A Stinging Setback for Press Freedom

The first amendment places a prohibition on the federal government in dealing with (0.00 / 0)

the press.  If I understand this correctly, the case is between an individual and the press and the press may well, in the interest of efficiency and harmony prefer to settle a frivolous complaint.  Besides, it may be an effort to preclude stricter government interference via the FCC.

The lawyer's spin is just that.  I do think that an individual, unlike a public official, has an easier row to hoe in suing to have her good character restored.

Why should Google protect internet users from private individuals to whom they've been rude?

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by: hannah @ Thu Aug 20, 2009 at 09:47:33 AM CDT

In this case (0.00 / 0)

Google is the publisher. It should protect its contributors, be they polite or rude. The comments are clearly an opinion and should be protected.

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by: JimC @ Thu Aug 20, 2009 at 09:55:32 AM CDT

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Unless I misunderstand how it works, contributors to a blog are (0.00 / 0)

self-selected volunteers who may be banned, but cannot otherwise be controlled.  As a life-long volunteer, I am well aware that control, both as to what is to be done and what is to be avoided, goes with a pay-check.  Which is the same principle that governs our agents of government.  We pay people to do what we want--i.e. conform their behavior to a mandate.  That's why legislative directives to government agencies are either formatted as "must/shall" or "may."  The latter implies an option and allows for individual discretion.

Justice Kennedy makes a good point in his disquisition on the rule of law when he observes that the issuance of a permit for what is essentially lawful behavior is not a matter of grace.  So a driver's license must be issued when the competence to drive has been demonstrated.  So too, a license to marry must be issued when the requisite information as to who's making a commitment to whom has been provided.

I don't think that Google, by permitting an individual to post is assuming responsibility for the individual being able to say whatever he wants.  On the other hand, many terms of use to which a person signing on agrees provide that a certain decorum will be maintained and that personal invective will not be allowed.

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by: hannah @ Thu Aug 20, 2009 at 10:30:07 AM CDT

[ Parent ]

Side issues (4.00 / 1)

The main issue is this: Google publishes material. They provide the forum. Newspapapers do not control their ads, but they are liable if someone is libeled in an ad.

In my legal view (only slightly informed -- I am not a lawyer), Google would be liable if I committed libel on a Google blog.

In my opinion, they should not be liable. Having them incur liability for bloggers runs counter to the spirit of the First Amendment.

Also in my opinion, they should assume some responsibility and protect the First Amendment. They have the most to lose here, but I'd rather they did out of ... well, I'll call it patriotism.

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by: JimC @ Thu Aug 20, 2009 at 10:36:22 AM CDT

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The litigant is closer to a "public official" (0.00 / 0)

than an "individual". Celebrities such as models face a different, lesser level of protection from libel.

But they still have some - Carol Burnett won a suit.

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by: elwood @ Thu Aug 20, 2009 at 19:49:19 PM CDT

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I'm okay with this. (4.00 / 1)

Google provided a forum, Google has to provide the info so that the subject of the alleged defamatory speech can sue. Why should Google have a privileged relationship that protects it from revealing the name of someone who is defaming another person? Google is not a minister, it is not a doctor, it is not a spouse. Why should someone get away with defamatory speech because they hide behind an anonynmous blog, as opposed to someone saying it with a bullhorn on the street?

IMO the fact that something nasty and defamatory is said on the internet should not make it any more protected than the same comments made in another type of forum.  



"When you get to the end of your rope, tie a knot and hang on."  Franklin D. Roosevelt    

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by: Kathy Sullivan 2 @ Thu Aug 20, 2009 at 10:51:15 AM CDT

In what forum (0.00 / 0)

Are comments not protected?

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by: JimC @ Thu Aug 20, 2009 at 10:52:20 AM CDT

[ Parent ]

Still waiting ... (0.00 / 0)

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by: JimC @ Thu Aug 20, 2009 at 13:30:54 PM CDT

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Not sure I understand your question (4.00 / 1)

Defamatory speech is always subject to a  potential civil suit by the defamed party, and damages. The speaker may have a defense, but that's up to the judge or jury to decide.




