From: Catherine Seo, Cara Nelson, Eddy Ramos, and David Townsend
Date: March 31, 2001
Re: Jimmy Snyder and www.elvesforum.com
Per your request we have reviewed the “Politics R Us” and “Rogues Gallery of Famous People” sections of Jimmy Snyder’s site, www.elvesforum.com. We intend to outline for you what we see as potential issues in each of the sections and provide supporting arguments for each side of the issue. Please understand that we are aware of the close relationship between Cool Vibrations and Elvesforum and our intention is to inform you of First Amendment and Privacy implications. We are confident that you will use this information to make informed decisions regarding those relationships and protect your personal and business interests.
The initial issue found within the “Did You Know” section deals with the First Amendment, which protects the right to express one’s thoughts and to communicate freely, but also has several limited exceptions for protection. The issue found here is whether the contributed content about national, state or local politicians is fact or opinion.
If neither Cool Vibrations nor Jimmy contribute to the sites content and simply offer the content for users as a selection they would be viewed as a distributor and there would be no liability as long as they provided a reasonable amount of investigation to prevent outright lies. A distributor does not exercise any editorial control over the content and acts like a bookstore with information available as a selection for individuals.
In the case between New York Times Co. v. Sullivan, the court held that defamatory falsehoods about public officials can be punished if the offended official can prove the falsehoods were published with reckless disregard of whether it was false or not. If Jimmy and Cool Vibrations were contacted with a complaint, they would be required to give known information about the individual who posted the wrongful statements. To refuse to do so would violate their responsibility to provide reasonable investigation.
If either Cool Vibrations or Jimmy tried to change or edit the users content, they would become the publisher and deemed liable for the entire sites content. Jimmy and Cool Vibrations should never edit or change content because they would become the publisher. By doing nothing, Jimmy and Cool Vibrations have taken on the passive role of being a distributor of content.
The second issue dealing with
First Amendment is found in the “How to Muckrake” section of the
web site. This section involves
exceptions to First Amendment protection because protection is not granted if
the words used can cause harm to society or the
government. Muckraking is acceptable as long as Jimmy is not giving
instructions on how to break the law or inciting people to break the law. Careful review of content should be
undertaken to determine motive and to be certain that the content doesn’t
incite violence.
In the case of Chaplinsky v. New Hampshire, the Court held that so-called "fighting words ... which by their very utterance inflict injury or tend to incite an immediate breach of the peace," are not protected. This decision was based on the fact that fighting words are of "slight social value as a step to truth."
Jimmy participates in posting to this site and therefore has assumed the role of publisher and assumes responsibility for what others post to the site. Based on the risk of having inciting comments posted on the site we would recommend that Jimmy discontinue contributing to this forum because of the liability exposure that he brings upon himself. His contributions are not only encouraging users to contribute this kind of content, but are taking away his First Amendment protection for free speech that could result in law suits against his Web site. This type of content can potentially be considered unprotected expression.
Cool Vibrations should have no involvement in the contribution of the sites content, and therefore only play the roll of a distributor for the sites content. Cool Vibrations needs to be able to show reasonable investigation to protect the ISP from libel lawsuits.
Case law suggests that the basis of ISP liability to persons defamed by its users is based in certain law, which encompasses defamation. The four elements of defamation are:
(1) A defamatory statement concerning the plaintiff;
(2) Publication of the statement;
(3) Some level of fault (negligence or greater, depending on the nature of plaintiff and the subject matter of defamatory statement);
(4) Some ISPs seem to differ from companies that commercially publish printed work for sale to the public. For example, book publishers rely on third parties to create work to be sold to the public, and newspapers and magazines rely on written work produced by its reporters, syndicated columnists, and wire services for their content. Although ISPs do hire people to run columns, the majority of their content is contributed at the freedom of third parties.
Rogues Gallery of Famous People –
The primary issue in the “Oh No, Not Him/Her” section is the legality of the unedited nasty name-calling and occasional obscenities posted on the site and directed at celebrities, and whether or not either Jimmy or Cool Vibrations could be held liable for content on the site.
At the core of this issue is the question of fact vs. opinion. Opinions are acceptable and there is no need to edit them but if a contributor threatens someone or discloses untrue information in the form of facts about someone, those actions may be considered an unprotected expression. There are guidelines on both defamation and obscenity that should be closely reviewed by both Jimmy and Cool Vibrations.
ISPs are similar to newspapers and magazines, in that they all carry advertisements and content provided by outside sources. Printed publications differ. They also carry letters to the editor or editorials written by readers, the content having been selected and approved by an editor prior to publication. The publisher is responsible for the content and therefore is selective to protect the rights of themselves and the publication by printing retractions in the publication. These are usually printed on the letters to the editor page or somewhere that is visible to the public eye. The location of ISP retractions is still open to debate and to be determined by future case law. At any rate, however it is determined, most likely that it will never be in an "obvious" place where it can be seen.
