Free Speech

Facebook Posts Lewdly Insulting Elected Official Are Criminally Punishable (at Least If They Relate to a Private Dispute)

Such speech, whether about elected officials or others, is punishable, the court held, if it "[does] not express social or political beliefs or constitute legitimate conduct" and "could only serve to harass, annoy or alarm the complainant."

|The Volokh Conspiracy |

In Commonwealth v. D'Adderio, a Pennsylvania nonprecedential appellate decision handed down last week, Kelly Marie D'Adderio posted several items on her Facebook page about Maria Memmi, D'Adderio's ex-husband's current wife and an elected member of the Derry Township School Board:

"Dear Miss Maria Memmi, you were a life-long friend of mine, my son's Godmother even. The day you crossed the friendship line and married my ex was the day you exposed your true colors. Ironically, that was the least of my concerns. Sadly, I find some pleasure that he cheated on you. I kind of feel you had it coming anyway. You seem obsessed with playing mommy to my kids. Let's see how that works out for you. #slouchback #truefriend #hunchcunt #pretendmom #hecheated."

"Dear Derry Township School Board Member, the board president was notified about you turning a blind eye about drug use in my home by some of your students. After being notified, he called it a family matter. That's fine. I would like to see what the PSBA thinks. If they think it's a family matter, then I will let it rest."

Matters deteriorated further:

Ms. Memmi, who did not have a Facebook account at the time, became aware of the posts later that day when her stepchildren showed them to her. Ms. Memmi thereafter reported the posts to Detective Robert Matthew Dotts of the Derry Township Police, who in turn contacted Appellant and suggested that she take them down. Appellant did not follow this suggestion. She continued to post increasingly offensive comments throughout the weekend, referring to Ms. Memmi as "hunch cunt" and "whore," questioning the paternity of Ms. Memmi's minor daughter, and suggesting that Ms. Memmi was carrying on an inappropriate relationship with the detective….

[Appellant's additional comments, posted on Facebook in the following days, included:] "Dear Little Memmi Girl, [referring to Ms. Memmi's 9-year-old daughter,] who is your daddy? The entire town is requesting a paternity test. Many others have told me Phil [D'Adderio] is your daddy. What is the truth? Call the popo hunchback."

"Dear hunch cunt, that's what Phil called you. LOL. You're fat, gross, and ugly. You can arrest me. I really don't care as long as I get the truth out."

"Haha, hunch cunt called the police. I thought you weren't on FB. You whore."

"Dear hunch cunt, talked to the detective. Are you sucking his cock? After all, he is a cutie patootie."

"When you ride Phil's ginormous cock, do you ever think of the last pussy it was in? I would."

D'Adderio was then prosecuted for violating the state criminal harassment statute:

(a) Offense defined.—A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person: …

(4) communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures[.]

The "complaint alleged that Appellant directed multiple Facebook posts to Ms. Memmi 'that were vulgar and inflammatory,' and Appellant 'called [Ms. Memmi] derogatory names, questioned the paternity of her child, and challenged her to pursue legal prosecution.'" D'Adderio was convicted and sentenced to "twelve months of probation, one hundred hours of community service, plus fines and costs." And the appellate court affirmed, rejecting D'Adderio's defense:

Appellant insists that criminal liability cannot attach to lewd and lascivious speech "about" another person, because such speech is constitutionally protected…. "Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument." …

Appellant's Facebook posts did not express social or political beliefs or constitute legitimate conduct. Rather, Appellant made lewd comments, including sexualized language and references to the complainant's sexual activity, which could only serve to harass, annoy or alarm the complainant…. Appellant's comments are not entitled to First Amendment protection, regardless of whether the posts were "to" or "about" the complainant….

Section 2709(a)(4) requires an intent to harass, and it seeks to preclude communications lacking some legitimate purpose. As such, the statute does not punish constitutionally protected speech, and the statute is not facially overbroad….

One of the judges dissented, but without an opinion.

Here's my thinking:

1. I agree that there's nothing of value or substance in D'Adderio's barrage of insults; but the statute, as interpreted by the court, would equally jeopardize a wide range of "lewd" public criticisms of political officials—so long as a prosecutor and a jury conclude that the criticisms "[do] not express social or political beliefs," aren't "legitimate conduct," and are intended "to harass, annoy or alarm."

