Barrett v. Rosenthal Oral Argument Recap

By Eric Goldman

Today I attended the California Supreme Court’s oral argument in the Barrett v. Rosenthal case. A short recap of the case: Bolen sent an email to Rosenthal that is allegedly defamatory of the plaintiff. Rosenthal then forwarded that email, unmodified, to a USENET newsgroup. In separate lawsuits, the plaintiff then sued Bolen and Rosenthal. Rosenthal defended on 230 and also claimed anti-SLAPP. The trial court granted the 230 motion to dismiss. The appeals court reversed the trial court. The California Supreme Court then granted cert in 2004. For reasons unknown, this case has been sitting dormant for almost 2 years.

The oral argument turned out to be quite the party scene! There were representatives from at least three of the major California-based Internet brands, as well as some of the most prominent litigators in the area. The EFF had several people in their contingent, and the Samuelson Clinic had a big group. It was a little hard to do head-counting because a group of Icelandic lawyers (representatives of the Icelandic Bar Association) had a sizable delegation in the room, but my guess is that over 100 people showed up specifically for the Barrett oral arguments. About 40 or so people had to watch in the simulcast overflow room.

This is the first time I had attended an oral argument in court (and, in fact, only the second time in my life that I had been in a courtroom for a live case–the first time is when I appeared before a judge to get approval of my name change from Schlachter to Goldman). I was impressed by the judges’ preparation and by their attentiveness. They paid full and close attention to the litigants for the entire hour, even in the relatively limited situations when the rhetoric got sloppy.

Although it’s impossible to make reliable predictions based on questions at the oral arguments, I would characterize the questioning as extremely defense-favorable. The court fully understood the tilted nature of the precedent (all favorable to the defense), and several justices expressed sentiments showing a good understanding of the adverse policy implications of notice-based liability. So while I am a little reluctant to make any predictions, what the heck. I think the court will reverse the appellate court 7-0 in a fairly broad ruling that joins the Zeran line of cases. I expect the opinion to be written by either Justices Kennard or Corrigan, both of whom took the lead on questioning Grell.

Ann Brick of the ACLU-Northern California and Mark Goldowitz of the California Anti-SLAPP Project argued for the defense, and Christopher Grell argued for the plaintiff (he had another unnamed gentleman sitting with him at the table). Here’s a loose blow-by-blow of the event, mostly focusing on the questions asked by the judges. Except where I put the language in quotes, this is my interpretation of the discussion, not a transcription of the actual words used.

Ann led off the argument by saying that the Dot Kids act showed that Congress ratified the Zeran precedent. After about 2 minutes, Kennard asked her what was the purpose of 230 (a seemingly odd question; in retrospect, this was a softball). George asked who is a user. Moreno asked what deference should be given to the Dot Kids act. Someone (sorry, forgot who) asked if the statute was intended to cover Rosenthal’s situation. Chin asked if someone could edit so much that they drop out of 230. Ann responded by citing the standard from the Donato case: when the person makes a “material substantive contribution to the information that is ultimately published.” Baxter asked what happens if someone adds new defamatory content to third party content that is also defamatory. Corrigan asked if someone edited content to make it defamatory, would they be liable. George asked if the ICS’s intent/scienter mattered. He then made the point that Congress may have made the choice to tolerate the intentional republication as the cost of enabling the benefits of 230–he said that Congress chose the lesser of two evils.

It was then Mark’s turn. Before he could speak, Baxter asked him if someone could game 230 by submitting content to a judgment-proof entity. He also asked if 230 preempted conspirators’ liability. Kennard then asked if the court didn’t follow Zeran, what problems would arise. The correct answer is that the floodgates of litigation would open up, but Mark responded that the split of authority would encourage forum-shopping. Kennard then corrected his oversight by asking if the real problem would be the time and expense of companies responding to notices. Corrigan then piled on, asking if the court didn’t follow Zeran, wouldn’t it discourage Internet companies from locating in CA. Kennard then asked what, in addition to the goals Ann mentioned in response to her first question, were there other goals of 230? Specifically, she noted the protection of minors. She asked if the various goals were in tension. Mark gave an interesting but goofy response, saying that 230(c)(1) was designed to foster speech, while 230(c)(2) was designed to facilitate protection of kids. Kennard then remarked that tension in the statutes shows that Congress was doing its job.

