Questions about arbitrary censorship on blogs
Questions for the great legal minds who frequently visit this blog:
(1) Suppose that a really popular blog accuses someone of, say, an infamous crime, and the blogger censors all comments that rebut the accusation. Could the blogger be sued for libel on the grounds that the censorship of the rebuttals shows "reckless disregard" of whether the accusation "was true or false" (New York Times v. Sullivan) and on the grounds that regardless of whether or not the original accusation was the result of "actual malice" (New York Times v. Sullivan), the censorship of rebuttals shows "actual malice"?
(2) Court opinions occasionally cite blogs. Suppose that the Supreme Court cites a blog visitor's comment and that the citation is decisive in deciding the case. Suppose that the blogger disagrees with the comment and decides to censor it -- along with associated comments ((in order to eliminate the context of the comment) -- because the Supreme Court cited it. Forget for the moment that the court could independently archive the original post and the comment thread (authorities citing Internet sources often fail to independently archive the source). Would such censorship be ethical or not?
In answering these questions, please keep in mind that blogs are private property and that it is always legal and proper for bloggers to do whatever they want.
(1) Suppose that a really popular blog accuses someone of, say, an infamous crime, and the blogger censors all comments that rebut the accusation. Could the blogger be sued for libel on the grounds that the censorship of the rebuttals shows "reckless disregard" of whether the accusation "was true or false" (New York Times v. Sullivan) and on the grounds that regardless of whether or not the original accusation was the result of "actual malice" (New York Times v. Sullivan), the censorship of rebuttals shows "actual malice"?
(2) Court opinions occasionally cite blogs. Suppose that the Supreme Court cites a blog visitor's comment and that the citation is decisive in deciding the case. Suppose that the blogger disagrees with the comment and decides to censor it -- along with associated comments ((in order to eliminate the context of the comment) -- because the Supreme Court cited it. Forget for the moment that the court could independently archive the original post and the comment thread (authorities citing Internet sources often fail to independently archive the source). Would such censorship be ethical or not?
In answering these questions, please keep in mind that blogs are private property and that it is always legal and proper for bloggers to do whatever they want.
Labels: Internet censorship (new #4)
posted by Larry Fafarman | 10/18/2008 12:52:00 AM
19 Comments:
If a popular blog accuses of someone of a crime, and then doesn't allow a rebut from the accused. Could that blog be sued for censorship?
No, not on the grounds of censorship, but if the blog helped destroy a person's reputation, or say his career or something like that, the blog could be sued for making a slanderous statement which was harmful.
The second question, wouldn't be realistic, where you have a court swayed by a blog visitor's comment, that would be hearsay unless there was some other evidence to back it up.
Or if the visitor's comment let's say the person was threatening to kill his wife, and he posts that in someone's blog, that would most likely be used as evidence and also might have an impact on the case depending upon other evidence.
If a blogger would censor the comment because he didn't like it for some reason, well the visitor could produce their own blog and present his viewpoint there. In court, they could use the response from that different blog.
Now let's say, the accusation was correct and the visitor did kill his wife, would the blogger be then libel for not allowing the comment to be published on the site? Answer: No. Some people behind computers tend to make wild and outrageous comments all the time.
>>>>>> No, not on the grounds of censorship, but if the blog helped destroy a person's reputation, or say his career or something like that, the blog could be sued for making a slanderous statement which was harmful. <<<<<<<
I wish I had your crystal ball that foretells how the courts are going to rule. It is quite conceivable that the courts could rule that a particular accusation by itself does not show "reckless disregard" of the "truth or falsity" of the accusation and does not show "actual malice" but that censoring rebuttals of the accusation does show such reckless disregard and actual malice.
In Red Lion Broadcasting v. FCC, the Supreme Court upheld the FCC's "personal attack" and "political editorial" rules that required that people and organizations that are directly attacked in broadcasts be given free air time to respond, but in Miami Herald Publishing Co. v. Tornillo, the Supreme Court inexplicably struck down a Florida law that was an equivalent rule for newspapers. The court's rationale (which IMO was invalid) in Tornillo was the limited comment space in newspapers, but comment space is unlimited in blogs.