The insults in Hustler Magazine v. Falwell, for instance, might well qualify—Falwell was portrayed as having had sex with his mother in an outhouse, which may well be seen as "sexualized language" and are certainly "references to the complainant's sexual activity"—and they don't really discuss any "social or political beliefs" (at most, they do so by implicitly mocking a political figure, but Memmi was an elected official, too). D'Adderio's insults are more explicit than Hustler's, but the court doesn't explain how much is too much. All we know is that some "lewd" insults of politicians (among others) in Pennsylvania are criminally punishable.

The decision thus strikes me as incorrect, despite the repulsiveness of the speech involved; nor is there any First Amendment exception that would support the court's reasoning (see my Northwestern article for more on this).

2. The nation, to be sure, won't stand or fall based on whether one can lewdly insult people, even politicians. Perhaps Hustler was wrongly decided, or perhaps it was rightly decided but only because the law there (the intentional infliction of emotional distress) wasn't limited to sexual insults. Perhaps even Cohen v. California, which recognized a general right to display vulgarities in public places, was incorrect, and FCC v. Pacifica Foundation, which upheld a ban on vulgarities on broadcast radio and television, should be applied more broadly. I think Hustler and Cohen were right and Pacifica was wrong, but reasonable minds may differ; or maybe vulgarities about particular people should be treated differently from vulgarities about public policy or other matters (such as the "Fuck the Draft" jacket in Cohen or Carlin's routine in Pacifica).

But at least we should recognize that "criminal harassment" statutes such as the one here, whether broad or narrow, can apply—if they are upheld against First Amendment challenge—to speech about public officials as much as to speech about private individuals. And we should recognize that they jeopardize all public sexual insults (or, in those statutes that lack a limitation to "lewd speech," all insults), and not just ones that are as extreme as those in D'Adderio.

NEXT: From the Archives: July 2019

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  1. Wow Prof. Volokh, I thought you would take a stronger position against this criminalization of speech.

    There were no direct threats or fighting words; the speech was not “integral to criminal conduct” (i.e. there was no extortion, etc.), and also there were no real facts alleged – only opinions.

    I can see this being overturned in D’Adderio’s favor.

    1. Sorry — I’d thought I’d made clear that I thought the decision was wrong, but now I realize I hadn’t; I’ve added a short paragraph at the end of my item 1 to make this clear.

  2. Totally oblique to this discussion, but I did have to consult Urban Dictionary for “hunch cunt.” To do you all a favor, apparently it is a insult related to a woman having a protruding vagina, but separate from a camel toe, apparently.

    1. I googled it and only got 2,500 hits, with this posts about this case being the third.

      1. Heh. Did you have safe search on when you did it? I didn’t, and that was a mistake.

        1. Comment made my morning 🙂

  3. *shakes head at the state of permitted discourse*
    Cohen was wrongly decided.

  4. Eugene,would your analysis be different if Memmi weren’t a public official? I ask because at first blush it struck me the fact she was a public official played no role in this case. Instead, it seemed to me the insults were in effect one private party attacking another private party, who incidentally was a public official.

    1. If I were cynical (which of course I am not), I’d suggest that the fact that the insults were against public officials would make prosecution more likely.

    2. Yes, because a school board member is about as low a level public official as there is, and the harassment was unrelated to her duties as an elected official.

  5. Harassment is harassment. I’m not sure it should be protected speech. (Yes, I know, lawyers are primarily arguing over whether it is or is not protected, not over whether it should or shouldn’t be.)

  6. This to me it seems clearly there was an “intent to harass, annoy or alarm another, the person: …” and no other purpose.

    I wonder whether using the standard expressed above it is ever possible to legislate against cyber bullying. That may or may not be a good thing.

  7. “I agree that there’s nothing of value or substance in D’Adderio’s barrage of insults; but the statute, as interpreted by the court, would equally jeopardize a wide range of “lewd” public criticisms of political officials—so long as a prosecutor and a jury conclude that the criticisms “[do] not express social or political beliefs,” aren’t “legitimate conduct,” and are intended “to harass, annoy or alarm.”

