Stanley Fish Leads the Charge Against Immunity for Internet Hosts -- But Ignores the Costs

by Paul Alan Levy

The New York Times’ online edition carries a column by Stanley Fish, touting a book of essays by several law professors who, according to Fish, decry the ease with which offensive accusations and opinions can be published online and call for new limits on this freedom of expression. To hear Fish tell it, “The answer given by the authors in this volume involves the repeal or modification of Section 230 of the Communications Decency Act” coupled with a drastic curtailment of the protections for the right to speak anonymously online. Not having read the whole book yet, I can't vouch for the accuracy of Fish’s summary.

According to Fish, “Saul Levmore (Nussbaum’s co-editor) suggests that immunity might be conditioned on the willingness of a provider either to take down a message after notice of its falsity or defamatory character has been given, or 'to enforce non-anonymity' and thus open the way for an injured party to seek redress. The law, writes Anupam Chander, 'should allow the individual to find information to lead her to the person who committed the privacy invasion.'”

If Fish accurately portrays their essays as using these theories to curtail section 230, then Saul Levmore and Anupam Chander, and the other authors to whom Fish attributes the desire to wipe out section 230, haven’t taken a careful look at what the law is now. Fish plainly hasn't.