There was a brief silence here, so Mark then tried to cover some of the points on his prepared remarks by saying that there was no difference between active and passive users. Werdegar asked what is the difference between publishers and republishers. Mark responded with the Donato standard. Werdegar asked if Bolen was the publisher. Mark said yes. Werdegar asked if the plaintiff had a cause of action against Bolen. Mark said yes. Baxter asked if there was a difference in the legal treatment of online and offline publications.

It was now Grell’s turn. He led by saying that there was a tension between free speech and redress for harmful speech, and upholding 230 would obliterate defamation online. George asked how the Internet could function with a constructive knowledge standard. Corrigan then piled on, asking about the heckler’s veto, saying that the most prudent response to notices is to take down. Grell’s response was that every Internet company has departments to handle incoming complaints, the amici in this case have “armies of lawyers,” and newspapers deal with these incoming notices all the time. Corrigan then asked–isn’t the point that the Internet is just different? Werdegar then asked what part of the statute supported his argument. She then asked how Rosenthal should be characterized under the statute–as a user, publisher, republisher, something else? Grell then made a major admission (a gaffe?) by saying that everyone who goes online is a “user.” [this seems to concede that Rosenthal is directly covered by the statute.] Corrigan then said that there was no need for an immunity for a passive user–such a person never does anything that could create liability that needs immunization, Moreno asked if the term user was defined in the statute, or if any cases had distinguished between active and passive users. Grell replied that the term user is very broad–anyone who can access the Internet. Kennard noted that the court of appeals opinion stands alone, as Zeran had been widely adopted, and she expressed concern about forum-shopping.

At this point, Grell referenced the Cubby v. CompuServe precedent, but he referred to it as the “Chubby” case. I practically burst out laughing. He then referred to the Chubby precedent about half-a-dozen times. I worked so hard to suppress my laughter that I got tears in my eyes. Moreno finally corrected him.

Kennard then noted that plaintiffs have other remedies, including complaining to the intermediary plus ordinary tort remedies against the author. Grell argued that this leads to an absurd result where someone could set up a website, allow defamatory anonymous feedback, and plaintiffs would have no remedy. Moreno asked if there was any evidence that Congress intended to protect someone like Rosenthal. Grell responded that 230 only protects against liability for removing content. This immunity thus defeats Congressional intent when it preempts other federal statutes, such as laws prohibiting discriminatory ads for housing. [Unfortunately, no one made the point that Congress expressly contemplated the preemption of other federal statutes, which is why it excluded federal criminal law from the immunization–see 230(e)(1)] Grell then said that the Internet is like Pandora’s box and 230 opens up the box. George asked why not just defer to Congress? Kennard asked if someone gets a notice, must they immediately take down, or do they have a duty to investigate. Grell responded that the court can determine the appropriate level of notice, but more than a bald assertion should be required to give notice. Corrigan asked how much is required. Grell responded that in this case, the plaintiff supported his notice with documentation. Kennard asked about the possibility of chilling effects. Grell responded that the chilling effects are overstated, and he made a policy argument that notice-based liability would enhance speech by encouraging people to speak up without fear of being defamed in response.

It was time for the defendants’ rebuttal, handled by Mark. Chin led off, saying that Grell cited no legal authority supporting his position, but asked if was there any legal authority undercutting the defendants’ position. Kennard then noted that this court wasn’t a sheep (i.e., not going to follow precedent blindly). Moreno asked about the DMCA. Mark responded that the DMCA shows that Congress knows how to write notice-based liability. Mark concluded on a nice note by pointing out that intermediaries may face market incentives to self-police.

The court is expected to issue its opinion within 90 days. We’ll all be waiting anxiously!

UPDATE: The AP’s recap. The Recorder’s recap.