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Wednesday, August 20, 2008

Don't Be a Menace

Despite the digression on legal residencies, the main point of my original post was to ask a different set of questions. I was interested by the idea that even within the world of the black-letter, lawyers who don't know certain things about a field are a menace to their clients. I'm curious what those things are on a field-by-field basis, and how long it takes to teach them. In particular, how do we help them avoid wandering onto thin ice?

Here's an example from my own teaching. Section 230 is the single most important thing I teach in my Internet Law class; it's a central topic for any worthwhile course in the field. The courts have read it broadly--and remarkably uniformly--as immunizing online intermediaries from liability for harmful content supplied by users. Thanks to Section 230, your ISP isn't liable if you use its facilities to send out defamatory emails. Web forum operators aren't liable for privacy-invading messages posted there; Craigslist isn't liable if its users post ads looking for white tenants only.

The basic parameters of Section 230 immunity are pretty well settled by now. It's true that there's some interesting litigation around the margin, but the core protection is about as clear as anything ever gets in law. And yet, plaintiff after plaintiff files a lawsuit that's obviously preempted by Section 230. As Eric Goldman predicted, it's getting to the point where attorneys filing such suits are flirting with Rule 11 sanctions. And yet the lawsuits keep on coming.

I've talked to a few attorneys without an Internet law background about about Section 230. Their attitude towards it could best be described as "disbelief." A categorical immunity this broad and absolute was simply outside their past experience. No matter what I said or how many citations I gave them, they really didn't think, in their heart of hearts, that it could possibly be the law. Section 230 is a spring-gun doctrine, highly dangerous to those who trespass in the field of Internet law.

Thus, one facet of my larger question is what to do about spring-gun doctrines throughout the law. Dedicated classes in a subject can spend major class time on them--often time disproportionate to the policy issues they raise or the complexity of the law. That presupposes, however, that students are taking a class in the subject. Or, we can point them out from a safe vantage point without getting into the details. Don't even think of going in that cave without a map. Again, though, the scattered nature of legal education means that no one graduates having received all the warnings they probably need to hear. The true skill that lawyers need is to recognize the warning signs of thin ice in a doctrinal area they don't already know. I have no good idea how to teach that one well.

Posted by James Grimmelmann on August 20, 2008 at 11:31 AM in Teaching Law | Permalink


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James, this is an interesting post (as usual). The pedagogical issues are important. Ultimately, as educators, I think the best we can do is (1) teach students how to research the law, and (2) teach them not to let their intuitions (often shaped by the conforming pressures of law school) override what their research reveals. 230 is a great example because it's so counterintuitive to the control/liability paradigm that students learn in the 1st year. The general model is that a party that can control the situation is liable for poorly exercising that control. 230 contravenes that model by excusing the online provider even if they had full control. So we need to teach students to trust their reading comprehension skills over their intuition. Easier said than done, but I don't think it's possible to teach students all of the "gotcha" doctrines in all fields.

One minor correction: the Rule 11 sanctions in the recent case were issued against a pro se litigant, not an attorney.


Posted by: Eric Goldman | Aug 20, 2008 6:45:39 PM

I wouldn't deny that there may be a certain amount of Internet law groupthink, particularly among academics and policy types, but even among some practitioners. It may be that such people tend to be a little overprotective of ISPs in their predictions of the direction of case law, as a matter of conscious or (more likely) subconscious boosterism.

I'm pretty sure I'm not in that camp on this one issue though, because I've been watching cases like Batzel and Barrett for years and thinking they were profoundly wrong (and that some other court would hopefully someday get it right).

But Sam you're making a good point. The mere fact that people file loser cases tells us nothing. We have to look at why they're losing. There's at least 3 possibilities:

1) The facts rarely bear out the claims. I suspect this is where most of the ADA cases fall. See also copyright infringement claims involving unsolicited submissions. IF Steven Spielberg really had ripped off Loki the space monster or whatever in making E.T., he would've been in trouble.

