

Re: Re: Re: CDA 230 does not apply to agents

Wow, the President sets policy for the judiciary? I guess I’ll have to re-read my Constitution–I thought the Executive and the Judiciary were two of the three independent branches of our government.

No, lots of stuff never goes to a jury, and shouldn’t go to a jury. And disposing of the case before it goes to a jury is the primary way of handling it “easily, quickly, and cheaply.” That’s why Shiva resoundingly lost, easily, quickly, and (relatively) cheaply. And why he’ll lose again on appeal, except it won’t be cheap for him when the First Circuit decides that California’s anti-SLAPP law should be applied.

Anonymous Coward says:

Re: Re: Re:2 CDA 230 does not apply to agents

You’re joking, right? You think Obama followed the constitution? Obama appointed zealots to the judiciary. The Obama administration has now been caught Spying on a rival political campaign, quite publicly. Obama didn’t give a whit for the constitution, neither does the majority of the Democratic Party now. They just don’’t Care for the Rule of Law, and act like they never even READ the Constitution. Have you seen decision after decision from Obama judges reversed by SCOTUS?

You ARE joking, right?

Dan (profile) says:

Re: Re: Re:3 CDA 230 does not apply to agents

Ah, so no, the Obama administration did not set judicial policy. And no, decisions from Obama appointees haven’t been reversed at a markedly higher rate than decisions from judges appointed by any other president–not that that (or anything else in your comment) has anything to do with “judicial policies set by the Obama administration.”

And in case you forgot, the judge (F. Dennis Saylor) who correctly threw out Shiva’s case before it got to the jury was appointed by Bush, not Obama.

Anonymous Coward says:

Re: Re: Re:4 CDA 230 does not apply to agents

I thought there was another attorney on this very forum who agreed that Saylor should be reversed. What was his name? Really smart guy, obviously an attorney. You know who I mean, right?

He wrote when I asked the obvious question – is it possible to two people to look at the same facts and come different conclusions in good faith – that is, without anyone being a liar and a charlatan. The answer of was course people can disagree in good faith, so the use of the words “liar” and “charlatan” are indeed both inappropriate and defamatory. Shiva is not a liar, he just looks at the same facts and comes to a different conclusion. That’s possible. There is law behind it. Lots of it. Tons. Load. Lots of lots of law. No kidding.

Dan (profile) says:

Re: Re: Re:5 CDA 230 does not apply to agents

Nope, don’t know who you mean, and wouldn’t trust you to accurately characterize him or what he said in any event. But who he is doesn’t really matter, as the rest of your comment is nonsensical.

In order to prevail, Shiva (not Mike) must show a number of things by clear and convincing evidence:

  • "Shiva is a liar" is a statement of (claimed) fact, not of opinion–this is where he lost at the district court
  • "Shiva is a liar" is false
  • At the time he said "Shiva is a liar", Masnick knew that statement to be false

Your argument above is that since people of good will can interpret the same facts in different ways, it’s impossible to say Shiva is a liar, because instead he’s simply interpreting the facts (specifically, the facts which show conclusively that he did not invent email) in a very special way (most often associated with one or more diagnoses out of the DSM-V) that makes him believe that he did invent email.

I first disagree with your premise in that you’re claiming that people of good will (and at least ordinary intelligence, and sound mind, though you’ve left those unstated) can draw any conclusion from any set of facts. The law routinely concurs when it throws out jury verdicts, holding that no reasonable juror could have reached X conclusion from Y evidence.

But even leaving that aside, what’s good for Shiva is good for Masnick as well. If Masnick can’t legitimately say that Shiva is lying, neither can Shiva legitimately say that Masnick is lying–which means he can’t prove the third point above, which means he loses.

Anonymous Coward says:

Re: Re: Re:6 CDA 230 does not apply to agents

I think the word missing from the vocabulary of the left is “reasonable”. Attorneys are familiar with this word, but give it little weight, because it is not their job. Their job is to zealously argue in favor of their client, and “reasonable” is simply not in their job description. Zeal is in their job description. Their concept of “reason” is uninhibited by societal norms, and in their place, they use legal norms. That’s their job.