>>>>>> The second question, wouldn't be realistic, where you have a court swayed by a blog visitor's comment, that would be hearsay unless there was some other evidence to back it up. <<<<<<<
"Hearsay" only applies to evidence, and I am not talking about evidence here -- I am talking about the court adopting the comment's reasoning. Some court opinions and many scholarly journal articles have cited blogs, as shown here and here. Court opinions have even authoritatively cited -- ugh! -- Wikipedia.
>>>>>> If a blogger would censor the comment because he didn't like it for some reason, well the visitor could produce their own blog and present his viewpoint there. <<<<<<
That is what I call a "let them eat cake" argument -- i.e., giving people a non-existent or inferior alternative. It should not be necessary to start a new blog -- or a new broadcasting station or a new newspaper -- just to answer a single attack. And posting a response on another blog -- whether one's own blog or someone else's -- is not going to be seen by a lot of people who read what one is responding to.
>>>>>> Now let's say, the accusation was correct and the visitor did kill his wife, would the blogger be then libel for not allowing the comment to be published on the site? Answer: No. <<<<<<
Truth may be a defense against a charge of libel, but it is not a defense against a charge of actual malice. I assert that censoring rebuttals to an accusation of a crime shows actual malice.
I wish I had your crystal ball that foretells how the courts are going to rule.
Firstly, I don't believe in crystal balls...lol Secondly, you should study more than you have so far, the patterns of the courts to get an understanding on their possible rulings.
Limited space or unlimited space doesn't matter. I am not sure if you lived during the 80's when the "fairness doctrine" was in-acted, there was a lack of opinions on the radio. There was only 75 voices, back in 1987. Since the fairness doctrine was done away with, there are now over 3,000 voices.
There was so much paper work in trying to be fair, many topics were avoided...
I don't think popular private blogs whom may attack someone for one reason or another would have to be forced to give space for the one who was accused that would be readable to most readers, not buried way down on number 200 out of 500 or so message responses.
How effective do you think that would be for a popular blog? The blog owner gets first post and the accused gets the 200th position. Most likely if that person was censored, it wouldn't make much of a difference.
The accused would have to give his response to a friendly popular blog, or make one of his own.
Another problem would be enforcement, as I recall, there are over 4 million blogs in wordpress alone, not sure how many there are in blogspot, most likely pretty many.
Hundreds of blogs could make accusations about the same person which could reach more people than one popular blog, how are you going to enforce fairness on all those private blogs? How are you going to enforce fairness in general with so many blogs?
Michael said,
>>>>> Firstly, I don't believe in crystal balls <<<<<<
A lot of commenters here -- including you -- act like they have them.
>>>>> Secondly, you should study more than you have so far, the patterns of the courts to get an understanding on their possible rulings. <<<<<<
How can you assume, bozo, that I have not studied more than you think I have studied so far? Here is a long article I wrote about the "patterns of the courts" and other factors concerning the Fairness Doctrine. I have a whole bunch of articles under a "Fairness Doctrine" post label (this post label is also in the sidebar of the homepage). It really pisses me off when I am accused of being ignorant on issues where I am one of the world's foremost authorities if not the world's foremost authority.
>>>>>> Limited space or unlimited space doesn't matter. I am not sure if you lived during the 80's when the "fairness doctrine" was in-acted, there was a lack of opinions on the radio. <<<<<<
According to Wikipedia and other sources, the FCC adopted the Fairness Doctrine in 1949.
