The Volokh Conspiracy

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Free Speech

Florida Judge Argues That § 230 Is Beyond Congress's Power


White v. Discovery Communications, LLC, decided Wednesday by the Florida Court of Appeal, rejected a man's libel claim against Netflix, on jurisdictional grounds (stemming in part from a particular procedural feature of the case), and against Microsoft on § 230 grounds. The facts are interesting, though largely beside the point for this post:

[Nathaniel] White sued various nonresident defendants for damages in tort resulting from an episode of a reality/crime television show entitled "Evil Lives Here." Mr. White alleged that beginning with the first broadcast of the episode "I Invited Him In" in August 2018, he was injured by the broadcasting of the episode about a serial killer in New York also named Nathaniel White. According to the allegations in the amended complaint, the defamatory episode used Mr. White's photograph from a decades-old incarceration by the Florida Department of Corrections. Mr. White alleged that this misuse of his photo during the program gave viewers the impression that he and the New York serial killer with the same name were the same person thereby damaging Mr. White….

[Mr. White's] complaint … alleged that Microsoft used search engines "through the internet or any other internet service" to make the defamatory statements available to others. According to paragraph 50 of the amended complaint, Microsoft's use of search engines and other internet services made it, and certain other defendants, "information content publishers." Mr. White sought to hold Microsoft liable for publishing the allegedly defamatory episode….

And here's the reasoning of Judge Robert Long's concurrence:

I concur with the Court that under section 230(c)(1), Microsoft cannot be treated as a publisher of the defamatory statements in this case. But if section 230 did not exist, Microsoft may be liable under Florida law for republishing the defamatory material. See Doe v. Am. Online, Inc. (Fla. 2001) ("[E]very repetition of a defamatory statement is considered a publication.").

I question section 230(c)(1)'s constitutionality as applied to state defamation law. 47 U.S.C. § 230(e)(3) ("No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."); Doe (holding section 230(c)(1) preempts state defamation law)….

[The Commerce Clause] gives congress the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution" its authority to "regulate Commerce with foreign Nations, and among the several States." The question, then, is whether the original public meaning of the federal authority to "regulate Commerce … among the several States" conveyed the power to nationalize state common law defamation actions.

Defamation actions were undoubtedly a matter of state common law at the founding. The Supreme Court recognized long ago that "there is no federal general common law." Erie R. Co. v. Tompkins (1938). The only federal common law that survived Erie were rules of decision applicable to "federal questions [that] cannot be answered from federal statutes alone." This necessarily put defamation law squarely with the states. The federal government "is acknowledged by all, to be one of enumerated powers" and all other powers were reserved to the states.

It borders the preposterous to conclude that, at the time of ratification in 1788, the people understood the so-called commerce clause to be a vehicle for stripping the states of the power to police defamation. "The Clause's text, structure, and history all indicate that, at the time of the founding, the term 'commerce' consisted of selling, buying, and bartering, as well as transporting." Gonzales v. Raich (2005) (Thomas, J., dissenting) (internal quotation marks omitted); see also United States v. Lopez (1995) (explaining the importance of "the distinction between what is national and what is local" in considering the commerce clause and to avoid the creation of "a completely centralized government").

The internet, and related e-commerce, can certainly be interstate in nature. But the commerce clause was not intended to nationalize the whole of America law. Areas of law that were understood to be reserved to the states, were not enumerated in the Constitution, and are not directly related to the buying, selling, or transporting of goods and services were plainly not intended to be subject to federal regulation.

I'm skeptical of this analysis: Even if the Court wanted to reconstruct the Commerce Clause as being limited to regulations of genuinely interstate commerce, interstate commerce is precisely what Microsoft is engaged in—it's providing commercial services on an interstate basis, the modern equivalent of "transporting … goods and services" across state lines.

Just as an interstate network for commercial shipping of newspapers would have been commerce among the several states in 1787, so the commercial-advertising-supported interstate transmission of information through electronic means would be as well. Under this more traditional view of the Commerce Clause, it may be that purely local defamation (e.g., me slandering someone in person in Los Angeles, or perhaps even libeling someone by publishing something in a local newspaper distributed in California) would be immune from federal control. But Internet distribution through a commercial service, a quintessentially interstate (and international) medium would be well within Congress's power, under the Commerce Clause.

Still, perhaps I'm mistaken; and in any event, I thought I'd flag the opinion for our readers, since it's noteworthy that this appellate judge is taking this view.