June 24, 2003
Appellate Ruling in California Case Is Victory for Free Speech on the Internet
Statement of Paul Alan Levy, Attorney, Public Citizen
Today’s decision by the United States Court of Appeals for the Ninth Circuit in Batzel v. Cremers represents a major victory for free speech on the Internet.
In the case, California resident Ellen Batzel sued Ton Cremers, who operates the listserv Newsletter of Museum Security News, and Robert Smith, who submitted a message suggesting that Batzel had inherited artwork that was stolen from Jews during the Holocaust. Cremers posted the message without editing it or investigating its validity. In her suit, Batzel alleged libel.
Largely adopting the analysis put forward by Public Citizen in an amicus brief, the court upheld the right of the operators of Web site bulletin boards and Internet listservs to provide a means for members of the public to disseminate their views and opinions about important issues without running the risk that they themselves might be sued for the contents of the postings that they include in their lists.
Judge Marsha Berzon said that the Communications Decency Act (CDA) protects all providers and users of “interactive computer services,” and her opinion correctly refuses to limit the statute to big Internet Service Providers such as AOL, which provide access to the Internet. The court decided the CDA protects individuals who use ISPs to establish community discussion sites.
At the same time, again consistent with Public Citizen’s argument, the Court leaves open the possibility that the defendant in this case might have disseminated to the public a posting that might not have been intended to be placed on the listserv, and that the writer had no reason to believe would be disseminated generally via the Internet. The court’s opinion strikes a fair balance between Congress’ desire to protect providers of discussion facilities online and the right of a person whose reputation is attacked to sue the person responsible for that defamation. There is no question that the posting in this case about Batzel’s alleged Nazi art could have hurt her, and it will be up to the trial judge to decide whether Cremers should be held responsible for the publication of the calumny.
The Batzel decision contains another important ruling, not limited to the Internet but of interest primarily to those sued in violation of the California SLAPP (strategic lawsuit against public participation) statute for exercising their free speech rights. Recognizing that First Amendment rights are threatened by the financial hardship and the chilling effect of defending a frivolous lawsuit, the anti-SLAPP statute gives defendants a mechanism for having meritless suits dismissed early. Under California law, a plaintiff who brings a SLAPP suit in state court is subject to having the suit quickly thrown out if there is no evidence to support it, and denials of SLAPP motions can be immediately appealed. Today’s decision makes clear that even if the SLAPP suit is brought in federal court, the right of immediate appeal applies nevertheless.