    Your elements appear to be a bit different than the Pennsylvania Superior Court’s articulation. In reviewing the constitutional challenge to this law the Court cites its own prior opinion, where it interpreted and upheld a prior version of the same statute.

    “In enacting 18 Pa.C.S. [§] 2709(3), our legislature did not intend to proscribe isolated acts which would be of only minor annoyance to the average person, or which are constitutionally protected. The statute requires . . . acts which would seriously offend, we find, the average person; it requires the fact finder to infer a specific intent on the part of the accused, and it specifies that the conduct must be of a non-legitimate nature—conduct which is not constitutionally protected.”

    Reasonable people may disagree with the law, but the way you phrase the elements (as support for your overbreadth argument) leaves out that the conduct not be of only minor annoyance to the average person, but rather would “seriously offend” the average person. Perhaps this doesn’t change anything, and the statute would still cover a “wide range of lewd public criticisms” (but you never explain how wide is too wide!).

    Or, maybe the community standards in Dauphin County, Pennsylvania, serving as the context in which the jury rendered its verdict, are different than the ones in Los Angeles, California, residing 2,600 miles away.

    1. Assuming that the case should be decided based on Memmi being a public official, and also assuming you are correct that the statute should be interpreted to only include acts which would seriously offend the average person, I nonetheless think Eugene’s overbreadth argument is supported by Hustler.

      In Hustler, the Court held that to succeed on a claim of intentional infliction of emotional distress, a public official had to show the defendant made a false statement of fact. Now perhaps the Court went too far and could have reached the same result on the basis of the attack being satire, leaving open the possibility that some opinions directed at public officials could be actionable as intentional infliction of emotional distress. But instead, the Court applied the same rigorous standard used for libel from New York Times Co. v. Sullivan.

      1. I think we read the opinion from very different perspectives then. My approach towards it was not “I see fact X as relevant therefore the court should have decided Y.” Rather, i try to read it to understand what the court parties framed as relevant, and then court’s reasoning from there. The sub-title of EV’s post states:

        “Such speech, whether about elected officials or others, is punishable, the court held, if it “[does] not express social or political beliefs or constitute legitimate conduct” and “could only serve to harass, annoy or alarm the complainant.”

        From a fact pattern to legal application framework (see generally “How To Read a Legal Opinion” by Orin Kerr), claiming that the courts “holding” included the application of the speech in question to an elected official is incorrect. It is factually true since Memmi was, at the time, an elected official. But that was never once mentioned in the substance of the opinion. Memmi may have also been been other things during the period in question, things that may have had a legal significance if introduced, but they weren’t. Nor did the lawyers for either party appear to frame the legal issue around Memmi’s role as an elected official. The court did not hold anything as it pertains to lewd speech about an elected official.

        If a student was called on to give the holding of the case and said that court held that an individual could be criminally punished for lewdly insulting speech about an elected official, I think the response would be “where does the court say anything about an elected official?”

        If you were defense counsel in a similar case involving an elected official, where you framed the issue around your client being an elected official, and the states’ attorney argued that, while non-binding, Commonwealth v. D’Adderio held that the law applies even towards elected officials, would you concede the point? According to professor Volokh, the states’ attorney is correct.

        1. I would assume that mutual friends were alerting Memmi to the posts, especially as later posts were directed to Memmi as an open letter of sorts.

          1. Bah, hit wrong reply button. That was supposed to be to James Pollock below.

          2. They said it was the kids who alerted her. Does it matter who did so?

        2. I agree nothing in the writing explicitly addresses that, but the court referenced an independent review to ensure the conviction isnt a forbidden intrusion on free speech. It’s unclear how far ranging that inquiry was/is.

        3. I agree with you that the opinion could be read that Memmi’s status as an elected official played no role. And at first blush, that sounds reasonable to me. However if I was the defense attorney, I would on appeal argue the court incorrectly did not take into account Memmi’s status as an elected official.

          1. Does the harassment statute have an “it’s OK if the target is an elected official” clause in it? Because if it doesn’t, what are you hoping to accomplish by pointing out that the harassed person also happens to be a public official?

      2. “Assuming that the case should be decided based on Memmi being a public official”

        I don’t know that this assumption holds water. She isn’t being attacked for being a public official, she’s being attacked for being the ex-husband’s new wife.