It was not until Miller v. California case, in 1973 that a majority of the Court was able to agree on a definition of obscenity. In Miller, five Justices agreed on a new definition of "obscenity". Miller laid out a three-part test (all parts of which must be met) for identifying material, which may be banned, as obscene:
(1) The "average person, applying contemporary community standards" would find that "the work, taken as a whole, appeals to the prurient interest";
(2) The work "depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law"; and
(3) The work, taken as a whole, lacks "serious literary, artistic, political, or scientific value." The Miller majority explicitly rejected the argument that what appeals to the "prurient interest" or is "patently offensive" should be determined by reference to a national standard. What counts are the standards of the local community where the prosecution is taking place.
Our conclusion is that Cool Vibrations might be provided First Amendment protection if the business did not control or edit any of the material on Jimmy’s site. At the same time, the business has knowledge that material contributed to the site can be considered unprotected expression; and we are concerned that Cool Vibrations does have a chance of being held liable.
One solution would be to ask the site’s owner, Jimmy Snyder, to take the role of publisher for his site and edit the questionable material. This would be the best protection for Cool Vibrations. We recommend that Jimmy include a policy clause that explains that user information will be used to confirm the original creator of contributed work only, that the opinions expressed by the contributing users are not necessarily those of the Web site, and that the site cannot be held liable for the facts or opinions stated.
The next issue can be found in the “Now You See It” section of the site where artistic and graphic work is displayed. When ISPs carry content, which is unseen and unedited by the ISP, they will be governed by the rule for distributors so we would recommend that Cool Vibrations not edit the site. This would insulate Cool Vibrations from obscenity liability.
Jimmy’s site has the risk of violating the standards covered by the definition of obscenity found in Roth. In Roth v. U.S., the Court held that First Amendment concerns limit the acceptable definition of "obscenity." Here the Court formulated its own definition of "obscenity": "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest." In recent cases, the Court has been forced to decide whether particular materials were obscene under the Roth definition. In many instances no majority of the Court could agree on a single rationale.
“The Price is Right” section invites anonymous bidders to put a price on the head of any celebrity. The concerns we have with this section are the nature of the threats to the individuals and/or the possible threat to society that putting a price on the head of any celebrity may cause. The issue here is whether or not this practice incites violence or is it likely to incite violence.
Advocating for Freedom of speech and Jimmy’s right of
expression:
The American Civil Liberties Union states in its’ briefing paper that our freedom of expression protected by the first amendment and written by the Supreme Court is “the matrix, the indispensable condition of nearly every other form of freedom.” Free Speech is not absolute and there are cases (see below) where there have been limitations put upon it, BUT in this case free expression and free speech needs to be protected.
In order to see whether the speech in this case is protected by the first amendment or not, we need to compare (weigh, balance) the value of the speech against the likely harm the speech may do. What would a reasonable person perceive in this case? How could we evaluate the nature of a possible threat to the individuals and balance that with the possible threat to society itself?
The Supreme Court's Brandenberg v Ohio ruling in 1969 used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is "directed at inciting or producing imminent lawless action" and (2) it is "likely to incite or produce such action." You can only be held liable if your speech incites an "imminent lawless action"; but what's "imminent" when you're dealing with a web page?
Jimmy’s invitation is to ANONYMOUS bidding, the likelihood that it may in fact be taken as a serious or “true threat” is extremely unlikely. In this case it would seem that there is no “imminent lawless action” that would result. Jimmy has clearly stated that everything he does is “all in fun. By silencing and in fact, censoring Jimmy’s expression it could result in a greater threat to the first amendment and to our society as a whole.
The U.S. Supreme Court, in Reno v. American Civil Liberties Union, has made it clear that it regards the Internet as "a unique and wholly new medium of worldwide human communication", to which full First Amendment protection, and no lesser standard, applies. Jimmy’s website would be protected under the First Amendment and his free expression given sanction.
Free speech decisions set precedents for future decisions. Suppressing such free expression would, after all, be a violation of his right of free speech and expression against the first amendment and the Constitution. A “slippery slope” could begin setting a precedent that could lead to further decisions, which would eventually result in either complete anarchy or the elimination of free speech. This could produce greater harm to society by censoring and setting precedent and limiting Jimmy’s (and others) freedoms.
Advocating for limiting Jimmy’s expression in this case:
Free Speech is of most critical importance in protecting our freedoms, BUT in this case speech needs to be limited. Throughout our country's history, persons in the public spotlight have faced danger from others. Elected leaders, political figures, celebrities--all have been threatened with attacks on their safety and, in some cases, their lives, such as John Lennon and Versace. Assassination of political leaders and other public figures has been a significant problem.
