Thursday, September 28, 2017

Cato holds a day-long "The Future of the First Amendment" symposium; Some discussion of Section 230 and Backpage

Today, I attended the all-day session at the Cato Institute, “The Future of the First Amendment”.

Cato’s basic link giving the names of all speakers and their sub-topics is here.  There were four panels.  Eugene Volokh, of UCLA Law School, gave the keynote speech at lunch.
There was so much material that it will take several postings on different blogs and different times to cover everything.  College students actually get credit for attending these and writing papers on what is said. 

Let’s talk about Eugene Volokh’s speech, “Free Speech, Libel, and Privacy in the Internet Sge”.  He first started talking about how defamation works on the Internet.  In print, usually a defamatory statement tended to be forgotten, if in a newspaper (in a book was more serious).  But on the Internet the damage to reputation may be permanent  And the speaker, unlike an established book author or newspaper, may not have deep pockets, since anyone can self-publish easily.

 So the tendency Is for states to try to criminalize libel with court injunctions against the speaker, which may be enforceable with contempt sentences. The broadest injunctions could mean never mentioning the subject again on the Internet (even in a non-defamatory manner, such as in a performance review of an artist). 

I popped the question on Section 230 being weakened by Backpage.  Volokh said that the “knowingly” standard would probably be applied, which would mean that service providers don’t have to pre-screen material, but many fear that other forms of damaging speech will be added, as with state laws. Volokh explained the concepts of "utility provider", "publisher", and the intermediate stage of "distributor" of content. 

Volokh also talked about the idea that fake news could be viewed as libel sometimes, but usually governments don’t want to apply defamation law that way.

In the last session, Danielle Keats Citron, from the University of Maryland School of Law, talked about “extremist speech and compelled conformity”, but she also talked about Section 230, as there needing to be a way to balance “Good Samaritan” speakers against “Bad Samaritans”. 

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