Team Kimberlin Post of the Day


One of the bits of Internet law that the Cabin Boy™ consistently get wrong deals with the protection afforded to website operators who allow comments. If the comment process is interactive, then the website operator is not responsible for the content of comments made by others. That’s what the Communications Decency Act says, and that’s how the courts have interpreted the law. Period. The End.

I don’t have to be an ISP in order for Hogewash! to enjoy that protection. Neither does the operator of BillySez. Neither does the operator of The Pontificator, although in his case that’s a moot point because he seems to be the true author of all the comments appearing at that site.

30 thoughts on “Team Kimberlin Post of the Day

  1. I posted this over at the Billy Sez blog, which gets even deeper into the topic…

    Bill is obviously attempting to chill speech here by claiming that our hostess is responsible for the accuracy of comments on this blog by third parties because she is allegedly not an internet service provider. He is wrong.

    Of course all of this concerns the communication decency act, codified as 47 U.S.C. Sec. 230. The key portion of the law is Sec. 230(c)(1), which says:

    “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

    That issue of who is the publisher mentioned toward the end of that sentence is the key. If you are not treated at law as the publisher or speaker, you are not liable for what that person says. This is in contrast with books, where the people printing the book are treated as a publisher, not just as a matter of nomenclature, but as a matter of liability. That is why virtually every defamation case involving books includes both the publisher and the writer as defendants and so long as other elements are met.

    So who isn’t a publisher? Well, certainly a “provider… of an interactive computer service” is not. That would be WordPress and many would argue (correctly in my opinion) that this includes our gentle hostess.

    But we don’t have to settle that last question—whether our hostess is a provider—because well… look at that first part of the quoted passage again, without the elipses: “No provider OR USER of an interactive computer service…” (emphasis added)

    Now, Schmalfeldt can debate whether our hostess is a provider, but even he isn’t stupid enough to claim she isn’t a “user” of of an interactive computer service.

    So, the short answer is that you are only responsible for what you write on the internet, and only you. So you should be concerned for your own potential liability for what you say, but you can rest assured that it is *only* your arse on the line in any civil action. Why? Because Congress wants to encourage people to create forums like this where there is a great deal of freedom of discourse (while also saying in Sec. 230(c)(2) that forum creators will have a great deal of freedom to protect the level of discourse in such forums).

    “B-b-but Aaron,” I hear you say, “are you saying that Bill Schmalfeldt is an idiot who can’t understand what a law says even though it is plain English and judges have explained it to him twice?”

    Yes, I am saying exactly that.

    • He has asked the same quesion on Just answers and has been told the same thing. So, what’s really going on?

      The proprietors of Billy Sez, past and present, do not take pot shots at family members. They do not allow disparaging commentary about family members, nor do they allow doxxing. Bill Schmalfeldt, on the other hand, has written, incorrectly and disparagingly, about David Edgren’s family and Ashterah’s family and significant others. How does he justify this? By blaming them for commentary made by others, some of which does not even occur in their blogs. There is no justifiable reason for Bill’s inaccurate and misleading comments about Ash’s family. He is trying to bully her into silence by attacking her family. Thus, the need for a three year-old to get a restraining order against him.

      • That’s what cowards do. They act tough until they have to actually face someone, then they run and hide. We have seen that numerous times with Bill running away as soon as he knows he has to actually face someone in court. Hoge, Grady twice, and 3 defendants in the current case. Cowards gotta coward.

  2. “Most of this stuff is written simply enough that lickspittles can grasp it.”

    — William Smellfart, Twitter Attorney at Law, collector of multiple court orders from multiple states for harassment and stalking.

  3. The fact that BS asked this question of lawyers less than two weeks ago, and continues to make veiled theats about making claims that unsupported in law, is quite telling. Why, a suspicious mind might think that this was solely to harass someone through lawfare.

    “Therefore, the answer to your question is no. The Webmaster/mistress holds no liability.”
    Read more: http://www.justanswer.com/law/9jsk7-here-s-hypothetical-regarding-webmaster-s-liability.html#ixzz41Tt2dyBC

    • He should consult an attorney. Again.
      P.S. Res judicata. Collateral estoppel. Etc.

    • The fact that BS asked this question of lawyers less than two weeks ago, and continues to make veiled theats about making claims that unsupported in law, is quite telling. Why, a suspicious mind might think that this was solely to harass someone through lawfare.

      Can you say “Mens rea”.

  4. If what Bill said was true the following companies would be in bankruptcy now:

    Amazon
    Twitter
    Ebay (love them some seller feedback)
    Hotair
    DailyKos
    The Examiner
    Liberland
    realclearpolitics
    The Washington Post
    Instapundit
    oh about 123,876 other blogs

    But hey, he KNOWS, just like HE KNOWS I don’t have a lawyer

    • To paraphrase Ronaldus Maximus “It isn’t so much that Bill is ignorant. It’s just that he knows so many things that aren’t so.” Though I would hold that Bill is pretty ignorant too.

      Or should I say … “dim”?

  5. Wait, wait, wait. I think everyone has been missing one very crucial, vital bit of information:
    All previous legal actions were filed in Maryland, where the corrupt, easily fooled Republican-dominated political machine steamrolled Bill.
    This attempt at a legal filing is from _ Wisconsin _, don’tchaknow.
    Entirely different location means entirely different outcome.

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