The argument in front of a jury is about being “reasonable”. Take Techdirt for example. What are the terms of service here? What is considered “reasonable” speech? Since there are no published terms of service (or terms of use), one can only infer from the censoring what type of speech is promoted here, and why. The answer is simple – speech that falls outside of all societal norms, including extremely disgusting filthy (by any reasonable societal standard) are promoted here, and sold as a service. The purpose is to associate disgusting filth with targets meant to be smeared. Techdirt does this for money, openly, and for years on end. That was the purpose of the Shiva posts – smear disgusting filth around someone else in public in an attempt to cause them harm. They tried to cause him harm, and they succeeded in causing him harm.

So in front of a jury, with the backdrop (and mountains of evidence) about what Techdirt really is and what Techdirt really does and how much money they make from it, THEN a jury can make a REASONABLE judgement about what a REASONABLE READER would think about the statements about Shiva being a liar and a fraud (as well as literally hundreds of disgusting, vile and obscene posts). They could look at the WHOLE PICTURE, and make up their minds if Techdirt was actually PAID to perform a DEFAMATION service and has been doing so for YEARS.

So, given the same facts, I come to a different conclusion from you. I think Techdirt is a Defamation for Hire service, and Shiva was only one among countless victims of their brutal and disgusting attacks. Techdirt and Masnick are actually proud of this, claiming they invented the “Streisand effect”, which speaks to the same concept. They are open about it, happy about it, and make their money this way. No doubt they will quickly either censor this comment or respond with more disgusting filth, either directly, or through their agents.

Go Ahead.

Anonymous Coward says:

Re: Re: Re:7 CDA 230 does not apply to agents

Defamation for hire
> “Streisand effect”

Yeah, this is how people can tell you have no idea what you’re talking about, because the former is not the definition of the latter.

Also “defamation for hire” is a complete joke, because if this was the case, Techdirt owes me money.

Noam Chomsky is not going to be on the jury, Hamilton. Get over yourself.

Anonymous Coward says:

Re: Re: Re:8 CDA 230 does not apply to agents

“The Streisand effect is a phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet. It is an example of psychological reactance, wherein once people are aware that some information is being kept from them, their motivation to access and spread it is increased.”

From my view, this is EXACTLY the motivation of the articles on Techdirt. Publicly smear someone for money, and if they attempt to protect themselves by challenging the smearing or trying to hide or remove the smear, SMEAR THEM MORE. That’s EXACTLY what Techdirt and their agents did to Shiva, and has continued to do now for YEARS.

Anonymous Coward says:

Re: Re: Re:9 CDA 230 does not apply to agents

So “Shiva didn’t invent email” is “information” now? Good to know.

For what it’s worth, the “Streisand effect” refers to the photographs of the titular singer’s coastal home. It refers to something tangible that exists or an event that has already happened.

But thanks for confirming that despite your insistence, this all boils down to what one oversensitive fuckwad with his panties screwed on too tight believes is the “definition of email”, and how he failed to get one judge to decide it on his behalf.

Anonymous Coward says:

Re: Re: Re:10 CDA 230 does not apply to agents

You are thanking me for something that I am NOT confirming. That’s disingenuous, don’t you think? I see the smearing of Shiva as but one among many smears. In fact, to me Techdirt seems to do little EXCEPT smearing others, and creating a space where disgusting smears are the NORM, not the exception. It is a community of obscenity of defamation that flies in the face of the public interest. It is infected with angry and disgusting posers that are promoted and defended at the expense of normal Americans and American values.

I boiled NOTHING down to Shiva – he is just another unfortunate victim (among many) of Techdirt’s disgusting smear parade. He is simply investing enough time and money to challenge the legitimacy of the Techdirt company and the people who benefit (in various forms) from selling defamation as a service.

