MIT 6.805/STS085: Ethics and Law on the Electronic Frontier
in coordination with
Harvard Law School: Internet and Society
Fall Semester, 1999

Week 2, Sept. 13 - 17:
Dangerous Speech, Defamation, and Liability in Cyberspace

Overview

The emergence of the Internet is forcing us to revisit these principles and reinterpret them in the light of modern communications. For example, public figures typically have less protection from defamatory accusations than private citizens, on the grounds that public figures have better access to the media in order to defend themselves. But with the Internet, is everyone who can put up a Web page now a public figure? And is everyone a publisher?

And if damage is done because of Internet postings, who has liability? The individual who posted the material? What if the posting was anonymous? The internet service provider? The network carrier? Does MIT have liability for material that students post? Should MIT try to constrain student postings in any way?

Readings for Tuesday (be prepared to discuss these in class):

• Browse the page of readings for this class on Computer Communications and Freedom of Expression. From that collection, read and be prepared to discuss in class, Tribe's "Constitution in Cyberspace" and the ACLU briefing paper on "Freedom of Expression".
• Read the dissent by Justice Oliver Wendell Holmes in the Supreme Court case Abrams v. U.S. To find this, go to the section on the readings page on Supreme Court opinions, follow the link to the Abrams case, and scroll down until you find the part that begins "Mr. Justice HOLMES, dissenting".
• Prof. Jenkins goes to Washington, May 1999. "This is the story of how a mild-mannered MIT Professor ended up being called before Congress to testify about 'selling violence to our children' and what it is like to testify."
• Clinton Executive Order on Internet Conduct, August 5, 1999

Oral reports for Tuesday:

Topic	Presenter	Resources
Schenck v. U.S. and Abrams v. U.S.	Gina Nicholls	link to Supreme Court opinion from 6.805 collection
Chaplinsky v. New Hampshire and Brandenburg v. Ohio	Cynthia Johanson	link to Supreme Court opinion from 6.805 collection

• For the presenters: When you give your report, you should briefly summarize the facts in the case, but don't get carried away with detail. The main thing to focus on is the legal principle that came out of the decision, and why this is a landmark case. Make your report at most 5 minutes long. If you want to use overheads (not necessary), use at most two.

Tuesday class, Sept. 14: The First Amendment and dangerous speech

Readings for Thursday (be prepared to discuss these in class):

• Cubby v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991): A New York District Court held that that Compuserve could not be held vicariously liable for statements posted on a Compuserve bulletin boards. You needn't read the entire opinion, only a summary of the decision.
• Stratton-Oakmont v. Prodigy Services Co., 1995 N.Y. Misc. LEXIS 229 (1995), (dismissed by settlement, October 24,1995) (Supreme Court, State of New York, Index No. 31063/94, May 24, 1995): In this case, Prodigy was held liable for damages caused by postings on the Prodigy network. Here is an announcement of the decision and here is the complete text of the decision. In October 1995 the parties came to an agreement not to pursue the case, as reported by Associated Press. Prodigy filed for a rehearing, but this was denied. You need read only the announcement and the AP report.
• Michelle J. Kane, VI. Business Law: 1. Electronic Commerce: b) Internet Service Provider liability: Blumenthal v. Drudge, 14 Berkeley Tech. L.J. 483 (1999) (Get from Lexis: link works at MIT only)

Oral reports for Thursday:

Topic	Presenter	Resources
New York Times Co. v. Sullivan	Marissa Martin	Link to Supreme Court case from 6.805 collection
Gertz v. Robert Welch, Inc.	Deepa Parvathaneni	Link to Supreme Court case from 6.805 collection. See also the paper by Michael Hadley, "The Gertz Doctrine and Internet Defamation", cited below.
Zeran v. America Online	Aaron VanDevender	1997 Appeals Court decision. See also the paper by Lisa-Marie Mullen cited below, and the and the Kane article cited above.
Blumenthal v. Drudge	Helani Galpaya	District court opinion (1997), and Kane article.

Thursday class, Sept. 16: Defamation and liability.

Writing assignment: Due before class on September 28.

• Look here for details.

Additional resources for this topic

• Jonathan Zittrain, The Rise and Fall of Sysopdom, 10 Harv. J.L. & Tech. 495 (Summer 1997)

• Lance Rose, First Amendment Protection for Networks and On-Line Systems, in The Internet and Business: A Lawyer's Guide to the Emerging Legal Issues, Joseph F. Ruh Jr., editor, 1996, Computer Law Association.

• Michael Hadley, Note, The Gertz Doctrine and Internet Defamation, 84 U. Va. L. Rev. 477 (1998). ( Get from Lexis: MIT only)

• Stern v. Delphi Internet Services Corporation, Supreme Court of New York, New York County, 165 Misc. 2d 21; 626 N.Y.S.2d 694; 1995 N.Y. Misc. 197; 23 Media L. Rep. 1789, April 20, 1995, Look here for a 1995 commentary Stern v. Delphi: Are Online Services "News Disseminators"?, by Eric Schlachter.

• It's In The Cards, Inc. v. Fuschetto, 193 Wis. 2d 429 (1995), 1995 Wisc. App. LEXIS 489 (April 11, 1995) In this case, the Wisconsin Appellate Court ruled that an internet service provider was not required to publish a retraction of incorrect information posted on a computer bulletin boards, because they are not "periodicals". ( Get from Lexis: MIT only)

• Zeran v. America Online, 1997 U.S. App. Lexis 31791 (4th Cir. 1997). In this decision, the 4th Circuit Court of Appeals affirmed the decision of a Florida district court, that the Communications Decency Act effectively immunizes internet service providers from liability claims arising from third-party online content. See the discussion by Lisa-Marie Mullen in The Fourth Circuit has Ruled in Zeran v. America Online: Absolute Immunity for the Internet Service Provider?, student paper for Stetson University College of Law, Computer Law Seminar, Fall 1997.

• Thomas D. Brooks, "Catching Jellyfish in the Internet: The Public-Figure Doctrine and Defamation on Computer Bulletin Boards," 21 Rutgers Computer & Tech. L. J. 461 (1995): "This article will discuss the applicability of the public-figure doctrine to defamation cases arising between users of computer networks and bulletin boards. ... Given the ease with which computer network users can spread their name and message to other users, there is a question of whether such a user - if he alleges that he was defamed by a statement on a computer bulletin board - can be considered a public figure." ( Get from Lexis: MIT only).

• Jeremy Stone Weber, "Defining Cyberlibel: A First Amendment Limit for Libel Suits Against Individuals Arising from Computer Bulletin Board Speech", 46 Case W. Res. L. Rev. 235 (1995). ( Get from Lexis: MIT only)

• Marc L. Caden & Stephanie E. Lucas, Accidents On the Information Superhighway: On-Line Liability And Regulation, 2 Rich. J.L. & Tech. 3 (1996)

• Annemarie Pantazis, Note: Zeran v. America Online, Inc.: Insulating Internet Service Providers from Defamation Liability, 34 Wake Forest L. Rev. 531 (1999), ( Get from Lexis: MIT only)

• Andrew J. Slitt, Note: The Anonymous Publisher: Defamation on the Internet After Reno v. American Civil Liberties Union and Zeran v. America Online, 31 Conn. L. Rev. 389 (1998), ( Get from Lexis: MIT only)

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Last modified: September 16 1999, 10:59 PM