Monday, November 02, 2009

LIVEBLOG: The Ciolli-White Debate

DISCLAIMER: Live-blogging is hard, we are sorry for the typos!

4.50 PM: We're here - LIVE - for the big Ciolli debate. We've gotten a green-light to live-blog the proceedings from the organizers, so stay tuned. We hear Hot Cakes his catering the reception - score! For some background, see here.

4.51: Troy Felver, the third-year in charge of the proceedings, tells us that it will be a Lincoln-Douglass style debate, with Ciolli going first and professor G.E. White going second.

5.04: We arrive. Should we ask Ciolli about his newly professed love for Charlottesville cuisine? (Thanks to a tipster for forwarding the above link to us - Ciolli, under his original moniker, highly praises the Golden Corral and other local favorites). Ciolli and Professor White are both here. Both wearing dark suits, with red ties; both look sharp. Who wins the debate remians to be seen, but they're both fashion winners!

5.08: Confused 1Ls trying decide where to sit . . . there are about 30 people here.

5:15: And we're off! Introductions abound . . . "Tonight we have a debate on whether there is and should be a duty to moderate online forums." Professor White and Ciolli introduced. Ciolli is currently working towards a tax LLM from NYU, and clerking for the Supreme Court of the Virgin Islands.

5:18: Question presented: "There should be no legal duty to moderate an online forum." About 50 people here now.


5.20: "This debate is about . . . preventing the Great Fire-Wall of China from coming to the US!" He's proceeding to give a summary of the current law even though it might "disadvantage him in terms of time."

5.23: "The courts have not spoke with a unified voice. . . " he's still discussing precedent, not much razzle-dazzle, but he seems to know the law. Perhaps this is what our oral advocacy has been lacking . . . Discussing § 230, and how courts have rejected attempts to "limit immunity", and how the courts have consistently ruled that "internet intermediaries don't have a duty moderate their content."

Main points
(1) § 230 doesn't immunize direct liability, only vicarious liability - this encourages defamation victims to hold those people responsible who actually did the defaming.
(2) § 230 helps maintain a free and open marketplace on the internet.
(3) As a matter of policy we should err on the side of subsidizing speech.

5.25: Cross:

White: "Does the picture you've painted of the internet change if most of the participants are anonymous - if § 230 is meant to encourage private lawsuits, if most posters on certain websites - including Autoadmit - are anonymous..."

Ciolli: See John-Doe lawsuits - - -the plaintiffs in the autoadmit case used this with some success.

5.29: White
"Crucial distinction between the internet regime and other regimes that allow tortious recovery for speech that is treated as defamatory . . . why should the internet be treated differently, if there's accountability in other areas." And there is a free speech in those analysis, anyway.

He analyzes the major basis for protection for free speech. He attacks the "market place of ideas" argument: "Suppose someone has identified you on one of these websites in a way you do not want to be. Is the remedy for you to get online and complain about it, thereby inviting others to complain about it? To what extent is there a marketplace of ideas if one of the people is an unwilling participant?"

"I think that § 230 should be modified to include a provision that includes vigorous enforcement of federal discrimination." He also says a limited duty to moderate on the part of website hosts. Also wants direct liability for those website operators who facilitate the defamation material.

Quote of the day: "Autoadmit is not AOL!" Says it's a "niche-website for law students to discuss law school and others [sic]".

Cross pt. 2
White: It's time we create some incentives for anonymous posters - "If Autoadmit has provided or facilitated the defamatory content," it should be liable. And "Autoadmit has done that," when it doesn't delete the content, it's facilitating it.

Ciolli: Have you ever operated a website, message board, or blog?

White: No, I have not - and that makes me a better judge . . . because I have no interest.

Ciolli: So would you be a better judge of medical malpractice because you have no expertise in that?

White: Well, I teach medical malpractice - "the doctors help set the standard, but they have to adhere to it - they don't get blanket immunity under § 230, so the analogy fails!"