Anonymous Coward says:

Re: Re: Re:11 CDA 230 does not apply to agents

You are thanking me for something that I am NOT confirming

What you said is that you hoped it was something that the jury would decide to see if Shiva needed it before he could harass Techdirt for money.

one among many smears

This is why you get called a John Steele fanboy, Hamilton. Because to you any questioning constitutes defamation. I can live with that, because the idea that you defend scammers and fraudsters is consistent.

seems to do little EXCEPT smearing others

Gossip exists. It has existed since mass media was a thing. Magazines, newspapers, why does the fact that others have opinions twist your panties so much?

in the face of the public interest

Ah, the old "Techdirt is a website that threatens my existence on a planetary scale but is a cesspool that nobody reads because it’s a cesspool" excuse.

another unfortunate victim

Right, along with that list of people you claim to have been irreparably damaged. Thousands of people, last I heard, except that after over a year of you posting fanatically on this website, you have shown absolutely no sign of it. You’d think that someone so angry, so bitter about thousands of people getting hurt would substantiate his claims besides petty insults and gaslighting arguments. Pathetic.

Right?

Anonymous Coward says:

Re: Re: Re:14 CDA 230 does not apply to agents

Come on, you have to admit that was clever, like planting little seeds of the words of our founding fathers, just to make an unambiguous point about the “actual “ terms of use here. Words that will bear future fruit, specific fruit, in front of a specific justice, at a specific time.

Clever, right?

Anonymous Coward says:

Re: Re: Re:16 CDA 230 does not apply to agents

Ok, well, I thought it was clever, but I always seem to think my own ideas clever. It comes after a long lifetime being right most of the time, and now reaping those rewards. So, let’s say it’s not clever, let me see if I can reply more specifically to the points you made:

“Well you said that it is what you hoped for” or something like that. What I hope for is speedy justice and speedy low cost resolution of disputes. Shiva has a dispute. I’d like to see it get in front of “reasonable” people (in his community) and let them sort it out. I think that would be best, yes, and the rest is a waste of everybody’s time. Let’s just see what people think about what Mike said and what Shiva said and if anyone got hurt. If Mike is so innocent, it should be easy to prove.

“This is why you get called a John Steele fanboy”. I would just say that only means something to you, I don’t know what it means. I am not sure how I can be a “fanboy” (is that like a “roadie”) of someone I’m not familiar with at all.

“Gossip exists”. Yes, it does, but I’m not a big fan, because it is so unreliable. Gossip and fake news go hand in hand, I’ll bet you agree with that. Techdirt is Fake News, that’s why Trump hates it so much (Shiva too).

I would stand by my comment that Techdirt acts in a way against the public interest. One easy to understand example of this is the fact that they will not publish their Terms of Use or Terms of Service. The reason they won’t publish it is because it is specifically designed to publicly smear innocent people without redress. That is their objective, and no civic minded person would condone such a service. Yes, we need to protect the first amendment, but we do not need to protect widespread unaccountable defamation as a service. What possible legitimate reason is there not to publish the terms of use or terms of service on a public forum? What possible reason to keep it secret?

About “another unfortunate victim”, almost every article attacks someone or something, and almost ever time a countering view is offered, it is attacked and censored. Company after company, person after person, on and on. It just seems like a silly request to make a list when it is so obvious to the casual observer.

About my plan for Justice Kavanaugh, maybe clever maybe not. We will all see in time. I still think it was a little clever, and I am always happy to both quote our founding fathers and to point out that Techdirt commentators cannot even RECOGNIZE their writing. That’s pretty amazing, you uneducated foreigner socialist corporatists.

Anonymous Coward says:

Re: Re: Re:17 CDA 230 does not apply to agents

Let’s just see what people think about what Mike said and what Shiva said and if anyone got hurt. If Mike is so innocent, it should be easy to prove.

Which the first trial was going to prove except for the point that in order to decide whether Masnick was innocent or not, which you have been so gleefully pointing out, the judge had to decide whether it could be proven that Shiva invented email. Which he said no. All I can say about that is good job praying to the judge for such a stellar result.

I don’t know what it means

It means you defend scam artists masquerading as copyright enforcement, that’s what it means. And every time someone points out how copyright law is abused you scream and whine and cry about people disagreeing with you.

that’s why Trump hates it so much

Yeah, he really came out against the whole Pizzagate incident didn’t he?