Regarding a case cited about abortion David Fidanque, Executive Director of the ACLU of Oregon said, "This case raises important and difficult issues. On the one hand, the First Amendment may not be used as a shield by those who engage in acts of violence or issue threats of violence. On the other hand political speech is often harsh and mean-spirited. We must be very careful, therefore, in how we distinguish between protected political speech and what the Supreme Court has described as a 'true threat,' which is not protected by the Constitution."
A March 28, 2001 ruling by the 9th Circuit Curt of Appeals ruled that a Web site and posters calling abortion doctors “baby butchers” and criminals is protected speech. This ruling may provide Cool Vibrations with even more protection than being considered a distributor.
Various federal and state statutes prohibit the communication of threats. The first step in enforcing these statutes is to determine whether a person's speech actually amounts to a "true" threat. True threats are not protected by the First Amendment and can thus be prohibited without violating the United States Constitution. Speech amounts to a true threat if: 1) a reasonable person hearing the speech would perceive the speech as a threat to identifiable individuals or entities, in light of relevant factual context, and 2) the speaker intended the speech to be taken as a threat, regardless of whether the speaker intended to actually carry out the threat.
Supreme Court Justice Holmes stated, "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing panic." Not only doesn't the First Amendment allow you to shout, "Fire" in a crowded theatre, it also doesn't allow you to incite somebody to burn it down. In this case, though Jimmy may intentionally be in fun, the results may actually cause harm by inciting others who may not view the “hit list” as just “fun” and cause real damage to individuals who are listed.
"Nuremberg Files", a website that listed doctors who performed abortions. Any time a doctor left that specialty -- through retirement, change of practice, or death -- a line would appear through his or her name. This was referred to as a "hit list". Then Dr. Bernard Slepian, a doctor on the list, was killed in his own home by a sniper. His name was reportedly crossed out minutes after he was shot. An American jury did order the owners of the "Nuremberg Files" website to pay $109 million, and a judge shut down the site.
The above example cites a specific instance where a published list contributed to violence and murder. It would seem that in this case, there is a possibility of similar occurrences based on this stated precedent. We would suggest the rights of society and the safety of the individuals that could be named to the Price is Right list supersede the expression being used.
The final issue involves “Privacy” and whether a user can, or should, expect reasonable protection from information dissemination by www.elvesforum.com. Jimmy wants to continue to provide the site for his faithful fans but cash flow is forcing him to think about alternative funding methods by selling information about users, contributors and visitors to the site.
One might argue, without legal merit, that Jimmy’s users have registered and that he will only consider selling information to like sites, the assumption being that his users won’t mind. It is our opinion that there is great risk for Jimmy and Elvesforum by making this assumption. Just because users have never been told what would, or would not, happen with their information doesn’t mean that the user no longer wants to control the information.
Furthermore, since the late 1800’s when future Supreme Court Justice Louis Brandeis argued that one of our more cherished freedoms were privacy, it has been generally accepted that privacy is a fundamental right and we should be able to control personal data even we have shared that data. Citizens should have “cradle to grave” control of their personal information.
In FTC v. Toysmart.com Inc., the Federal Trade Commission sued to prevent Toysmart from selling confidential and personal information collected from its customers to raise funds during its bankruptcy proceedings. This suit intends to protect the privacy rights of consumers.
The United States has specific sectoral laws that govern “vertical” industries and the problem that’s created is that each time technology improves (or changes) and creates a new product or methodology for information exchange, new legislation must be introduced to protect users and there is always a lag period that creates a gap in legal protection. Privacy legislation has been approved that affects children and financial information and there is currently a push to medical information privacy but true to past practices, this is sectoral legislation.
It is our opinion that Elvesforum should immediately post a privacy policy on its site and send notice, and receive consent, to current registered users of its intent before selling any data. Furthermore, it is our recommendation that Elvesforum.com comply with the principles contained within the fair information guidelines. These guidelines specifically cover:
1. Notice/Awareness – Consumers should be given notice of Jimmy’s information practices before any information is collected from them
2. Choice/Consent – Consumers should be given a choice as to how information collected from them will be used
3. Access/Participation – Consumer should have access to data about himself and should be able to contest the data’s accuracy
4. Integrity/Security – Reasonable steps must be taken to provide consumer access, destroy untimely data and to protect against loss or unauthorized access to data
5. Enforcement/Redress – Company should ensure compliance with the fair information guidelines
Summary – We have presented the relevant legal issues in an attempt to raise awareness for the potentiality of lurking legal troubles. We believe that a consistent strategy should be incorporated regarding the issues identified in the early sections of this review. It is our opinion that neither Jimmy nor Cool Vibrations can appear to be a distributor in one instance and a publisher in another. Roles must be determined then a consistent strategy implemented to match the roles.
It is also our opinion that a proactive commitment to the fair privacy guidelines will help to avoid future problems. We understand and appreciate the need for a successful revenue model and it will be possible to achieve that goal as long as you don’t become intertwined in legal battles!