Judge Frank Easterbrook is among the three judges scheduled to hear oral arguments today in Chicago Lawyers' Committee for Civil Rights Under Law Inc. v. Craigslist Inc., according to the argument schedule released by the Seventh Circuit this morning.
Also on the Craigslist panel is Judge Diane P. Wood, who joined Easterbrook's provocative (albeit in dicta) suggestions in Doe v. GTE Corp., 347 F.3d 655 (7th Cir. 2003), that the online publisher immunity provided by Section 230 of the Communications Decency Act might not be as broad as many folks believe.
CDA Section 230, in a nutshell, provides users or providers of interactive computer services with immunity from lawsuits seeking to hold them responsible as publishers of unlawful content authored by third parties. Nearly all courts have interpreted CDA Section 230, a law written in 1996, as providing broad immunity to interactive computer services for third-party content -- regardless of whether the computer services provider exercised its statutorily protected right to screen objectionable content or whether it allowed third-party content to flow freely over its network.
Easterbrook's Doe opinion revealed a judge who is not particularly impressed with interpretations of CDA Section 230 that give online publishers no incentive at all to filter objectionable content submitted by third-parties. Screening for offensive third-party content is expensive, so why would online publishers do it if they received immunity regardless. "If this reading is sound," he wrote, then a statute titled "Protection for `Good Samaritan' blocking and screening of offensive material" would, in practice, "induce ISPs to do nothing about the distribution of indecent and offensive materials via their services." Easterbrook suggested in Doe that a plausible interpretation of CDA Section 230 would be that it provides immunity only in those cases in which the publisher is in fact screening for objectionable third-party content.
As it turns out, this is the same argument being urged upon the court in today's Craigslist arguments.
Update: A recording of the oral argument is available at the Seventh Circuit's Web site.
Update: Chicago attorney Michael Erdman posted his impressions of the argument at his Online Liability blog. Erdman's account of the argument casts some doubt on my ruminations that Craigslist is in a little trouble here.
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