The Pentagon Wants to Avoid Repeating Its F-35 Procurement Troubles

Here’s What You Need To Remember: For quite a long time the United States has justified its fighter aircraft projects on a combination of military necessity and military Keynesianism. Expensive fighters provide advanced military capability, but also provide jobs and investment across a broad swath of communities.

The “New Century Series” proposal offers a dramatic organizational and technological solution to the problem of modern fighter acquisition. However, politics may offer the biggest obstacle.

People want a new vision of fighter procurement because of the disasters associated with the F-22 and the F-35. Neither process generated a bad plane; the F-22 remains the world’s most dominant fighter, and the F-35 is coming along despite a long series of hiccups. But in both cases, the process generated a cascading series of political dilemmas that endangered the projects and created uncertainty for all the participants. This led to the cancellation of much of the Raptor buy and has turned F-35 acquisition into a political crisis in several different countries.

Will Roper wants to avoid the circus while still capturing technological gains. He hopes to do so by using high technology means to separate the design process from the production process, thus breaking up the dynamic that has led to metastasizing fighter projects. Instead of a gargantuan F-35 buy, the U.S. would acquire small, artisanal batches of fighters, then move on to the next design as technology and the strategic situation shift. Fighter production would come to look more like the system that generates new iPhones or new Corollas than the system that has given us the Raptor and the Panther. Unsurprisingly for a proposal of such ambition, there are significant unanswered questions. The project seems designed specifically with the U.S. market in mind, and how it might work on the export market remains to be seen. If executed, this would have a transformative impact on the defense industry, and on the politics of defense acquisition. 

For quite a long time the United States (and most of the other Western democracies) has justified its fighter aircraft projects on a combination of military necessity and military Keynesianism. Expensive fighters provide advanced military capability, but also provide jobs and investment across a broad swath of communities. The F-35 exemplifies this, and in fact, internationalized it. Lockheed Martin designed the F-35 development and production process in order to make it invulnerable… to Congress. Producing the fighter around the country made it difficult for Senators and Representatives to justify killing it. Selling the F-35 around the world (and integrating international partners into the production process) provided a backstop by ensuring international pressure to keep the project going. 

Let there be no mistake: This is a bad process, both for aircraft development and for democracy. But it also seems to represent the only way that advanced democracies can convince their constituencies to cough up enough cash to pay for increasingly expensive aircraft. Projects like the Gripen, Rafale, and Typhoon differ in the details because of variations in the domestic political environment, but all increasingly depend on the domestic and international dispersal of production as a political survival tactic.

The F-35 and its kin also emerged within a particular constellation of the defense industrial base. On the one hand, consolidation reduced competition for major contracts, and generally increased the size of defense firms. On the other hand, the demands of technology and supply chain management resulted in a major increase in subcontracting, with a bewildering array of firms producing components for final assembly. The big defense firms essentially became systems aggregators. On the labor side, the aviation workforce remained highly specialized and incredibly valuable, but the demands of complex technology pulled in a wider array of workers from different industries. Themselves politically powerful, these workers helped sustain the survival of the aircraft.

Roper’s project seems destined to upend all of that. Separating design and production would seem to break the oligopolistic position of the big defense firms, although their expertise at systems aggregation would remain necessary. New firms could enter the market on either the design or production side, although this might require a new system of contracting at the Pentagon. This in and of itself would disrupt the methods of political management through which the big defense firms have historically protected their programs; Lockheed can no longer simply decide to locate facilities in certain strategically important states and districts in order to get political protection. Finally, the shift to smaller design and production bureaus could have unpredictable effects on the security of the labor force. In Roper’s vision, more fighters would be built, but some of the savings of the approach would be generated by reducing labor costs and shifting to automation. Reducing labor costs is great, of course, except for labor.

This is all complex, dangerous thinking. And some suggest that it doesn’t really solve the big problems. As others have pointed out, some of the most serious financial problems facing the Air Force involve fleet maintenance costs rather than procurement costs, and this system would tend to increase rather than reduce that overhead. In a way, the proposal is reminiscent of President Obama’s efforts to reform the healthcare industrial complex, which generated far-reaching and often unexpected consequences. As Obama understood, cutting costs is great, except insofar as cutting costs necessarily threatens key actors (insurance companies, hospitals, labor) who operate in the healthcare field. Roper’s proposals may or may not be technically and technologically workable, but the political implications may end up being the most dangerous pieces of all.

