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March 18, 2008


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Eric Goldman

Maybe we don't need to rewrite 230 to make it more restrictive but, as you suggest, we should seriously consider flipping the other way and provide broader safe harbors for newspapers. In that sense, 230's online exceptionalism does teach us how we can use legal favors to invigorate an industry. Eric.


Of course, if we got rid of these meddlesome, social engineering laws, newspapers and online publishers alike could enjoy a little something called freedom. And their readers could enjoy another thing that we once respected: property rights and freedom of association.

Ruben Rodrigues

I have about zero knowledge regarding the print-publication classifieds industry, but to me it seems like one distinction between the internet v. print applicability of CDA 230 and the FHA is the notion of editorial control. In print, someone at the intermediary presumably reviews, organizes, and reads the classified posts (it's not clear to me whether they do this BECAUSE of legal liability for posts, or whether they'd engage in screening anyway for quality control purposes). If the print intermediary is engaged in this sort of editorial control anyway, imposing the costs of further screening for the purposes of the FHA could be minimal. In the craigslist scenario, the intermediary simply allows direct posting by users, imposing screening costs could be prohibitive.

This distinction also helps explain the Ninth Circuit's original decision in Roommates.com (currently awaiting en banc review). In that case the internet intermediary provided categories which might have violated discrimination laws, which could be seen as an exercise of editorial control excepting the intermediary from liability under CDA 230.

As for the imbalance of laws regarding print and internet classifieds, if newspapers aren't going to exercise editorial control on classifieds, maybe they deserve the same protection as CDA 230.


A solution that couldn't happen overnight
- split the Internet with domain extension control. Certain domains, i.e. ".info", ".com" or ".biz", fall under the protection of the Communications Decency Act of 1996. These domains, by definition, would be known by the public to not 'necessarily' abide by FHA or other media stipulations or ratings (i.e., FCC).

Then on the other side of the coin, regulate the content of 'accredited' domains with their own domain extension - i.e., create a new extension like ".nws" or whatever. These domains that 'qualify' for this accredited domain extension would be restricted in content by a centralized body (i.e., FCC or otherwise). Therefore, when a web-surfer or researcher wants quality "News" then they go to domains with the ".nws" (or whatever it would be) extension.

Now some will not read all of this post and say I'm "regulating the free speech Internet" - to those of you I say, read the whole post. I'm only stating that if you want some credibility as a news source, then you would have to abide by the same restrictions that all public newspapers and TV stations already abide by.

This would also make headway in citing information - as citations from .nws domains would naturally carry more weight than citations from .com or .whateverelse domains - and maybe finally rid the world of the opinion that just because they saw it in somebody's blog, it must be true.

This is a side-track from the Craigslist issue, but is a plausible solution to the greater battles of print vs. post.

Uzair Kayani

Hi Professor Picker,

I am not sure this is a special problem for newspapers. It appears the precedents are widely dispersed, between the Ninth (Roommates.com) and Seventh (Craigslist)Circuits, for example.

The reason seems to be that Internet content providers are evolving much faster than newspapers, and are therefore less understood. Courts are investigating whether there are differences between providers in the way ads are formatted and filtered. In the case of newspapers, these matters may be better understood, and the law is accordingly better settled.

And maybe the newspaper/ Internet distinction is not the issue here: under Craigslist, a newspaper might be able to avoid the FHA by proving that its staff is very small and overworked.

As in any new field, judges appear to favor minimalism here. New industries are often subject to minimal regulations (consider mutual funds, hedge funds, and so forth), even when they are competing with more regulated competitors (investment companies). This does not typically wipe the competitors out. If something is killing newspapers, the FHA may be only a trivial abettor. Perhaps this is irreversible creative destruction, and we are focusing on the wrong symptoms. The Circuit disagreement should sort itself out without killing newspapers.

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