Wednesday, December 7, 2016


THE PROBLEM WITH SOCIAL MEDIA TAKES FRONT PAGE HEADLINES IN THE NYT AND IN FACT CONGRESS

As my long term readers know, I spend a lot of time reading and rereading Blackstone who summarized English Common Law at about the time of the American Revolution.  There was a time Blackstone was regularly quoted by the Supreme Court, but as the Original Intent con grew Blackstone went by the wayside because he wrote extensively how inherent rights evolve and change and eventually balance out to make a better society.  The Original Intent con argument could not refute our Founding Fathers understood this, so they just started to black out Blackstone from their opinions.

I said I was not going to do this but I love to teach so here I go.

Modern law today and even found in our Declaration of Independence is no different than the law of the tribal law or early man as they came together for mutual benefit and protection.  If you wanted the benefit and protection you followed the rules of the elders or leader which in most cases were based on survival.  If you decided you could not live under those rules, you moved on or organized a counter group to change the elders and or leader.  Nothing has changed since the first two early men came together to form an alliance.  Nothing at all.

For today's post an important and controversial commentary from Blackstone on your right to your reputation.

"5. The security of his reputation or good name from the arts of detraction and slander, are rights to which every man is intitled, by reason and natural justice; since without these it is impossible to have the perfect enjoyment of any other advantage or right."

William Blackstone, Commentaries 1:120--41

If you really want a good lesson on the formation of law and inherent rights, you really need to read this entire commentary.  It is not long.  It is simply a summary of the origin of inherent rights and how we agree to at times to relinquish part of those rights when we form government.  Hence the concept of "Ordered Liberty."  Law schools should have at least three hours of instruction on this one commentary, but today lawyers graduate never having heard of Blackstone or that there are written down Constitutional Minutes which educate the lawyer on the meaning of each constitutional provision and the debate surrounding each provision.  I have read it many times.  Nothing infuriates an insecure judge more than having a lawyer cite Blackstone and the Constitutional Minutes.

 BRIEF HISTORY ON HOSTING PLATFORMS AND IMMUNITY

As social media grew Congress passed a law to regulate it.  The 9th Circuit Federal Court of Appeals found the new law gave immunity to the hosting platforms for the defamation by their users.  They also found the moderators were immune for comments, although as in blogspot you must as the moderator affirmatively approve the comment.  I believe it was the 7th Circuit, but I could be wrong, found it could find no evidence in the new federal law to support any of the findings of the 9th Circuit, but in a bizarre ruling found to avoid a conflict between the circuits it would follow the 9th Circuit.

Since then year after year Congress has tried to clarify the law and amended it as internet harassment has led to suicides and murder.

As the problem progressed the courts began to change direction and social media platforms are now paying lawyers millions as they are brought into the litigation.

The primary solution is akin to employment law.  I am making this simple, but it can get more complex.  If a salesperson grabs the privates of another salesperson while on the job, the company cannot be sued.  Now if the company fails to act on the complaint and the salesperson does it the same person or another employee the company can be sued because they had an opportunity to fix the problem and chose not to.  Now as to management the law is different.  If the store manager or assistant manager for example were to grab the privates of an employee the company can be sued because it is presumed the store failed to properly train and monitor its managers.

Congress has been wanting to Amend the law to allow for lawsuits if it can be shown the hosting platform knew of the problem and simply chose to ignore it.  The support is there, but the hosting platforms spend millions on lobbyist to keep the law from passing.  At least we are eating into their profits by forcing them to spend millions on lobbyists.

THE CHANGE IN THE COURTS

For a good 150 years or so the Supreme Court quoted Blackstone or themselves later on, that the right to your Reputation is a fundamental right and the government could only pass a law infringing on that right if they had a compelling state interest.

Then for a period of time the Supreme Court abandoned the fundamental right argument in favor of a lessor right which did not require the government prove a compelling state interest in order to uphold the law.

Several years ago the Supreme Court again changed directions indicating in dicta [meaning not binding law but something they consider important] that in fact the right to your reputation is Fundamental.  This came after endless stories about the platforms refusing to shut down those who engage in harassment and bullying.

