Tanner Andrews

In England, it is against the law to print “the king is a fink!” That is libel against the crown. Also, it might be treason, depending on whether the speaker knows that he is saying it.

Here in the States, you may observe that the king of England is a fink. You should not plan to travel over there afterward. However, so long as you stay stateside, you should be OK.

In Florida, you may also state that the governor of Texas is a fink. Sure, you better hope that they do not get any long-range ballistic weapons out there, because those guys get a little crazy. Still, so long as you have the evidence to back it, you are probably OK.

In either of these cases, however, the blame is on you. If you say that the king or the governor is a fink, when he is not, you may be liable.

Imagine, however, that I own factories producing poster boards and markers. In England, I could be liable when my markers were used on a poster saying that the king is a fink.

In 1995, a state court in New York followed the English principle. It held an online service liable because it did not pay attention when someone said an investment company were a bunch of Finks.

In a rare show of diligence, Congress enacted what we now know as Section 230, providing immunity from suit for third-party speech. That is, when someone gets offended, he has to go after the guy who said he was a fink.

The risk of liability is not the big deal, though you may hear otherwise. It is the cost of defending the meritless suit through discovery.

As cops say, “you may beat the rap, but you cannot beat the ride.” Quick dismissal is the point of Section 230.

Today, I can sell poster boards and markers so you can say that someone is a fink. With Section 230 immunity, rather than suing my factories, or their internet analogues like Facebook and Twitter, the offended person must go after the speaker.

Without such immunity, I either defend silly suits or close my factories. And we would definitely shut down services like Facebook and Twitter. Not because my factory is ultimately liable for the bad things, but because we know what offended people are thinking — sue the easy target, and hope for a settlement.

— Andrews is a DeLand-area attorney and a longtime government critic. For purposes of the column, he finds it convenient that there is so much government to criticize.


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