  8. I have to disagree with this ruling for one reason. This was posted to a private Facebook page. One that Memmi does not have access to. It cannot be harassment if the speech is not communicated to the harassed. Now, it might be libel, though a lot of this is clearly opinion. While she is a public figure, almost none of this is relevant to her position on the school board.

    However, if she did submit false reports of Memmi inviting students to use drugs in her home (the wording is unclear), as the 3rd paragraph indicates, that is a major game changer, and agree definitely constitutes criminal harassment. If these reports are true, then it’s simple reporting and that obviously isn’t a problem.

    1. “One that Memmi does not have access to.”

      In point of fact, she did have an avenue of access to it.

      1. An indirect avenue through someone else. By definition. Harassment is directed at a person. This is private ranting on her own page. This is comparable to speaking foul things about someone in your own home and then one of your guests relaying the complaints. It could be slander or libel. However, since it isn’t sent to that person, and they must go out of their way to access this defamatory activity, it cannot be harassment more or less by definition.

        1. I don’t buy it. She refers in the course of the harassment to the fact that she knows the target has access to it. Kind of blows your argument away like smoke.

          1. For harassment purposes, what difference would it make if the “target has access to” an online message? The victim doesn’t need to read somebody else’s facebook page. Can I harass you by posting comments on my own blog?

            1. “For harassment purposes, what difference would it make if the “target has access to” an online message?”

              If I send a whole bunch of random insults to Ludwig von Beethoven, it can’t be harassment because he’s dead and I know it. There’s no way he CAN be harassed, so there’s no way I could have INTENDED to harass him.
              If I paint up a bunch of signs with harassing messages for a Masai tribesman, and set them up on the side of I-40, that’s not harassment because Masai tribesmen rarely travel that corridor.
              The point that was offered is that if there’s no way for the messages to reach the target, then they’re harmless venting rather rather than harassment. That’s true enough. If I write a bunch of letters full of harassing content to somebody and then never print them out, and never send them, there’s no liability. There’s no path from sender to (non-) receiver, so no harassment.
              BUT, in this case, the messages DO reach the target, and the harasser knows this, and chooses to continue. So the “harmless venting” is not so harmless, and the venting can become harassment.

              1. Knowing the recipient of the message has access to it is a necessary condition of harassment, but it isn’t sufficient. If I put the sign on my property, knowing that the victim will drive by and see it, it still isn’t harassment. It’s my property, I can say on it what I want. It’s only when I call the victim, or show up at his work, or stand outside his house, that it becomes harassment.

                Do you think I can sue you for harassment because of things you post on this website?

                1. “Do you think I can sue you for harassment because of things you post on this website?”

                  No. Harassment is criminal law, not tort. So you have to convince your DA that you’ve been harassed, and I don’t think you can do that.

  9. Can I still refer to elected officials as syphilitic goat-fuckers?

    1. Once. When you show up at their office with your megaphone every day for a month, you’re probably going to come to regret it.

      YMMV.

  10. If you haven’t had at least one girlfriend in your life like D’Adderio are you even living?

  11. I can’t figure out from the description whether this was published commentary, or private.

    If it was published, then once again, it isn’t something the law is prepared to cope with, and it would have been far better to do what was done for centuries previously—let private editing take care of it. To do that, all you have to do is repeal Section 230, and make internet publishers liable for everything they publish. Until that happens, the default will be that every scurrilous private attack, every libel, every copyright violation, every Nigerian scam, and every foreign election interference will get published without hindrance. Very little of it will ever be corrected, and, once published, none of it can ever be effectively withdrawn.

    If to protect themselves from libel claims, internet publishers had to read everything before publishing it, whether the scurrilous stuff described in the OP was or was not libel, or criminal harassment, or something else, would be irrelevant. It wouldn’t get by a private editor in any case.

    Eventually it is going to dawn on even free speech utopians that the internet—as long as it runs without private editing—has changed the practical need for legal oversight of speech. That is a bad thing, but unavoidable in the face of obstinate determination to continue enabling publishing without editing—a novel situation to which the law of speech is not accustomed, and with which it has not been designed to cope.