Dr. Robert Farley, a frequent contributor to TNI, teaches at the Patterson School of Diplomacy and International Commerce at the University of Kentucky. He is the author of the Battleship Book and can be found at @drfarls. This article is being republished due to reader interest.

Image: Flickr.





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Why Do the Media Keep Uncritically Repeating Implausible Police Fentanyl Overdose Stories? – Reason.com

Last month, something beyond imagination happened in Southern California: A San Diego sheriff’s deputy appeared to overdose simply by touching fentanyl, or perhaps by just standing near it.

The thing that made it so astounding: Medical professionals agree that such a feat is essentially impossible. The thing that made it even more astounding: Several local, national, and international media uncritically regurgitated the claim. This episode is an important reminder that recycling government press releases does not qualify as reporting.

“‘I’m not going to let you die’: Fentanyl exposure almost kills San Diego County deputy,” read a late Friday headline on a story written by The San Diego Union-Tribune, which was printed in the Los Angeles Times. (It has since been changed.) “Fentanyl exposure knocks officer off his feet in seconds,” warned CNN. “Police trainee exposed to fentanyl during arrest collapses and almost dies but is saved by partner,” said The Independent, a British publication.

The articles were based on a video released by the San Diego County Sheriff’s Department, complete with last month’s body camera footage and one-on-one confessionals with the officers involved.

In it, you see Deputy David Faiivae—who was in training—approach the trunk of a car, where he says he sees a white powder. Shortly thereafter, his arms slightly rise, and he wobbles backward, collapsing on the ground.

“He was OD’ing,” narrates Corporal Scott Crane, as the video alternates between his body camera footage from above and Faiivae’s from the ground. Crane goes to this truck and gets Narcan, the nasal spray used to treat emergency opioid overdoses.

“I remember just not feeling right and then I fell back,” says Faiivae. “And then I don’t remember anything after that.” He then goes on to detail things after that, like how he was attempting “to gasp for breath.”

“I’m trying to not let him go,” Crane says. “Like, I’m just, I wanted him to know he wasn’t alone. It’s an invisible killer. He would have died in that parking lot if he was alone.”

It’s impossible to know if that’s true. But whatever medical event Faiivae experienced is almost certainly not what was presented by the sheriff’s department, and later by the media, because the science belies it—something that experts have known for a while now.

“If you have fentanyl powder on your hand for five or 10 minutes, it’s inconceivable that that would be sufficient to cause you to have an overdose,” David Juurlink, a toxicologist at the University of Toronto, told STAT news in 2017. (For those who are skeptical, here’s a video of someone testing that hypothesis.)

But what about particles potentially inhaled through the air? A research report produced by the American College of Medical Toxicology concludes that such an event would also defy scientific scrutiny. The report found that industrial workers who produce fentanyl require 200 minutes of exposure, unmasked, to have 100 mcg of the drug in their system. That still isn’t enough to overdose.

“Bizarre. Can’t absorb fentanyl through touch,” said Matthew W. Johnson, psychiatry professor and drug researcher at Johns Hopkins University, in response to the video. “Deputy likely had a psychological/panic reaction. And then release a PSA video of it? The level of ignorance is amazing.” It could have been, for instance, what scientists call the “nocebo effect”: the opposite of a placebo, where you panic over a drug because you know or feel it could be dangerous.

The video’s closing monologue, delivered by San Diego County Sheriff Bill Gore, hints at why the department would release the video to begin with. “Fentanyl deaths in California have increased almost 46 percent in just the last year,” he says. “The dangers of fentanyl are real.”

That’s true. But police departments and media outlets need not lean into fantasies to raise awareness. For all the surprise the video elicited, this is not the first time such a narrative has taken shape. “‘I was in total shock’: Ohio police officer accidentally overdoses after traffic stop,'” a 2017 Washington Post headline reads, detailing a story of an Ohio cop who allegedly OD’d after merely brushing the drug off his uniform. Local media are particularly likely to push the myth. A March headline from the York News-Times of Nebraska reads, “Sheriff: Deployment of Fentanyl reversal kit likely saved deputy’s life.” There are many more such stories.

I don’t subscribe to the belief that journalists have bad intentions when they accept the state’s press releases at face value. But it’s also not really journalism. More importantly, it has real-world effects. “Concerns about supposed occupational risks of fentanyl exposure to police have been especially persuasive in invigorating hyper-punitive laws, including drug-induced homicide and capital punishment for distributing this supposed ‘weapon of mass destruction,'” writes a group of researchers for the International Journal of Drug Policy. “Given the fraught history of U.S. federal government messaging and policymaking in the wake of 9/11, the invocation of this trope is especially telling.”

