Singularity Law

The Information Technology Law Blog and Podcast by Professor Michael Scott Decision: A Start of a Judicial Trend to “Rein in” the Web?

The Ninth Circuit recently published its en banc decision in Fair Housing Council of San Fernando Valley v. LLC, 2008 WL 879293 (9th Cir. April 3, 2008). I do not intend to comment on the merits of the decision, which has been analyzed in depth here and here and here, but I want to point out a footnote which I found troubling.

In the opinion, after discussing the legislative history of Section 230 of the Communications Decency Act (which provides immunity for service providers for third party postings on their websites), Judge Kozinski says the following in footnote 15:

The dissent stresses the importance of the Internet to modern life and commerce . . . and we, of course, agree: The Internet is no longer a fragile new means of communication that could easily be smothered in the cradle by overzealous enforcement of laws and regulations applicable to brick-and-mortar businesses. Rather, it has become a dominant – perhaps the preeminent – means through which commerce is conducted. And its vast reach into the lives of millions is exactly why we must be careful not to exceed the scope of the immunity provided by Congress and thus give online businesses an unfair advantage over their real-world counterparts, which must comply with laws of general applicability.

I see two problems with that statement. First, Section 230 was specifically intended by Congress to give immunity to online websites that they would not have in the “real world.” A publisher of defamatory statements made by third parties in the real world would be held liable for those statements under traditional libel laws. Section 230 specifically says that an online publisher of exactly the same third party statements will not be held liable. So the law’s intent and purpose, as clearly stated by Congress in the law itself, as well as in its legislative history, was to treat online “businesses” differently than offline businesses in that regard, and Congress has not chosen to revisit that differentiation.

Second, the court seems to be saying that because the circumstances that exist today are different than when the law was passed, the court is justified in interpreting the language of the statute differently today. That, of course, is not the way courts are suppose to act. They are suppose to interpret the laws as written, and to look for the legislative intent at the time the legislation was enacted. It is not for a court to decide sua sponte that circumstances have changed and therefore it should reinterpret the law to deal with changed circumstances. Whether Section 230 should be modified or even repealed is a decision for Congress to make, not a court.

In enacting Section 230, Congress decided to treat online speakers differently than offline speakers. That was Congress’s choice at that time, and a decade later there is no indication that Congress would consider the landscape to have changed sufficiently that it should revisit the allocation of risk and responsibility that it created in Section 230. It is not up to a court to decide that it thinks circumstances have changed sufficiently that a different interpretation of a clear and unambiguous statute should be made. The court is not a legislative body and should not rewrite laws, even if it feels that if faced with the situation that exists today, Congress might have acted differently.

If a court thinks that a law is no longer appropriate for today’s circumstances, it is certainly free to suggest to Congress that the law should be reconsidered or replaced. But it is not free to rewrite the law as it thinks Congress would have done if given the chance. If our constitutional separation of powers doctrine means anything, it means that.

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