    It is understandable that many bystanders would equate free speech, with which they are familiar, with publishing, with which they are not. They are not at all the same. Publishing has far greater power to do private damage, and to disrupt society, than does personal speech.

    For centuries the law dealt with that disparity by avoiding it—through the expedient of handing off publishing responsibility to private editors, and holding them responsible. Now the private editors are gone, and the law is at a loss.

    It hardly seems possible that society will choose to endure today’s status quo. Either publishing without editing must end—with a general return on the internet to the regime of private editing which still governs ink-on-paper publishers—or the law must be greatly and intrusively expanded to make it do what the editors used to do.

    Neither alternative will strike free speech utopians as attractive, but surely the former is far better than the latter. It is remarkable to find a problem seemingly so complex and multi-faceted which is in fact amenable to such a simple solution—repeal Section 230. All that stands in the way is public willingness to indulge utopians—and that cannot last forever. If they are reflective, the utopians themselves may fairly soon notice that cases like this one present urgent problems which society cannot afford to ignore—and for which the utopians do not have solutions.

    1. ” To do that, all you have to do is repeal Section 230, and make internet publishers liable for everything they publish.”

      Fuck, no. That’s the end of being allowed to comment publicly on the Internet.

      1. Why? It was never the end of being able to comment publicly in print. What are you worried about?

        1. “What are you worried about?”

          Idiots like you being put in charge of important decisions.

        2. Why? It was never the end of being able to comment publicly in print.

          Yes it was. And why are you being disingenuous? The entire point of your argument is to prevent this speech.

      2. James Pollock, you don’t like private editing. What’s your preference, government censorship? Utopianism?

        What’s wrong with exploiting internet technology to improve and expand the scope of publishing as it was previously practiced? That is a system which proved over centuries that it could work and endure—indeed, it was widely regarded as one of the principal ornaments of civilization.

        Why do you want to pitch that out in favor of the kind of swill the OP offers, or in favor of monopolistic control of the national publishing enterprise, or in favor of the practical abolition of copyright, or in favor of scams to bilk the credulous and senile? What makes you want a world where absolutely nothing published can be believed, because technological tricks beyond practical analysis preclude verification, except by independently researching from scratch the alleged facts? That is where today’s internet is headed. It will get there pretty quick.

        Do you suppose public life and self-government can endure while almost no one has any notion what is true and what is false?

        Internet utopians seem to have no notion of the stakes they are playing for.

        1. “James Pollock, you don’t like private editing.”

          Tell me more about what my opinions are.

          “What’s wrong with exploiting internet technology to improve and expand the scope of publishing as it was previously practiced?”

          Nothing. Which is why I think you’re an idiot for wanting to repeal it.

          1. James Pollock, if you don’t want to engage my questions, why not just say so, instead of pretending to change the subject.

            But let’s try once more, with just three questions:

            If you do like private editing, what is your objection to using private editing instead of using government censorship?

            Or do you suppose that is a false choice? If so, what do you propose to do to turn aside the growing pressure to censor the big internet platforms?

            1. ” if you don’t want to engage my questions, why not just say so, instead of pretending to change the subject.”

              You started out by badly mis-stating my opinions, had that pointed out for you, and now YOU want to lecture ME about being unwilling to engage?

              “If you do like private editing, what is your objection to using private editing instead of using government censorship?”

              False dichotomy.

              “what do you propose to do to turn aside the growing pressure to censor the big internet platforms?”

              Telling people in favor of censorship to fuck off.

              Fuck off.

    2. “…let private editing take care of it.”

      The comments were privately edited. By D’Adderio. She read it before she published it.

      “It is remarkable to find a problem seemingly so complex and multi-faceted which is in fact amenable to such a simple solution—repeal Section 230.”

      It’s remarkable how many times you repeat this stupid fucking position, despite it being explained to you dozens of times. Before Section 230, distributors were not liable at all. Case study: CompuServe took the position that it would never regulate what users posted on its services. Prodigy took the opposite approach. CompuServe was held to be a distributor (like a book store) and thus not liable. See Cubby, Inc. v. CompuServe, Inc.. Prodigy was held to be a publisher, and liable. See Stratton Oakmont, Inc. v. Prodigy Services, Co.