Since then when people sue the moderator of the social media for defamation and have competent counsel, the platform is included and the issue of Reputation being a Fundamental Right is raised thereby putting the federal law into issue.  More and more judges are forcing the social media platforms to defend against the claim they have immunity given to them by Congress.

Millions are now being spent in litigation slowly moving its way to the Supreme Court.

Now in the interest of full disclosure, out of about 8000 appeals made to the Supreme Court the 9 Justices claim only about 80 a year merit their consideration.  Practice before the Supreme Court is not about the law, but about getting their attention.  You do this by paying a media consultant upwards of $100,000.  Sometimes a case will make world wide coverage by itself and compel the Supreme Court to address the case.

The Supreme Court is just waiting for the right case which is so compelling they have to take it and restore officially the Right to your Reputation as a fundamental right.

What people do not understand is, 4 Justices can be convinced that your case is very compelling and merits intervention by the Supreme Court and they will turn it down because they have very little hopes of the 5th vote.  An opinion against you would do more damage to the issue, than them doing nothing.

Many people do not know this but in many cases the late Antonin Scalia was more of a First Amendment advocate than Justice Ruth Bader Ginsburg.  When it comes to the First Amendment there is no clear group of 5.  So it is a very dangerous area of law when going to the Supreme Court.

I believe within two years Congress will have the votes to clearly hold the social media platforms accountable once it is proven they knew about the problem and chose not to act.  The Supreme Court may resolve the issue first and find nothing in the law provides the immunity found by the 9th Circuit.  There is immunity in the law, but not the one found by the 9th Circuit..

THE FAKE NEWS PROBLEM

I am hesitant to use the NYT article on this story because a cheap shot against people with tattoos diminished the story. "A a heavily tattooed Mr. Welch."  What does having or not having tattoos have to do with the story?  Nothing.  It cheapened the otherwise good story.

If you have not heard the story here is the short version by the NYT.  " Edgar M. Welch, a 28-year-old father of two from Salisbury, N.C., recently read online that Comet Ping Pong, a pizza restaurant in northwest Washington, was harboring young children as sex slaves as part of a child-abuse ring led by Hillary Clinton."

Click for NYT

The Pizza case has Congress abuzz now knowing something has to be done.  The Pizza case is only going to empower the judges to force the social media host to defend against the right to your Reputation as fundamental and as the host they must prove the government's compelling state interest to give them immunity.  The easiest solution for the judge is to simply agree with the 7th Circuit and say the Immunity is simply not in the law.  This avoids the constitutional issue.

With Mark Zuckerberg of FB taking the lead in shutting down fake news sites and people who use social media to harass, the natural course of competition is going to get good and honest people to move over to FB and away from WordPress and Google, although Google is finally starting to get aggressive and shutting down the sites of those who use it as a platform for harassment and defamation.

The other issue moving the Platforms is advertising dollars.  If one of these bullies opts to run ads for google or WordPress, and you  file a complaint with the advertiser for supporting the defamation, harassment, or bullying, all social media will prevent you from running ads.  This is our best line of attack.

In the Pizza case, nothing by anyone could keep the fake story from spreading and getting people to believe it as true.  Such as the New Yorker found we now suffer from Fact Resistance.  If you want to clean this mess up all I can say is stop reading any and all social media which promotes bigotry, harassment, discrimination and defamation.  You must also make sure you tell those who fund these sites they will be held accountable, if by no other means the boycotting of their businesses. 

2 comments:

Anonymous said...

Fake stories are more then people making up stuff out of whole cloth. Last night on the 6:00 news on 5 there was a story on a shooting on Falcon Lake. They broadcast commentary regarding the violence in the area from the woman whos husband was killed on the lake a few years ago. She is qualified to comment on one incident but what is the basis of her expertise on events before or since. She doesn't even live in Texas. Of course, she can have an opinion, qualified or not but it showed be presented as opinion, not fact. Yet her comments went unvetted and were presented as fact. This is frequent. The local T.V. news broadcasts some nutcase (this woman is not a nutcase) making sweeping comments regarding illegal immigration or some other topic as though it is fact when it isn't and no effort is made to counter the misinformation.

BobbyWC said...

Thanks for a great comment. The BV tries its best to educate. Sometmes I fail. But comments like your make the BV work. You were specific in your example and will make my readers think twice when watching the local news. Again thanks