It just seems like a silly request to make a list

Ah ha ha… no. You don’t get to weasel out of this "thousands of inventors" claim and then insist that it’s obvious. Come back with some more substantial material that isn’t just Janice Duffy having a grudge against a "lesbian separatist". Or is that too hard for you to muster?

uneducated foreigner socialist corporatists

Such sad insults speak volumes about how the usual trolls have no sense of logic or rationale. You campaign in favor of ISP companies. You trip over yourselves to explain why performance rights organizations who usurp money from artists and musicians should be permitted. You lapdance on every single corporation that isn’t called Google because the idea that a search engine exists makes you break out in a rash.

Keep praying, Hamilton. Don’t forget to include your Massachusetts tiger fairies for extra power.

Anonymous Coward says:

Re: Re: Re:18 CDA 230 does not apply to agents

I dunno, I think the appeal now is about the ordinary reader interpreting what “liar” and “charlatan” means. I don’t know how far that will get, but Harder is the guy to make that case, for sure. I’m not sure he’s really focused on Email argument at the moment.

I don’t think I authored a lot about copyright law, you might be mistaking me for someone else. But if you hate them and think they are wrong, I am happy to take credit for that.

No, I’m not making a list, but remember (for a specific example) the posts about ShipYard brewery actually being named ShitYard brewery by Techdirt paid commentators? That’s a classic example of the Techdirt technique of defamation for hire. There are many more (obviously).

I campaign in favor of ISP companies? Who’s delusional? (Hint – it might be you)

I will keep praying, Thank you for reminding me:

Dear God: Please help Donald J. Trump have a good day today as he battles the un-American forces of uneducated foreigner socialist corporatists, like those who post on this web site. Give him strength and energy and happiness and the confidence that the VAST MAJORITY of the American people love him and support him and wish him every success. If you could find a little time to tell him patent disputes needs to be cheaper and easier to resolve that would be good. God Bless Donald J. Trump and God Bless America. Amen

Anonymous Coward says:

Re: Re: Re:19 CDA 230 does not apply to agents

What you do is piss in your own panties because a website runs stories that offer opinions on individuals and corporations that may be construed as negative. You scream apologism for them so much, in your own words, it’s obvious!

And if the email argument isn’t the point, then Shiva has nothing to get angry about. Thanks for playing.

Anonymous Coward says:

Re: Re: Re:20 CDA 230 does not apply to agents

Sometimes I get the feeling that you are not a very open person, perhaps not even willing to consider other points of view. Have you ever heard this said about you? I don’t mean to upset you, but you seem a little closed-minded and anxious (and maybe a little obnoxious).

I don’t wear panties, and I do my best not to piss in what I do wear.

Do you pray? Could you share a prayer with us? You can use mine as a template, if you like. I won’t sue you for copyright infringement, in this one case, even if you use my material as a basis for your own. Prayers enjoy special exemption, that’s in the Hamilton clan’s long tradition of fairness.

Let’s pray together, what do you say? I’ll pitch in: Dear ——

Anonymous Coward says:

Re: Re: Re:21 CDA 230 does not apply to agents

Sometimes I get the feeling that you are not a very open person, perhaps not even willing to consider other points of view.

This coming from the guy who swore that he would see this website destroyed because he was asked to consider the possibility that Shiva Ayyadurai did not invent email. You don’t have many mirrors where you live, do you Hamilton?

Anonymous Coward says:

Re: Re: Re:19 CDA 230 does not apply to agents

Hello, descendant of Hamilton. I have taken your prayer into consideration and offer you the following. Patent disputes shall be resolved by verifying whether the patent in question was valid, thereby making such cases cheaper and easier to resolve by avoiding the trial. If there is no patent, there is no trial.

Your glorious president Donald Trump has so much confidence, he oozes puddles of it wherever he goes, so your prayer has in this matter has already been addressed.

In addition, Shiva holds onto the copyright of his code, not a patent.

I hope this pleases you. Keep fighting the good fight.

