Tuesday, March 18, 2008

Yet another reason newspapers are dying: the courts!

Randy Picker in The University of Chicago Law School Faculty Blog:

Friday’s decision in the Craigslist case in the Seventh Circuit offers yet another reason why newspapers are losing ground-and quickly-to their online competitors: newspapers face tougher laws than the online firms. As (our) Judge Easterbrook’s opinion makes clear, publish a “No Minorities Welcome” ad in the Chicago Tribune and the Trib violates the Fair Housing Act. But put the same ad on Craigslist and, after Friday at least in the Seventh Circuit, Craigslist faces no liability under the FHA given the protection given to it under the Communications Decency Act of 1996. We often talk about media neutrality-the idea that a particular set of rules should apply independent of the medium via which the content is delivered. This is just the opposite-media bias-but not the usual version; this is bias against one medium-classified ads in newspapers-in favor of another-the Internet. [...]

Section 230(c) says that it is intended to protect “Good Samaritan” online providers who jump in to screen offensive content, but it starts with a safe harbor: “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” If a newspaper publishing a discriminatory ad is liable under the Fair Housing Act-the triggering language there is “[t]o make, print, or publish"-we should think that an online service provider would face the same liability. Media neutrality. Section 230(c) seems to say otherwise, and so the Seventh Circuit concludes. Section 230(c) seems to call off the usual rules that cause us to treat the Chicago Tribune as printing and publishing.

I read this case in preparation for a panel tomorrow morning that I am doing at the Internet Video Policy Symposium. One of the key issues there is the extent to which we think media platforms like YouTube should be in the business of filtering content: screen for copyright violations and yet allow user-generated content to flourish. The Craigslist case is another filtering situation. Newspapers typically run with a built-in choke point, but Craigslist doesn’t. But these designs aren’t necessary. Newspapers could just take all ads without filtering classifieds; indeed, they seem to be set up to do that if they can do so legally. I’m not sure that it is meaningful just to use labels like newspapers-filtering presumed-and common carriers-the telephone system-where we assume no filtering.

Instead, we need to focus on what is at stake. The situation in Chicago Lawyers’ offers two separate reasons for looking to push more liability on service providers like Craigslist. The first is to more fully implement the ideas of the Fair Housing Act: if discriminatory ads are offensive in newspapers, they should be offensive on Craigslist. Second, newspapers are in enough trouble without facing legal disabilities compared to the competitors who are leaving them in the dust. So either free the newspapers and further gut the Fair Housing Act or take the FHA seriously and apply it to Craigslist. Doing that would mean rewriting Section 230(c). (This isn’t a universally-held view; see, for example, this post by Eric Goldman.)

Obama’s speech

It must be seen in its entirety. It lived up to my every hope. I will watch with groups of students in the coming days and discuss it again and again. The full text is in the extended entry. I urge you to please watch. No excerpt can possibly do it justice.

Read the rest of "Obama’s speech" in the extended entry.

DC v Heller argument afterward

Linda Greenhouse in the NYTimes:

A majority of the Supreme Court appeared ready on to embrace an interpretation of the Second Amendment that protects the right to own a gun for personal use.

Lyle Denniston at SCOTUSblog:

The Supreme Court’s historic argument Tuesday on the meaning of the Constitution’s Second Amendment sent out one quite clear signal: individuals may well wind up with a genuine right to have a gun for self-defense in their home. But what was not similarly clear...was what kind of gun that would entail, and thus what kind of limitations government could put on access or use of a weapon.

Standing with Obama

As Obama faces this toughest challenge, I stand with him.

I have wanted him to talk race for a long time. I’m sorry this is how it came about; but better now than later.

He’s been toughened enough in recent days. I believe the man can do it. And having done it, maybe this will lift us out of the muck the Dems have been in these last few weeks.

Doug’s a Temple grad; PA is my childhood home; we love Philly.

I will watch with the first real hope I’ve had in way too long. 

Sunstein’s 2nd Amendment primer

The Supreme Court is scheduled to hear arguments this morning in a case seeking to preserve the Washington DC ban on handguns. The court has not conclusively interpreted the Second Amendment in the 216 years since its ratification. In the most closely watched case of the term, the court plans to release audio recordings of the arguments as soon as they conclude.

Last October Cass Sunstein, the Karl N. Llewellyn Dist. Service Professor of Jurisprudence at the University of Chicago Law School, did a talk on What does the Second Amendment mean? as part of the Chicago’s Best Ideas Series. It is an excellent Second Amendment primer. The lecture also appeared as a piece in The New Republic.