ACLU, EFF Urge California Supreme Court to Maintain Protections for Online Speech

Barrett v. Rosenthal
For Immediate Release: December 2, 2004

California— A Federal law protecting the free speech of internet users to post content written by others has the potential to be undermined as a result of a libel lawsuit. The ACLU of Northern California and the Electronic Frontier Foundation (EFF) have filed a friend-of-the-court brief in the case, defending Ms. Illena Rosenthal’s right to post an opinion piece written not by herself but by Mr. Tim Bolen. She is being sued by Terry Polevoy, who is criticized in Mr. Bolen’s piece, for having posted it.

In their brief, the ACLU and EFF argue that Section 230 of the federal Telecommunications Act of 1996 protects Internet publishers from being held liable for allegedly harmful comments written by others. Similar attempts to eliminate the protections created by Section 230 have almost universally been rejected, until a California Court of Appeals radically reinterpreted the statute to allow lawsuits against non-authors. The case is being reviewed by the California Supreme Court.

Lawyers for the plaintiffs argue that Rosenthal is liable because posting the comments makes her a "developer" of the information in question, and she therefore becomes the legal equivalent of its creator for the purposes of the lawsuit. If the court finds in favor of the plaintiffs, the implications for free speech online are far-reaching. Bloggers could be held liable when they quote other people's writing, and website owners could be held liable for what people say in message boards on their sites. The end result is that many people would simply cease to publish or host websites. The brief argues that "the specter of civil liability chills the speech" of Internet service providers and users, and will inevitably lead to "protective self-censorship."

"Section 230 protects the ordinary people who use the Internet and email to pass on items of interest written by others, free from the fear of potentially ruinous lawsuits filed by those who don't like what was said about them," said ACLU staff attorney Ann Brick. "The vitality of the Internet would quickly dissipate if the posting of content written by others created liability. The impulse to self-censor would be unavoidable."

"Every other jurisdiction addressing Section 230 has given effect to Congress' broad protections and Internet speech has flourished as a result," said EFF Staff Attorney Kurt Opsahl. "The Court of Appeals upset this settled law and we are simply asking the California Supreme Court to set things right."