      Repeal of 230 won’t do away with Internet distributors. It will simply ensure that Facebook does not police anything it distributes.

      1. You and Lincoln’s 5-legged dog. A distributor is not a publisher, and Facebook is a publisher. Those are facts which calling a tail a leg in Section 230 can’t change.

        The methods and effects of the activity define which it is. Do you assemble an audience? Do you attract contributors who want to reach that audience? Do you sell advertising to businesses which want that audience’s attention? Those are publishing activities, and they produce different effects than do distributing activities—which do none of those things.

        It is the effects which define the activity, and define the consequences. The consequences are what society must cope with, either through law or private editing.

        Next time you take it on yourself to “explain” something, try practicing it first. It will give you a chance to discover what you are talking about.

        1. “A distributor is not a publisher, and Facebook is a publisher. Those are facts which calling a tail a leg in Section 230 can’t change.”

          You’re the idiot who thinks repealing Section 230 will magically transform online distributors into publishers. CompuServ was not a publisher before Section 230 came into existence, because CompuServ elected not to edit anything it distributed.

          “The methods and effects of the activity define which it is.”

          Right, and the law had a particular way of defining what publishers and distributors were pre-230, and it didn’t conform do your strange definition.

          “Do you assemble an audience? Do you attract contributors who want to reach that audience?”

          Like… book stores?

          “Do you sell advertising to businesses which want that audience’s attention?”

          Or just sell the content itself! Like a book store. (Book stores also advertise.) Do you think book stores were publishers under pre-230 law? What about CompuServ?

          Why don’t you explain why a future Facebook that edits no content but distributes without review, is any different than a book store?

          1. NToJ, that question is long-since decided, by Section 230. What Section 230 shows is that Congress supposes it can grab the hands on a clock, and drag them around to make time change. That is what you say Congress did, when it passed Section 230. And you are fine with that.

            Okay, so be it. What Congress can do, Congress can undo.

            So your task isn’t to assert paradoxically that something Congress has shown it has the power to change is not changeable—or more foolishly still, to insist that a change Congress actually made has always been set in stone, and the way of the natural world. Your task is to justify the practical effects of the change Congress enacted, and explain why the change should not be reversed.

            Why is it better that Congress enacted the practical abolition of the notion of copyright? Why is it better that Congress abolished the legal foundation which enabled legal control of defamation? Why is it that the notion of media accuracy, and the notion of truth in the nation’s public life, are better sacrificed to achieve the goal of putting every malicious fool with a keyboard at liberty to publish the kind of swill you see in the OP above? Why is it better to encourage by law a business model which makes monopolism in publishing all but unavoidable? Most pointedly, why isn’t it lunacy to be demanding government censor internet publishers (or bookstores, if you insist) in the name of enhancing freedom of the press?

            Literally centuries of experience have shown private editing is the efficient means to accomplish publishing, while avoiding all those ills. Private editing especially counters the worst of them, which is the government censorship now actually being widely demanded among the public, and actually being proposed by at least several members of Congress.

            Maybe the dazzling prospect of a new technology which seemed to promise unlimited freedom did justify a utopian experiment, to find out if the promise could be realized. Why can’t you understand now, with the results of the experiment evident, that the many ills internet publishing is actually delivering are new constrictions on that freedom, not expansions of it? Utopianism is always better in prospect. Why stay a utopian in the face of contrary experience?

            1. You’ve never understood what 230 was intended to do. It makes it ok for Volokh Conspiracy to edit (to any degree) without fear of being held liable as a publisher. If you repealed 230, they simply wouldn’t edit anything. Then they’d be a distributor rather than a publisher. This place would be worse for it, but that’s apparently what you want.

              Which is crazy, because you can’t see that your call for more editing (by repeal of 230) would result in less editing.

              “Why can’t you understand now, with the results of the experiment evident, that the many ills internet publishing is actually delivering are new constrictions on that freedom, not expansions of it?”

              Because you fucking suck at persuading people, and you’re just wrong? You’re also a fat hypocrite, since you continue to publish unedited comments on someone else’s website, mosying through on a daily basis the same hellscape you claim to be vehemently opposed to.