>>>>>> There was only 75 voices, back in 1987. Since the fairness doctrine was done away with, there are now over 3,000 voices. <<<<<<<
The Fairness Doctrine was not exactly "done away with" around 1987 -- it was just abandoned by the FCC and is still dormant. And the proliferation of radio voices had nothing to do with the abandonment of the Fairness Doctrine -- that proliferation was mainly the result of satellite radio, which uses audio compression to simultaneously transmit multiple broadcasts on the same radio frequency (cable TV also caused a proliferation of TV broadcasters). For all I know, the number of terrestrial radio broadcasters could be no greater now than it was in 1969 when Red Lion v. FCC was decided. But receiving satellite radio broadcasts requires special equipment and subscription fees.
When Red Lion v. FCC was decided in 1969, the Supreme Court could base its decision only on conditions that existed then and not on conditions that exist now. At that time, the issue of the scarcity of broadcasting sites was sufficient to decide the case. Today, the court might also consider the abundance of broadcasters on satellite radio. However, another issue would be the likelihood that the rebuttal would be heard by the same people who heard the rebutted attack. Even when the rebuttal is broadcast on the same station as the rebutted attack, a large number of people who heard the rebutted attack will not hear the rebuttal -- when the rebuttal is broadcast on a different station, that number can increase dramatically. And if the attack is broadcast on regular radio and the rebuttal is broadcast on satellite radio, the court would also have to consider the fact that receiving satellite radio broadcasts requires special equipment and subscription fees. Also, if the rebuttal is broadcast by a different broadcaster, the court would have to consider the issue of whether it is OK to charge the accused for air time.
BTW, I think it is a common misconception that Red Lion ruled that the Fairness Doctrine was constitutional. Red Lion only ruled that two corollary rules, the "personal attack" rule and the "political editorial" rule, were constitutional -- Red Lion did not rule on the constitutionality of the general Fairness Doctrine. These corollary rules were thrown out in 2000 by the DC Circuit appeals court when the FCC failed to satisfy that court that continuation of these rules was justified in view of the FCC's abandonment of the general Fairness Doctrine around 1987 -- it is ironical that these same two rules were upheld as constitutional by the Supreme Court in Red lion! Details are in my several comments under this article and this article on the Balkinization blog.
The courts are completely unpredictable -- for example, I pointed out,
The Exploring Constitutional Conflicts webpage says,
"It is interesting to contrast Red Lion with the Court's decision in Miami Herald v Tornillo, just five years later. . . . Despite the similarity of the question to that presented in Red Lion -- and the fact that Red Lion was the case most discussed in briefs for both parties -- the Court never even so much as mentioned Red Lion in a footnote!"
Also, the US Supreme Court's 9-0 Miami Herald v. Tornillo decision overturned an 8-1 decision of the Florida Supreme Court.
>>>>>>> I don't think popular private blogs whom may attack someone for one reason or another would have to be forced to give space for the one who was accused that would be readable to most readers, not buried way down on number 200 out of 500 or so message responses.
How effective do you think that would be for a popular blog? The blog owner gets first post and the accused gets the 200th position. Most likely if that person was censored, it wouldn't make much of a difference. <<<<<<<
So much the worse if the blogger won't even begrudge the accused the 200th position!!!
You still don't get it. As I said, it is perfectly conceivable that the courts could rule that a blogger's censorship of rebuttals of an accusation shows "reckless disregard" of whether the accusation is "true or false" and shows "actual malice" (New York Times v. Sullivan). What is so hard to understand about that?
>>>>>> Hundreds of blogs could make accusations about the same person which could reach more people than one popular blog, how are you going to enforce fairness on all those private blogs? <<<<<<
So it's not libel because anyone can repeat it? According to that standard, no libel suit could ever be won.
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This comment has been removed by a blog administrator.
Hectoring Hector, I deleted your comment for two reasons. One was due to my error -- you were responding to a comment here that is a duplicate of a comment that I properly posted in another thread -- I originally posted the comment here by mistake and thought that I deleted it but did not. The second reason is your following statement:
>>>>>>> So you call me dumb if I answer questions and you call me dumb if I don't answer questions, you lousy dunghill.