"When you get to the end of your rope, tie a knot and hang on."  Franklin D. Roosevelt    

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by: Kathy Sullivan 2 @ Thu Aug 20, 2009 at 16:18:34 PM CDT

[ Parent ]

I go with Kathy on this. (4.00 / 1)

People arent allowed to simply defame other people and call it an opinion. If they make factual defamatory public remarks about others in public fora where such statements are likely to cause unwarranted harm to others, then they should be ready to pay the price, no matter what the nature of the medium they use to spread the calumny.

Political speech involving public figures is subject to a separate, more rigorous analysis, under the case of NY Times v Sullivan (not Kathy). This case to me adequately protects First Amendment concerns.

The alternative is to allow people to destroy the reputations of others with impunity.


"But, in the unlikely story that is America, there has never been anything false about hope." Si se puede. Yes we can.  

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by: Paul Twomey @ Thu Aug 20, 2009 at 20:22:02 PM CDT

[ Parent ]

See below (0.00 / 0)

If you called me a skank, but Vogue but me on the cover, my reputation would be intact.

OK, let's be honest, it would be completely shot, but not by you.

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by: JimC @ Thu Aug 20, 2009 at 21:31:06 PM CDT

[ Parent ]

On the other hand, (0.00 / 0)

If you called me a gentleman, but Vogue put me on the cover, Vogue's reputation would be completely shot.

Rather more seriously, the judge seems to have considered the actions defamatory, but also seems not to have seen fit to so state.

Is this decision, then, a judgment that anyone whose words could be plausibly construed as defamatory may be identified for the purposes of a lawsuit, which might or might not ever be filed, and might be threatened for the sole purpose of intimidating would-be critics?

Decision is here (3.3MB pdf).

Good context-filled article here.

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by: Tim C. @ Thu Aug 20, 2009 at 23:04:46 PM CDT

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Is Google like the NYT or the Post Office? (4.00 / 3)

Is providing a blog service with no influence whatsoever over the content like printing letters to the editor in the NYT? Or is it like accepting and delivering sealed envelopes?

My gut says, the NYT is more responsible for the contents of an LTE it prints, than is the USPS for delivering the letter to them. And if the court demanded that the USPS somehow trace the letter to its sender, that would be a Big Reach.

But...

Like the NYT and unlike the post office, Google makes its money from selling ads based on that content. Does that change things?

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by: elwood @ Thu Aug 20, 2009 at 19:58:11 PM CDT

Heres a link that discusses issues of libel and blogs. (4.00 / 1)

http://www.eff.org/issues/blog...


"But, in the unlikely story that is America, there has never been anything false about hope." Si se puede. Yes we can.  

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by: Paul Twomey @ Thu Aug 20, 2009 at 20:28:48 PM CDT

[ Parent ]

And here is another that discusses protections for the blog itself that posts a libelous statement from a third party. (4.00 / 3)

http://www.eff.org/issues/blog...

I dont know much about this area of law, but I do think the source, The Electronic Frontier Foundation, seems to be a reliable group. (But dont sue me if I am wrong).

"But, in the unlikely story that is America, there has never been anything false about hope." Si se puede. Yes we can.  

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by: Paul Twomey @ Thu Aug 20, 2009 at 20:34:03 PM CDT

[ Parent ]

Let me restate a few points (4.00 / 1)

... rather than reply to multiple people.

The blogger was anonymous. The model she called a "skank" was on the cover of Vogue. I guess it's arguable whether she's a public figure, but I find it harder to argue that she was "defamed" by a rude remark on a blog.

As to whether Google is the Times or the post office, it's neither -- it's Google, the single most important "media source" (publisher, in effect -- not legally, but in its societal role) on the planet. That's why I think this case is so important, and why I think Google let us all down. They put up no fight at all.

I cross-posted this on Blue Mass Group, and someone there raised the "terms of service" agreement, which may allow Google to reveal an anonymous blogger's name -- if it doesn't now, it likely will soon.

I am reminded of a chat my friend and I had about Enron, and we compared their use of Arthur Andersen to "driving around with a cop" and being told to roll through stop signs. But I tossed that aside, because whatever fancy tricks Andy Fastow cooked up, there was just no way Jeff Skilling didn't know something was wrong.

