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)