Monday, September 11, 2006

Random Monday thought

This is one of those random Monday morning thoughts that sometimes rattles around in my head after too much weekend grading.

I was exchanging observations with a colleague who is probably the leading S.C. media lawyer about the Rosenthal case in California. Quick backstory: Ilena Rosenthal is an alternative health advocate. The doctors suing are quack-busters. Of course, they all tangled, and Rosenthal posted an opinion piece on another site accusing the docs of using stalking, intimidation and similar tactics against others, including the host of an alternative medicine radio show in Canada. The docs took offense and called in the lawyers.

It's another in a line of Section 230 of the Communications Decency Act cases claiming an exemption for services that just provide a forum but no editing or other meddling. The docs, of course, say it's bizarre that you can be defamed in cyberspace and claim this exemption. The case ended up at the California Supreme Court, which, according to the San Jose Mercury News seems to be taking a dim view of carving any exceptions to Section 230. (As I remember the twist here, the docs say the forum provider was at some point "on notice" that the posting was potentially defamatory.)

OK, with me so far?

As the lawyer and I exchanged e-mails about whether any threshold of monitoring (or meddling) runs afoul of Section 230, this popped into my head:

There's an interesting legal/political economics/philosophy question here that seems to me needs more discussion, to wit: Does the modern media corporation serve (among others) a social function by centralizing not only responsibility but liability?

Theoretically, at least, under the new media order, you could sue someone who defamed you (while not being able to sue his or her ISP or the bulletin board/discussion group/forum/comments page on which the material was posted). But of course, that individual's resources are likely to be far lower than the potential damage that can be created in cyberspace. You could, I suppose, keep suing those who repeat the defamation, but that quickly becomes economically, and practically, infeasible.

So does the media corporation, by centralizing the megaphone -- and thus centralizing the liability and potential recovery -- also promote an economic and legal efficiency desired for social order that the many millions of megaphones do not? Perhaps a rather perverse way of looking at benefits from old MSM, and certainly it needs to be balanced against the benefits of plural voices, robust discourse, etc. Still, something to think about and fascinating as we watch this all shake out.

It will be interesting to see whether society comes up with an alternative. I think it will. I think the desire for legal and social order -- even if it is a new order -- is great, as society has shown time and time again by crafting new legal structures that eventually wrap what tend to be traditional philosophies around new technologies. (Another theory I have is that the rise in "alternative torts" like contract law, trespass and privacy against media defendants simply reflects what society repeatedly has done when industries become too concentrated and powerful. With other industries, the antitrust and similar laws have been brought to bear. But the First Amendment makes some of that problematic in dealing with the media, thus the alternatives.)

What do you think?

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