The point of that tangent being -- I don't care about whatever limits on liability Google carved out for itself. We are in a brave new online world, and its most powerful nongovernmental institution (not for the first time, I might add) threw us under the bus. Remember our outrage at the Alaska blogger who was outed last year? Now the world knows: just ask Google.

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by: JimC @ Thu Aug 20, 2009 at 21:27:15 PM CDT

So many issues wrapped up in this - (4.00 / 1)

1. Were the postings libelous?
2. Is the model a public figure?
3. Is a "blog wholesaler" responsible for the content on blogs it enables but does not control?
4. Does a blog wholesaler have a responsibility to keeps its clients' identities secret absent their agreement to release?
5. Is a blog posting less, equally, or more protected by the First Amendment than newsprint media?

In this post you strongly argue for YES to 4, and I agree.

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by: elwood @ Fri Aug 21, 2009 at 05:22:53 AM CDT

[ Parent ]

My answers (0.00 / 0)

1. No. They were too absurdly immature. The woman on the cover of Vogue is clearly not "a skank." It's roughly equivalent to saying the Yankees suck. (That said, I haven't read them in detail.)

2. I think this is the toughest call.

3. I want to say yes, but I'm reluctant to, because if they're responsible, they'll want greater control.

4. Yep. Glad you agree.

5. If the answer is not "equally protected," with anonymity being a rather meaningless side issue, then we are capital F F'd.

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by: JimC @ Fri Aug 21, 2009 at 06:05:40 AM CDT

[ Parent ]

Minimizing the statements (0.00 / 0)

You keep saying she was called a "skank" and infer that somehow because she was a Vogue model clearly that wasn't true, so it's okay. No, just because someone is a cover model doesn't make it okay for her to be the subject of a defamatory tirade, which is quoted in full below:

Google has just handed over the IP address of the user of Blogger (a Google service) who had posted some very unkind things about Vogue cover model Liskula Cohen on a blog called "Skanks in NYC," including photo captions referring to her as the "Skankiest in NYC" and a "psychotic, lying, whoring ... skank."

 

Psychotic, liar, whore?  Those are words intended to injure the woman's reputation. The fact she is a model does not mean she gives up her legal rights when someone says things like that about her.

Plus, the analogy to the Yankees does not wash because it is a generic comment made about the team from year to year no matter who the members are.  It is not a personal comment intended to injure the reputation of say, Johnny Damon.




"When you get to the end of your rope, tie a knot and hang on."  Franklin D. Roosevelt    

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by: Kathy Sullivan 2 @ Fri Aug 21, 2009 at 07:21:24 AM CDT

[ Parent ]

Not what I meant (0.00 / 0)

It's not OK -- it's far from OK. However, it is also patently absurd, and therein lies the Yankees suck analogy -- the Yankees clearly, demonstrably, do not suck. And the level of harm done, I'd argue, is roughly comparable.

I am not minimizing the statements, but I defend their right to exist.

For what it's worth, I disagree -- "Yankees suck" is specifically designed to harm Johnny Damon, Alex Rodriguez, and all the others. I think we can agree on its effectiveness.

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by: JimC @ Fri Aug 21, 2009 at 08:29:13 AM CDT

[ Parent ]

Very different (0.00 / 0)

My last comment on this topic is, there is a huge difference between calling a specific woman a psychotic, a whore, and a liar, and making a generic comment about a baseball team.  The level of harm is hugely different. One is a comment on the team's overall baseball ability, the other is a description intended to attack the personal character of the woman by calling her a crazy lying slut. If you don't see the difference, well, whatever.

 



"When you get to the end of your rope, tie a knot and hang on."  Franklin D. Roosevelt    

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by: Kathy Sullivan 2 @ Fri Aug 21, 2009 at 09:44:02 AM CDT

[ Parent ]

I do see the difference (0.00 / 0)

But to me the issue is free speech. The worst forms of speech have to be protected, or the best forms of it are at risk.

Again, I don't dispute that Google -- technically -- has little or no obligation here. But I think they should feel obligated to defend free speech.

Thanks for answering my questions. I see your point, but I think the issue is broader than one person insulting another.