              My experience is that the internet is awesome. I like the freedom that comes with being able to post and read comments on others’ websites, which can be partially edited without ruinous liability to the websites’ owners. It’s great. The old days were horrible. I’m never going back and you can’t make me.

              1. NToJ, you are full of predictions about what would happen without Section 230. The striking thing about all your predictions is that not one of them resembles in the least anything which did happen in legacy publishing, before Section 230 was ever dreamed of. That seems peculiar.

                1. “… not one of them resembles in the least anything which did happen in legacy publishing …”

                  It’s almost like the NYT published somewhat fewer letters to the editor per day than the daily count of new posts on, I dunno, Reddit or Facebook.

                  1. Absaroka, how many letters did all the nation’s newspapers publish, in the aggregate? Given the tendency toward monopolized forums on the internet, that is a far more relevant comparison. Because now we are asking just a few internet forums to do the entire job which the nation’s ink-on-paper publishing industry accomplished previously.

                    Once you understand that comparison, you can ask how many among the letters the newspapers published were defamatory or scurrilous. Compare that total to the one you would get with a similar analysis of internet posts.

                    But of course time moves on, and today that will still be the wrong comparison. The right comparison would be a comparison of today’s monopolized internet to a de-monopolized internet, which, because of cost advantages over ink-on-paper, could be expected to offer more diversity, more outlets, and more publishing opportunities than even the entire traditional newspaper industry could offer when it was thriving.

                    1. “Absaroka, how many letters did all the nation’s newspapers publish, in the aggregate?”

                      Well, let’s think about that. Between VC/facebook/HuffPo/where ever else you post, how many posts do you do a month? So far you’ve posted 14 times just on this thread, in just a couple of days, not to mention your comments on other threads. Let’s call it 7 posts a day.

                      Back in the good olde days, how may letters to the editor did you write and have published in a typical day?

                      And relative to, say, facebook posting teenage girls, you are seriously behind the curve.

                    2. “how many letters did all the nation’s newspapers publish, in the aggregate?”

                      AT LEAST one order of magnitude fewer than all the nation’s websites.

                      “Given the tendency toward monopolized forums on the internet”

                      But FORGETTING that anyone who wants to can set up their own forum, monopolized or not, on the Internet with far lower costs to enter, and leave.

                      ” Because now we are asking just a few internet forums to do the entire job which the nation’s ink-on-paper publishing industry accomplished previously. ”

                      Where “just a few” means millions, this sounds fairly stupid.

                      “Once you understand that comparison”

                      Come back when YOU understand that comparison.

                2. So pre-230 CompuServ wasn’t hosting unedited content on its servers and still not being held liable as a publisher? Check 776 F. Supp. 135.

                    1. If you google ‘776 F. Supp. 135’ you will find links to a case called
                      Cubby, Inc. v. CompuServe Inc., from 1991 – years before sec 230.

                      At the considerable risk of saying stupid IANAL things, Compuserv’s defense was that it had no liability because it was a distributor. That argument succeeded: “because CompuServe, as a news distributor, may not be held liable if it neither knew nor had reason to know of the allegedly defamatory Rumorville statements, summary judgment in favor of CompuServe on the libel claim is granted.”

                      That was the pre-230 state of the law, and Compuserv wasn’t liable for letting people post unvetted content. What 230 did was let Compuserv et al exercise minimal editing – deleting viagra ads for example – while still retaining the distributor immunity they already had.

                      Your view of what the law was in the good olde days is wrong; if you read the decision it explains what the law at the time was.

                      (Corrections welcomed from the lawyers in the crowd)

            2. Why is it better that Congress enacted the practical abolition of the notion of copyright?

              § 230 has nothing whatsoever to do with copyright, you ignoramus.

              “230(e)(2) No effect on intellectual property law
              Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.”

              Why is it better that Congress abolished the legal foundation which enabled legal control of defamation?

              It didn’t.

              Most pointedly, why isn’t it lunacy to be demanding government censor internet publishers (or bookstores, if you insist) in the name of enhancing freedom of the press?

              It is. That’s why we keep arguing against your position, which is about government censorship. That’s what defamation is.

              1. It is. That’s why we keep arguing against your position, which is about government censorship. That’s what defamation is.