The media’s approach to the police is altogether wonky. Critics zero in on journalists’ penchant for jumping on police-related stories before having all the facts, saying their coverage doesn’t always provide the full context. There’s certainly some truth to those claims.

But the reverse—media giving complete deference to the state without question—is also a problem, though it goes largely unnoticed.

It’s not exclusive to faux drug overdoses. “‘Stolen Innocence’ human trafficking investigation in Florida leads to 170 arrests,” The Miami Herald reported last November. The only quotes come from law enforcement: “This investigation is a testament to how diligent our investigators work to enhance the quality of life for everyone in this community, especially our vulnerable population,” the Tallahassee police chief said.

The problem: The department’s report, copied and pasted into the piece, shows no evidence of a purported human trafficking operation as described by the officers. It shows a slew of arrests for prostitution. Nothing in the article interrogates that disconnect. The piece was written by a member of the Herald‘s breaking news team, which has won several Pulitzer Prizes.





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Deranged Libs Keep Repeating a Nancy Mace Conspiracy Theory That Was Already Debunked

Claim, without evidence, the GOP congresswoman pulled a Jussie Smollett and vandalized her own house for attention

Andrew Stiles • June 3, 2021 1:54 pm

A bunch of prominent libs on the internet are pushing a deranged conspiracy theory about Rep. Nancy Mace (R., S.C.), who filed a police report this week after her home was vandalized on Memorial Day.

The vandalism consisted of hateful messages spray-painted on Mace’s front steps and sidewalk. “All politicians are bastards,” one read. “F— you Nancy,” read another.

Internet libs pounced and subsequently seized on the attack, suggesting without evidence that Mace had pulled a Jussie Smollett and vandalized her own home for attention. Many were aggrieved that Mace had implicated Antifa, the anarchist cosplay group, by pointing out the vandal’s use of Antifa symbols.

Snopes.com, a liberal website and self-appointed purveyor of internet truth, published a “RUMOR ALERT” to let its readers know about the baseless claim many people are talking about. “Because we can’t independently confirm or deny the Mace rumor, we are not yet issuing a rating for this rumor,” the sleuths at Snopes explained.

Mace, of course, has denied vandalizing her own home. Nevertheless, the libs persisted in promoting the unfounded allegations via Twitter, the popular social networking website.

Pat Cunnane, a former Obama speechwriter you probably haven’t heard of but who looks just like the other Obama bros, found it suspicious that Mace did not file a police report (she did), and claimed without evidence that “it appears” as though Mace “forged the vandalism.” He eventually deleted the false tweet.

Former Jimmy Kimmel writer Rick Rosner, aka @dumbassgenius, said he “can’t stop tweeting about this craven grifter,” in reference to Mace, and wondered why the congresswoman hadn’t been “charged with falsely reporting a crime.”

Another longtime Kimmel writer, Bess Kalb, fueled the conspiracy theory by suggesting the vandal’s messages were written in Mace’s handwriting. Kalb compared the spray-painted messages to the text of a handwritten campaign letter signed “Nancy Mace,” which probably wasn’t even written by the congresswoman herself. Some people might be shocked to learn that politicians often assign such duties to their staff. Nevertheless, the comedy writer urged the FBI to investigate.

Prominent libs who amplified the amateur handwriting analysis include Parker Molloy, editor-at-large of Media Matters, and Matthew Chapman, a reporter for Raw Story. They were hardly alone. Kurt Eichenwald, a liberal journalist best known for looking at “tentacle porn” with his family, was impressed by the internet sleuthing. “Wow,” he wrote. “[I]t seriously looks like @nancymace is faking attacks on herself.”

Crooked Media podcast host Akilah Hughes chimed in as well. “Nancy why did you spray paint your own house to feel like a victim?” she wrote. “You need a therapist.” Several other verified Twitter users echoed her fake concern for the congresswoman.

As is often the case with these situations, the truth will eventually come out. The conspiracy theory will be debunked, or Mace will be exposed for committing an act of unfathomable stupidity. Someone, or perhaps many people, will have outed themselves as a deranged lunatic. Readers make their own determinations as to which outcome is more likely.





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Atlanta Journal-Constitution Issues Big Correction After Repeating Biden’s Claim Regarding Georgia’s New Voting Law

The Atlanta Journal-Constitution (AJC) issued a correction after falsely claiming that Georgia’s new election law will result in limited voting hours.

