Mickey Kaus Discovers Section 230

by Derek Bambauer

Tuesday, July 07, 2009 at 12:10 PM EDT

Yep, it’s all Section 230, all the time here at Info/Law! Makes for a nice change from filtering. Mickey Kaus writes about the threat by Sarah Palin’s attorney to sue anyone defaming her, and also those who republish such defamation. He’s astonished to learn that Section 230 could shield him and other bloggers. (I’d presume that Palin’s attorney also knows this, and is ignoring it for the sake of a stronger-sounding threat, but you never know.)

I don’t want to be harsh about Kaus - Section 230 is a little obscure - but I think any blogger, and especially one who’s a lawyer, should have some familiarity with it. (Citizen Media Law Project has a great summary of its effects, for example.) Kaus goes on to list five observations, which merit a bit of comment:

1. “lawyers for big journalistic outfits (like the Washington Post, which owns Slate) won’t require blogs to be edited.” Yep. Even some editing may pass 230 muster - see Batzel v. Smith.
2. “Most bloggers themselves are probably poor enough to be judgment-proof.” Also true, at least until Bill, Tim, and I land that lucrative Nike contract.
3. “unverified undernews would now have a prominent, semi-official, de facto-sanctioned home.” Yep - see AutoAdmit.
4. “Are they really going to apply this to organizations that pay freelance bloggers for their submissions?” The FTC doesn’t think so. Bill and I have been trying to figure this out.
5. “What about repeating these protected-by Sec. 230-but-unverified blog allegations in the core MSM?” Ah, the joys of cyberexceptionalism! A blogger posts something saying, “Sarah Palin resigns due to threats from wildlife sick of being shot at from helicopters.” The Boston Globe’s Web site republishes it - they’re immune under 230. The Boston Globe publishes exactly the same content in its print edition - no immunity. (They’ve got to depend on NYT v. Sullivan rather than the 230 shield.) So, the MSM has to be careful about how it deals with Web rumors, at least if they’re going to circulate them offline.

Kaus then confidently predicts Congress will amend the statute (”"But I find it difficult to believe that the broad web-site-protecting reading of Section 230 will hold up… When Congress sees how that phrase has been interpreted, it may (as they say) revisit the issue”). Um, no. It’s been around since 1996, and I know of no serious effort to amend it since. Scholars keep putting up alternatives, but Congress seems quite happy with Section 230, even when it gets interpreted in ways that prevent children who are sexually assaulted from recovering against the on-line sites where they met their assailants. If Congress isn’t going to help the kids, it’s not going to be too worried about Palin’s press image…

This article originally appeared on Info/Law.