2) Lawyers keep pushing the same argument in different forums. So, in the 230 context, if what we were seeing was lawyers making Kenneth Zeran's argument (which he lost on in the 4th Circuit) that Section 230 preserved distributor liability (that is, liability on notice), but just kept losing in the SD Fla, SDNY, ND Cal, ND Ill. etc. etc., then I would agree, that's not due to lack of expertise at all.

3) The people filing the lawsuits have never heard of Section 230.

I think what James and I are saying is, based on the cases we've seen, there's a lot of complaints that fall into Camp #3. That's hard to prove definitively just by reading opinions, but I've read about several cases where there's no attempt to deal with Section 230 in the complaint, and no clear argument in the response to the MTD about why it shouldn't apply, and that's probably because the attorney filing it (who knows standard defamation law as it applies to the print world) just isn't familiar with Section 230, and probably hasn't read much of Title 47 at all (why would he or she?).

Posted by: Bruce Boyden | Aug 20, 2008 5:09:20 PM

Two points:

1. My initial point was that a lot of folks in the internet law community certainly acted like Roommates.com was part of the well settled core. It was only when plaintiffs filed lawsuits like that and judges decided them the way they did that the issue became "controversial and unsettled."

2. There are loser claims filed in all areas of the law, by "experts" as well as "non-experts." Look at how many ADA claims lose, most of which are filed by people who are employment law experts. I think to blame the filing of loser claims on the lack of subject-matter expertise is wrong -- and certainly unproven by the 230 example. I'd say more often the problem is one of too much subject-matter expertise -- i.e., too much immersion in a community of people who spend their time talking to each other about what the law means, but who have no power to issue judicial orders -- and too little law-and-motion litigation expertise -- i.e., the ability to prophesy what the generalist courts will do in fact. But I can't prove my theory either.

Posted by: Sam Bagenstos | Aug 20, 2008 1:56:01 PM

You're conflating the controversial and unsettled current front lines of Section 230 litigation with the very well settled core. If I post something unflattering about you through a a Yahoo! group and you sue Yahoo! for defamation, that is an objectively baseless claim. We're seeing the courts searching for the outer limits Section 230 immunity in some cases, but we're not seeing them questioning the immunity itself.

Posted by: James Grimmelmann | Aug 20, 2008 12:38:25 PM

Sam, I agree with you that Internet law types are just as capable of turf defense as anyone else. That's way "you have to be an expert in this area before you can practice in it" is a murky warning at best, because while it may be a warning that there are counter-intuitive doctrines in a field, it may also simply be an attempt to ward off the riff-raff (MY specialty is extraordinarily difficult, unlike the fluff subjects the rest of you lot teach/practice!).

And I'm not a huge fan of Section 230, so I'm thankful for the Roommates.com decision. (Hmm, maybe I should post on this; if only I were guest-blogging somewhere...) BUT there are definitely a slew of complaints being filed within the unarguable core of Section 230 -- i.e., where no plausible argument can be made that the ISP is really the author or is soliciting tortious conduct, as in Roommates.com. And as James says, at least within that space, it's a pretty clear rule. Complaints that argue that X post was put up by Y on Z's site, and contain no allegations that Z was in any way involved in creating or soliciting the posting, are frivolous and, I think, potentially sanctionable under R.11(b)(2).

Posted by: Bruce Boyden | Aug 20, 2008 12:33:08 PM

Not that your post is really about Section 230, but what the heck, I'll treat it as if it was. It's true that anyone thinking of bringing a case against someone online should know about Section 230 -- and it's true that people without an internet law background think it's ridiculous. But this Rule 11 business is really bravado by internet-law types who think that Section 230 is much broader than it is. Compare, e.g., the Ninth Circuit's en banc decision in Roommates.com with some of the responses by internet law types to that decision.

Posted by: Sam Bagenstos | Aug 20, 2008 12:15:53 PM

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