Anonymous Coward says:

Re: Re: Re:20 CDA 230 does not apply to agents

Well, Lord, that’s very generous of you, to respond so quickly and directly. I’m a little amazed that I got through, I know you’re quite busy.

Patents are presumed valid, right, Lord? Is that what you meant? That once a patent issues, it is presumed valid and should be accorded respect, especially on this forum?

About Donald J. Trump, well, you are certainly right about that. I imagine with all the prayers of the American people so focused on the same subject, he’s probably getting an unbelievable amount of support from you, Lord. He certainly looks like he lives a miracle every day.

Yes, Lord, I am pleased and humbled that you would take the time to reply. I know I am a weak vessel to carry your message, and I will do my best to be a better representative of truth and wisdom before retiring to my grave, being incinerated, and scattered to the four winds.

Anonymous Coward says:

Re: Re: Re:16 CDA 230 does not apply to agents

Well, I think Shiva/Harder are already funded for this, and the have THE WHOLE TRUMP FAMILY behind it – why do you think they won’t pursue it? POTUS spoke in public about it repeatedly in recent rallies, his view is clear, he wants to see more accountability in “Journalism”, which Techdirt/Masnick describe themselves as practicing. Why on earth not take it to SCOTUS?

Anonymous Coward says:

Re: Re: Re:18 CDA 230 does not apply to agents

I would not discount the power of POTUS, and his intimate connection to Malania, and her close connection to Harder, and his financial connection to Shiva.

POTUS really HATES fake news, and is on a mission. Have you seen the rallies? The WHOLE COUNTRY is behind him, faults and all. WE LOVE HIM!

For reals.

I will watch out for the elves, though, I’ve heard they’re formidable.

Anonymous Coward says:

Re: Re: Re:19 CDA 230 does not apply to agents

I would not discount the power of POTUS, and his intimate connection to Malania, and her close connection to Harder

Yeah, about that connection… the one where Harder’s partner was so disgusted, he quit?

That’s our Hamilton – going out of his way to defend the scum nobody else will! Why else would he bother trashing a site he publicly declared nobody would ever read?

Anonymous Coward says:

Re: Re: Re:20 CDA 230 does not apply to agents

And you point is….? Harder’s Partner quit so Harder is BAD? EVIL?

Now and then I do wonder about people’s feelings about good and evil, even my feelings about good and evil. Hillary looks EVIL to me, really she does. She looks like she lies for a living. Trump looks like a much more fun and much more open fellow. Afffable is the word that comes to mind.

I just don’t know how people see Trump as EVIL. He’s smirks, he mocks, he uses a lot of playground talk, he’s relaxed, he’s FUN! He’s not like Hillary at all. She just looks like a super-tense liar, and a liar for all the wrong reasons. Not relaxed and happy like Trump at all.

I am guessing I am in the minority on this particular site. But really, Harder’s partner quit so he’s EVIL? That’s just strange. At least I have evidence to back up my designation of EVIL. Hillary is just a nasty liar. Trump is fun.

Anonymous Coward says:

Re: Re: Re:21 CDA 230 does not apply to agents

And you point is….? Harder’s Partner quit so Harder is BAD? EVIL?

I’m saying that even rats know how to leave a sinking ship. Evil? Bad? Well, even the judge you prayed to help Shiva decided that the inventor of email couldn’t even be defined, so who gives a rat’s backside at this point. Good job!

Hillary is just a nasty liar.

And you believe she was running a pedophile ring in a pizza parlor. Don’t ever change, Hamilton. The judge needs to see the kind of Shiva fan who’s been praying to him.

Anonymous Coward says:

Re: Re: Re:22 CDA 230 does not apply to agents

Yes, too bad about the whole pedophile ring story, that just seems bizarre, doesn’t it? I like some of the Q stuff otherwise, but that’s just strange. I heard about it right here on Techdirt, ironic, no?

Since you seem talkative, how about sharing your opinion of Hillary? Can you see her as POTUS? Does that image look good to you?

Sincere (without wax) question. Really. Truly. No kidding.

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