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by: JimC @ Fri Aug 21, 2009 at 10:21:37 AM CDT

[ Parent ]

one last comment (4.00 / 4)

I am breaking my own promise, but what you said just explained the problem you and I are having. Defamation is not a matter of insulting someone.  And that is why defamatory speech does not have the protection given to insulting speech.  It is one thing to call someone ugly - that is an insult.  It is another thing to call the person a lying, crazy, prostitute.  Questions of opinion versus specific factual allegations which are not true.




"When you get to the end of your rope, tie a knot and hang on."  Franklin D. Roosevelt    

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by: Kathy Sullivan 2 @ Fri Aug 21, 2009 at 11:20:41 AM CDT

[ Parent ]

Google did defend it (4.00 / 2)

They refused to release the name.  A judge ordered them to do so because there is a legitimate civil issue for a court to decide over the harm this speech caused.  That seems pretty reasonable to me.  If you are attacks are suitably vicious (or law-suitably vicious), you might not get to be anonymous.  

(I pause here to re-read this post to make sure I'm not being libelous or slanderous.)

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by: kite @ Sat Aug 22, 2009 at 21:02:09 PM CDT

[ Parent ]

OK (0.00 / 0)

I'm a little unconvinced about the surrender of anonymity, though. What's the standard, and who sets it?

Do you have a link for the Google stuff?

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by: JimC @ Sun Aug 23, 2009 at 08:32:01 AM CDT

[ Parent ]

i was reading your quotes (4.00 / 1)

i inferred the court order, but google's refusal is the second sentence in your quote.

Cohen had asked Google for the information, so she could sue the author for defamation. Google had refused...

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by: kite @ Sun Aug 23, 2009 at 12:26:58 PM CDT

[ Parent ]

and just as a followup (4.00 / 1)

If I'm ever mentioned in a UL story, and one of the anonymous little commenting trons attacks me the way they attack, from a position of self-perfection, the subject of almost any UL story, even the most tragic, then I like the idea of using the courts to sue for slander and pulling them out of their anonymity.

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by: kite @ Sun Aug 23, 2009 at 12:31:40 PM CDT

[ Parent ]

I see (0.00 / 0)

I still see Google as caving. They took down the blog immediately, and didn't mount a counteroffensive.

I know I'm asking too much of them, but I stand by it.

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by: JimC @ Sun Aug 23, 2009 at 13:04:54 PM CDT

[ Parent ]

This is a related but distinct issue of the amount of privacy lost in interactons with Google and other net companies. (4.00 / 3)

We voluntarily give them enormous amounts of personal information and rely upon the kindness of strangers to protect our privacy. Far stronger rights of privacy for internet transactions need to be created.

If an evil force wished to create a program of Total Information Awareness, they might want to start with a commercial entity that kept track of every search request made; provided a free mail service where all communications were maintained and retained by  the corporation and not by the consumers; kept track of every time someone sought directions; etc.

Much of what Google does might be done with benign purpose-- that doesnt change the fact that it's capabilities are susceptible to being abused severely and that legislative action is needed to give force to the fourth and fourteenth amendments guarantees of privacy in the brave new world in which we live.


"But, in the unlikely story that is America, there has never been anything false about hope." Si se puede. Yes we can.  

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by: Paul Twomey @ Fri Aug 21, 2009 at 05:29:35 AM CDT

[ Parent ]

Google once had a central credo of "Don't be Evil" (4.00 / 3)

but it became a publicly held corporation and agreed to change its central credo to "Maximize Shareholder Value."

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by: elwood @ Fri Aug 21, 2009 at 05:32:48 AM CDT

[ Parent ]

The problem isnt so much their motivation as their power and the fact that they can be manipulated. (4.00 / 1)

The Shadow Factory, by James Bamford, presents a telling picture of how easily all but one of the telephone communications companies gave over access to all domestic calls to the government. IIRC,  only one company  resisted, and its CEO soon found himself on the wrong side of an indictment.

"But, in the unlikely story that is America, there has never been anything false about hope." Si se puede. Yes we can.  

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by: Paul Twomey @ Fri Aug 21, 2009 at 10:18:31 AM CDT

[ Parent ]