Good new decision on Internet speech

[David Farber <dave () farber net>]

------ Forwarded Message
From: Paul Levy <plevy () citizen org>
Date: Mon, 31 Jan 2005 17:05:20 -0500
To: <dave () farber net>
Subject: Good new decision on Internet speech

I want to call your attention to today's excellent decision of the New
Jersey Superior Court, Appellate Division in Donato v. Moldow, upholding a
citizen's right to host a forum for discussion of local affairs without
being held liable for offensive postings made by visitors to the web site.
available online at http://www.judiciary.state.nj.us/opinions/a5942-02.pdf.

This is the case involving the "Eye on Emerson" web site, created by a
resident of Emerson, New Jersey to discuss local affairs in the Borough of
Emerson.  Several public officials sued over allegedly defamatory and
certainly offensive comments posted on a bulletin board that was part of the
web site.  The officials sued both the anonymous posters and Moldow, the
creator of the web site.  After failing to obtain enforcement of a subpoena
to identify the posters, because the plaintiffs refused to submit evidence
to support their claims, they dismissed those claims and concentrated their
efforts solely on the web site host, whom they held responsible on the
ground that he had facilitated the offensive comments by creating the
discussion site, and had failed to comply with plaintiffs' demands that he
take down every post to which they objected, or require posters to identify
themselves.

In the decision released today, the Appellate Division agreed with the vast
majority of courts that have addressed this question, holding that the
Communications Decency Act, 47 U.S.C. section 230 protects all persons who
host discussion forums, whether or not they are Internet Service Providers
like AOL.  The court also refused to treat the Good Samaritan provision of
section 230, which precludes liability for good faith efforts to remove
offensive material, as modifying the CDA's basic grant of immunity.  Thus,
allegations that Moldow was hostile to plaintiffs, that we was happy that
plaintiffs were attacked on the bulletin board, or that he made negative
some postings more readable by toning them down or that he removed praise
but not criticism, all failed to undermine the claim of immunity.

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation


------ End of Forwarded Message


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