From: Greg Broiles <gbroiles@netbox.com>
Date: Thu, 7 Nov 1996 20:21:22 -0800 (PST)
To: Jim Choate <ravage@EINSTEIN.ssz.com>
Subject: exclusion/censorship and the law
Message-ID: <3.0b28.32.19961107195807.0073290c@mail.io.com>
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At 09:27 PM 11/6/96 -0600, Jim Choate wrote:

>There is one important legal aspect which the operator of the Cypherpunks
>mailing list has opened themselves up for with this action. In short they
>have now opened themselves up for defamation and liable suites by imposing
>an editorial policy on the contents of this list (1).
>
>This opens up the potential, for example, for Tim May to sue the operator of
>the Cypherpunks mailing list now for posts from users (even anonymous ones)
>which defame or otherwise liable his character, reputation, or ability to
>pursue income in his chosen field. In short the operators of the list
>becomes publishers and distributors of the material. It is the legal
>difference between a bookstore and a book publisher. 

I don't pretend to have spent much attention on defamation, but the cases
I've seen don't go nearly this far. The two that come to mind are _Cubby v.
Compuserve_ 776 F. Supp. 135 (1991), and _Stratton Oakmont v. Prodigy_
(sorry, no cite at hand). _Cubby_ said that service providers were liable
*only when they had knowledge of the defamation*. Since the list is set up
(as far as I know) to forward messages (regardless of source) to the
subscribers without further editorial review, _Cubby_ suggests no liability
here. _Stratton Oakmont_ went the other direction (finding potential
liability for defendant service provider, on a motion for preliminary
injunction? can't remember) but has been widely criticized; that ruling
never faced any extended scrutiny because the parties settled. Also,
Prodigy, the defendant in Stratton Oakmont, exercised much greater
editorial control over postings on that service, and had the ability to
remove postings, which is something John Gilmore can't do.

So my impression is that you've got the tail end of a useful concept
(ability to control is frequently a factor used to determine liability) but
are making far too much out of it. One really big difference I see here is
that editorial control of the Cpunks list has occurred once (in 4? 5? years
of the list's existence), is on a per-person not a per-message basis, and
*does not function to restrict who can send messages but only limits Vulis'
ability to _receive_ them on his usual system(s)*.

You might take a look at Mike Godwin's article on net defamation at
<http://www.eff.org/pub/Legal/net_libel_godwin.article>; by now it's a
little old, but I don't think anything's happened since which would change
its reasoning. 

>Censorship is censorship, irrespective of the source of the limitation.
>Free expression is impossible in an environment of censorship.

The problem with absolute statements like this is that they ignore
important distinctions about scale - e.g., I think that it's very important
that people, generally, be free to discuss whatever they want in private
homes. But I also think it's very important that I be able to tell other
people that they're not willing to discuss whatever they want in *my* home.
Not because I'm especially excited about censorship, but because I enjoy my
privacy and my peace & quiet. So on the level of national rights, yes,
unrestricted speech is an excellent thing. But on the level of my living
room, unrestricted speech is a very bad thing. 

I don't think anyone who is arguing that it's fine to throw Vulis off the
list would make the argument that it would be acceptable for the government
to throw Vulis off of the Internet. 

The closest thing I can see to a First Amendment argument against Gilmore
is the "company town" argument, that the list is so much like a city or
town that it ought to be subject to the restrictions that the First
Amendment puts on municipalities and traditional public forums - but even
this (rather far-out) argument got shot down a few days ago when our
beloved Wallace of CyberPromo tried it in _Cyber Promotions v. America
Online_. The judge said "no way", and I think that argument's a lot more
plausible against American Online than against John Gilmore. 

>I have argued in the past that this list is a defacto public list because of
>the way it is advertised and to the extent it is advertised. All the protests
>by the operator to the contrary will not convince a court.

I don't think this makes any sense. "Public list" has no special meaning.
My impression is that you're trying to make an analogy to public places
which are privately owned like motels and lunch counters and amusement
parks, where the owners (despite being private actors) cannot discriminate
on the basis of race, gender, national origin, etc. (See, e.g., Civil
Rights Act of 1964, 42 USC 1981 et seq)

But I don't think there's any especially credible allegation that Vulis was
discriminated against on the basis of protected class membership; nor is it
clear that the Civil Rights Act can be extended to the operation of mailing
lists. (Can someone shed some light on this? I've spent some time reading
civil rights cases and can't remember one which gets even close. But I hate
to say "can't be done" on the basis of failing to remember a case where it
has been done.) My hunch is that (especially with this Supreme Court) the
First Amendment's right to speak and assemble freely would trump Congress'
attempt (pursuant to the Fourteenth Amendment, Section V) to regulate the
distribution of speech. 

If there's no prohibited discrimination (either because there's no
prohibition, or there was no "discrimination" within the terms of the
statute) then I don't see a cause of action. Wanting something you're not
getting isn't enough. Owners of "public places" like malls or stores or
restaurants are still free to exclude some people for non-prohibited
reasons (like not meeting the dress code, or having behaved poorly in the
past). And Vulis' behavior is certainly enough to suggest that his
exclusion from the list (which has not impaired his ability to speak to the
list) was neither arbitrary nor wrongly discriminatory. So I really don't
think that a civil rights-flavored argument even gets to first base here.

I am pretty disappointed to see that none of the people who profess to be
shocked and wounded at Vulis' exclusion have bothered to set up your own
lists. In my mind, whatever moral outrage you claim to have looks awfully
small compared to the relatively small burden of doing something about what
you say is bothering you. 

Someone said that saying "start your own list" is like saying "well, go
start your own country"; but the difference is that you can only live in
one place at a time, so starting your own country on some faraway island
means severing personal and professional ties in the place that you live
now, abandoning the countryside you've come to know and love, etc. But
there's no reason that you can't start your own mailing list and stay on
cypherpunks. As I pointed out a few days ago, you can even subscribe your
list to the cypherpunks list, so that your list is "cypherpunks++". I think
there are some copyright issues lurking here, but there are at least two
filtered cypherpunks lists running, as well as Bob Hettinga's e-$pam list,
which make use of cpunks traffic, and I'm not aware that any of those folks
have attracted suits for their reproduction of list traffic. So I don't see
any big obstacle to one or more people fixing what they say is a big
problem. So I'm left to wonder if this really isn't the big deal people
seem to enjoy making it into, or if it's a big deal, but free speech and
lack of censorship is worth less than some time and/or some money to these
folks. 

I think that "cypherpunks write code" can/should be understood as a
question, e.g., "what are you doing to change the things that bother you?" 
--
Greg Broiles                | "In this court, appellant and respondent are the
gbroiles@netbox.com         |  same person. Each party has filed a brief."
http://www.io.com/~gbroiles |  Lodi v. Lodi, 173 Cal.App.3d 628, 219 Cal.
                            |  Rptr. 116 (3rd Dist, 1985)