We gotta award points to Ciolli on that one - we were not convinced of White's response as to why the analogy "fails"; Ciolli still made a valid point that there are unique challenges to moderating a website, which might necessitate immunity.

5.43: Ciolli Rebuttal
Talks about how people use defamation suits to harass, and rarely win. Getting rid of § 230 immunity means innocent victims and more potential for harassment.

"I don't believe in internet exceptionalism," or that § 230 treats the internet any differneltly.

5.46: Prof White Rebutal
It doesn't follow at all that because it's hard to win a defamation suit they shouldn't be brought at all.

Makes a pretty good point that we have a sort of "double-immunity" because have immunity for the site operators and effective immunity for the posters because they are anonymous!

Social mores argument: "What kind of social mores are we creating by this regime. It seems we are encouraging people to sit with the privacy of computer and say as many mean and inappropriate things as they want with immunity . . . it is the perfect setting for ... warped fantasists . . . and misogynists"

5.51 Ciolli Rebuttal #2
Notes that the intermediary site operator can't even tell whether the content is defamatory (and its often difficult to do so). . . and you want him to be obligated to remove it and face liability?

Questions (we'll type up the good ones)
Q: What standard for website monitor liability?
White: "I think the standard should be a reasonable care standard...not strict liability"

Q (Another UVA professor): Makes a point: "anonymity on the web is mostly an illusion." Describes how the anonymous commenters were unmasked by IP-tracking. Says that double-immunity discussed earlier is a myth.

White: There's software that can prevent this, though!

Q: But few people use it. Makes an analogy to copyright law, how § 512 has created a "heckler's veto" - "People say horrible things on autoadmit, but when you democratize speech, that's what happens."

Ciolli: "I agree". Read my article on this called "Chilling Effects"

White: The best remedy for bad speech isn't always "more speech." "Doesn't it follow that if you democratize [offensive] speech fully you democratize values where there are none."

"If we have a society where we allow anyone to say anything, then the next step is we have a society where we allow anyone to do anything?" Appalled by people hiding behind anonymity to make speech attacks on Autoadmit...

Ciolli [responding to a question about Autoadmit "ruining people's live"]: "It wasn't my website, and I wasn't moderator."

Our question: Mr. Ciolli, What would you have done differently w/r/t to the autoadmit debacle?

Ciolli: There was a lot of confusion about my role in Autoadmit [explains how he didn't have the ability to delete threads]...The Washington Post ran an article that said that Autoadmit was responsible for the T14 talent site [That posted the girl's photographs]. Even the [Virginia] Law Weekly was claiming that I was posting the comments that were offensive. . . "The major thing I would have done differently would have been to take a course in media relations."
ED NOTE: For some support, the Law Weekly said: "Anthony Ciolli, a third-year law student at Penn and then co-administrator of AutoAdmit, commented frequently about the “Top 14” contest." Presumably that is what Ciolli takes issue with.
Uh-oh. White says that the University of Pennsylvania Law School had a discussion with Ciolli to take down the threads, Ciolli says "That's not true." White says, "that's what was reported in the papers." Ciolli responds, "But it's wrong. You can't believe everything you read in the papers, and that's not true."

Q: "It sounds to me like this was more than 'hurt feelings' . . . these woman's live were ruined."

Ciolli: "Well I've experienced both sides of the aisle here." [explains the defamation he suffered]. But filing a defamation suit is not always the answer . . .

Q: "But . . . there are no women who post on autoadmit, ever!!" The questioner seems pretty mad.

Ciolli: "The posts should have gone down, I agree." But he goes on to say he's debating the legal duty, not the moral duty, and points out the questioner has confused the terms of the debate. Reiterates that he would take the posts down, but he doesn't think website operators should be legally required to do the same.

Annnnd we're out. We'll try to make the formatting look better later.