No, dunghill. I call you dumb if you pretend that questions were asked that clearly were not. You have ducked the question that he actually did ask. <<<<<<
You said that I ducked the question that ViU actually did ask but you did not describe what you think that question was. Actually, it was more of a statement than a question -- here it is, in context:
I said: "Yes. Teaching pseudoscience broadens students' education, encourages critical thinking, helps students learn the material, and increases student interest."
ViU answered: "So the flat earth theory should be taught in geography classes."
I responded with a description of how the round-earth v. flat-earth issue is treated in the proposed Texas science standards -- the issue is ignored. That was a direct response to ViU's comment. My response was not frivolous, as there are the questions of (1) how ancients and people in the Middle Ages knew that the earth was round and 2) how the myth of the flat-earth belief got started and propagated (an especially intriguing question if the evidence for a round earth is so obvious).
If you can't or won't describe what you think ViU's question was, then your comment does not deserve to be here -- your comment is just cluttering up this blog with garbage and I am not going to tolerate that kind of crap anymore. Go tell the whole world how hypocritical my no-censorship policy is and see if I care. If you don't like my rules, then good riddance.
How can you assume, bozo, that I have not studied more than you think I have studied so far?
You sound like you were too young to listen to talk radio and the impact the fairness doctrine had back then. Let me tell you something Larry, experiencing it, is different than just reading about it.
That is what I call a "let them eat cake" argument -- i.e., giving people a non-existent or inferior alternative.
Who generally gets attacked in the media? Normally famous or well known people or people in high positions which have access to the media already. There is the recent exception with "Joe the Plumber."
Now you look at Joe the Plumber, famous people made him popular, and he is able to answer accusations against him in the mainstream media without even having to build an audience! So would government regulation be needed so Joe could go on every blog or every tv station that attacked him so he could rebut the accusations?
Larry I know why your into government regulating blogs all over the world, you have been banned from various blogs. You have a high degree of passion for blogging and telling the world how it should be in your viewpoint.
But unlike you, I respect private blogs, and it is there right to promote various viewpoints as long as it doesn't cause harm to those who they focus on, such as damaging reputation. That's not to say I agree with people who promote false accusations.
And the problem with enforcement which you have not come up with a viable answer and it's understandable because the internet is huge. Without enforcement, giving fairness to the counter accusations would be meaningless.
Courts are not that unpredictable, that is why certain Judges are appointed depending upon which political party is in power. You can get an idea on how a Judge might rule simply by looking at previous court rulings.
Juries are targeted by lawyers, which helps predict outcome. That is not to say they would be always right and the outcome would be locked, but it cuts down on the unpredictable nature of the court system.
So you can hammer out your frustration on this topic, but it is meaningless if there is no viable solution.
As the saying goes, don't feed the trolls.
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>>>>>> Earlier there was another poster Voice in the Wilderness from whom I took this name. Larry was so scared of his posts that he blocked him completely. <<<<<<<
ViU, I said that I don't tolerate lies about objective facts.
> ViU, I said that I don't tolerate lies about objective facts. <
Then why do you continue to lie about objective facts?
Why should we believe that what you pretend to quote comes from the arbitrarily censored posts?
Larry's "quote" is probably an "interpretation" of what ViU said. Then again, it could be a direct quote taken out of context. Whatever it was, Larry was afraid to have us see it.
>>>>>> Earlier there was another poster Voice in the Wilderness from whom I took this name [TRUE]. Larry was so scared of his posts that he blocked him completely [FALSE]. <<<<<<<
Voice in the Wilderness departed for his own reasons, which were not given. (At the time, Larry was more consistent about his non-censorship.)
> Voice in the Wilderness departed for his own reasons, which were not given. <
And you know this how?
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This time I will leave it to you to figure out why I censored your comment.
> This time I will leave it to you to figure out why I censored your comment. <
There are two possibilities:
1. Larry couldn't answer.
2. The censorship was arbitrary.
I would suspect both.
Now does anyone have any doubt that Larry blocked ViW?
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