                Just for the sake of clarification, I didn’t mean that defamation itself is censorship; I meant that laws against defamation are censorship.

              2. Nieporent, do you know of any other lawyer anywhere who characterizes as government censorship the exclusion of defamation from 1A protection?

                1. Nieporent, do you know of any other lawyer anywhere who characterizes as government censorship the exclusion of defamation from 1A protection?

                  Yes. Earl Warren, Hugo Black, William O. Douglas, Tom Clark, John Marshall Harlan, William Brenna, Potter Stewart, Byron White, Arthur Goldberg, and Floyd Abrams.

                  You’ve never understood NYT v. Sullivan and its progeny, but that’s exactly what the cases are about: defamation law as censorship.

                  1. Nieporent, that’s cute, but it’s not an answer to my question, unless you are willing to assert that the 1A protects defamation. Do you?

                    1. I wasn’t being cute; I was trying to educate you. Yes, the 1A protects some defamation; that’s the entire point of the line of cases I just cited.

                      That having been said, I’m not sure why you brought up the 1A; the discussion was about censorship, not about constitutional rights. Just because something — say, obscenity — isn’t constitutionally protected doesn’t mean that banning it doesn’t constitute censorship. It’s just lawful censorship.

        2. “Next time you take it on yourself to ‘explain’ something, try practicing it first. It will give you a chance to discover what you are talking about.”

          Mr. Pot, about your description of Mr. Kettle…

          1. James Pollock, care to say more? The pot and kettle stuff seems mysterious.

            1. No more needs saying.

              1. Okay then.

                1. It needs more hearing, but you decline. But it doesn’t need any more saying.

  12. Well, at least she gave a compliment to her ex, which was unexpectedly nice of her.

    1. I noticed that too. It struck me that she was trying to get back with him.

      And good for that guy for going in the official public record to be maintained for rest of time as someone who is “ginormous.”

      1. Have either of you had your sarcasm meters calibrated recently?

        1. E-sarcasm is usually missed by about half of readers unless accompanied by a clear “sarc” indicator.

          (I made up that figure but I’ll stand by it nonetheless)

  13. Why would anyone want to give the government the power to jail people based on the government’s view that their words or expressions have no legitimate value — excluding supposedly clear exceptions such as child pornography?

    1. We don’t, which is why the First Amendment exists.

      The problem, you see, is that some Judges decide there is no such thing, and ignore it.

      1. I think you and I are making the same point.

    2. SKofNJ, do you number libel among the clear exceptions?

      1. I said allowing the government to jail people. So I was not referring to the civil wrong of libel. By the way, I’ve seen a few law review articles that contend that criminal libel statutes are unconstitutional based on recent Supreme Court case law.

    3. “excluding supposedly clear exceptions such as child pornography?”

      Which apparently isn’t clear enough to prevent the state from punishing children playing with cameras.

      1. I think that is a matter of an unanticipated consequence of a law. Those laws are not unclear. It’s a question of policy. Do you want to criminalize such conduct when it is committed by a non-adult.

        1. That’s not it. It’s more like it’s just a law that people don’t respect, like speed limits on freeways, or Prohibition.

    4. Where in the text of the first amendment is this “clear” exception made clear?

      1. The case law sets forth those exceptions, such as child pornography and “fighting words.” I don’t think those exceptions are necessarily clear, but the case law that creates them pretends that they are.
        You will note that I said “supposedly” clear.

        1. “The case law sets forth those exceptions”

          The text says “Congress shall make no law…”. It takes some pretty good sophistry to read that as “OK, Congress can make SOME laws…”

  14. This ruling is outrageous. If it stands, it bans memes.

  15. Not only is the ruling entirely unreasonable and plainly wrong from a First Amendment perspective, but the judges also neglected to ask whether the comments on the Facebook page were made privately. Different pages on Facebook have different privacy settings. When only a select few persons have access, postings have the nature of private email. Whether or not the comments were made only to a selected few ought to matter when asking if the comments were “to” or “about” the target.

    1. ” the judges also neglected to ask whether the comments on the Facebook page were made privately.”

      You don’t have to do this when the messages themselves confirm that the writer of the messages acknowledge that they know the target is reading them, and then continue to write more.

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