: Both sides had good arguments and so its difficult to say who "won" the debate. That said, we tend to side with Ciolli in that we agree that website operators should not be legally obligated (though they probably should be ethically/morally obligated) to remove offensive and/or defamatory content - primarily on the chilling effect argument: web operators will end up remove a lot more than what is "necessary" to cover themselves, and this will probably impede the effectiveness of first amendment protections. We also think that he made a good point w/r/t to the fact the current system allows for would-be plaintiffs (and did in fact allow for the autoadmit plaintiffs) to recover against the "anonymous" defamers / harrassers; it's very difficult to be truly anonymous on the internet . . .

And yes we are sorry again about the typos - don't forget this is a liveblog.


Anonymous said...

"White: No, I have not - and that makes me a better judge . . . because I have no interest."

WOW!! That quote explains a lot of what is wrong with judges, law professors and the realms they control.

Anonymous said...

Their lives were ruined? If Brittan Heller's life was ruined then we should all be so lucky:

Anonymous said...

"There are no women who post on autoadmit, ever" The questioner seems pretty mad.


Anonymous said...


J. Crew Model said...

Duttty to Moderattte

Anonymous said...

(1) Because of the cost-sensitivity of the mere creation of these forums, the set of activity deterred by a duty to moderate will be vastly overinclusive.

(2) To the extent that anonymity isn't a problem-- and it really isn't, especially for sites that make you register through an email address (which can provide a litigant, through subpoena, with weeks and weeks of login IPs to the offender's email account & a pretty damn high probability of ascertaining a poster's identity)-- we have a remedy for victims and a way to deter, in a more targeted fashion, offensive speech.

More on (1) above:

The internet is exceptional. We've all heard the meme: the interwebz provides a particularly inexpensive and accessible medium of communication.

Most importantly, however, it facilitates modes of speech--like online discussion forums-- where *thousands* of people participate in or learn from conversations that would otherwise never come into fruition.

Part of the way the internet does this is through the relative cheapness of hosting a website / running an online discussion forum, which makes it easy to overcome the tremendous coordination and free-rider problems that would plague a market solution to online discussion forums. There are sites with subscription fees and so on, but these are highly imperfect and would still result in a vast underproduction of good posts and solid online discussions.

So the *creation* of forums is *extremely* cost-sensitive. A small amount of goodwill (or vanity) is all that's necessary to overcome the free-rider problem, because the costs of running a site are small. As (aspiring) lawyers who constantly wrestle with / seek to drum up legal solutions to this problem, we really ought to appreciate just how wonderful and convenient this "free rider" solution is.

And no one can deny the value of the speech that occurs online. I don't know anything about free speech doctrine-- but to be clear, I'm talking about value in terms of any increase in well-being, and not simply value of the type recognized as particularly worthy of legal protection (or protection from the law, as it were).

There are countless sites about law, medicine, investing, automobiles, home repair, baskets, computers, music, memorabilia collection, pets, gardening, cooking, etc., with hundreds, thousands, tens of thousands of members who exchange information, get immediate assistance with problems, learn in a highly efficient manner made possible by the presence of experts, make sense of / digest / process new data that appears in the world on a daily basis, develop a sense of membership commentators once declared a tragic victim of the information age, and simply enjoy posting.

The type and extent of these benefits are unique to large and instant topic-specific discussions. And by the by, it would be easy to argue that autoadmit is chock full of valuable threads about admissions process, employment process, humor, random social and legal debates, etc. Even the threads offering bad advice are highly useful as a barometer of conventional wisdom in the utterly warped legal world.

This isn't a bullshit marketplace of ideas argument. To me, it's just a question of being somewhat attentive to costs and benefits when making law.

Anonymous said...

I do not care about the typos at all, but in case you were unaware of the option (and wanted to somewhat avoid the grammar police who have nothing better to do than complain about live blog typos), there are plug-ins for most web browsers that will give a squiggly red line under misspelled words being typed. Something like that might help with posts like this or where you take on the arduous tasks of copying 1980's LW articles.

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