The claim has been pushed by President Joe Biden and The Washington Post’s fact check section recently gave the president “Four Pinocchios” after he said the law “ends voting hours early.” The AJC corrected its article and noted that the new law, signed by Republican Georgia Gov. Brian Kemp, doesn’t “limit voting hours.”

“A previous version of this story said the new law would limit voting hours. On Election Day in Georgia, polling places are open from 7 a.m. to 7 p.m., and if you are in line by 7 p.m., you are allowed to cast your ballot. Nothing in the new law changes those rules,” The AJC’s correction, issued at the bottom of the article, now reads. “However, the law made some changes to early voting. The bill adds a second mandatory Saturday of early voting for general elections but removes two weeks of early voting before runoffs.”

Biden condemned Georgia’s law recently, writing in a statement that: “Among the outrageous parts of this new state law, it ends voting hours early so working people can’t cast their vote after their shift is over.”

The Post’s fact-checker Glenn Kessler dove into why the claim was false in his own fact check. (RELATED: ‘I’m Glad To Deal With It’: Gov. Kemp Fends Off Corporate Criticism Of Georgia’s Sweeping Voting Law Changes)

“One could understand a flub in a news conference. But then this same claim popped up in an official presidential statement. Not a single expert we consulted who has studied the law understood why Biden made this claim, as this was the section of law that expanded early voting for many Georgians,” Kessler wrote.

“On Election Day in Georgia, polling places are open from 7 a.m. to 7 p.m., and if you are in line by 7 p.m., you are allowed to cast your ballot. Nothing in the new law changes those rules. However, the law did make some changes to early voting. But experts say the net effect was to expand the opportunities to vote for most Georgians, not limit them,” he confirmed.

Part of The AJC’s correction appeared to mimic Kessler’s statement. Prior to this correction, it issued an earlier correction that cited “experts” who “say the net effect was to expand the opportunities to vote for most Georgians, not limit them.” This comment was also in Kessler’s fact-check piece.

The change to the correction reportedly prompted “speculation it was ‘stealth edited’ to remove a line that the new law actually expanded opportunities for voters,” Fox News wrote in an article.

AJC told Fox News in a statement that its original correction was “open to misinterpretation” and was therefore “changed to improve clarity.”

“Specifically, the reference to experts’ view referred only to a very limited aspect of the law that relates to hours of the day that early voting is offered,” AJC said according to Fox News.





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Pinocchio Joe! The Lie Biden Keeps Repeating That Has Been Debunked by Even the Mainstream Media – The First TV

Joe Biden this week continued repeating an outright lie that even The Washington Post has debunked. It all centers on the new voting law in Georgia.

During an interview with ESPN, in which Biden said he would support moving the MLB All-Star Game out of Georgia, Biden said that

“This is Jim Crow on steroids what they’re doing in Georgia,” he said. “Imagine passing a law saying you cannot provide water or food for someone standing in line to vote. Can’t do that? Come on! Or you’re going to close a polling place at 5 o’clock when working people just get off. This is all about keeping working folks and ordinary folks that I grew up with from being able to vote.”

The Post’s fact checker, though, sets the record straight:

From The Post:

On Election Day in Georgia, polling places are open from 7 a.m. to 7 p.m., and if you are in line by 7 p.m., you are allowed to cast your ballot. Nothing in the new law changes those rules.

However, the law did make some changes to early voting. But experts say the net effect was to expand the opportunities to vote for most Georgians, not limit them.ADADVERTISING

“You can criticize the bill for many things, but I don’t think you can criticize it for reducing the hours you can vote,” said University of Georgia political scientist Charles S. Bullock III. He speculated that Biden may have been briefed on an early version of the bill — “there were 25 versions floating around” — and he did not get an update on the final version.

And what about the food and water part? That’s a complete mischaracterization. The law only makes it so that people passing out food and water have to be set up outside the 150ft distance that all people engaging in electioneering have to abide by. In fact, they can get even closer:

That makes sense, because people touting a certain candidate could easily skirt the rules under the guise of “helping” those in line.





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Is Accurately Repeating a Defamatory Allegation Itself Defamatory? – Reason.com

(A comment on the Incomplete Reports of Legal Proceedings as Libel thread leads me to repost this item from two years ago; there has been a lot of talk of libel since then, so I thought reposting it might yield an interesting conversation.)

Say that Don writes, “Teresa alleges Paul committed armed robbery.” Don’s statement is literally true: Teresa did allege that. But the statement Don is reporting on (Teresa’s statement) is false. Can Paul sue Don for defamation and win?

[1.] The republication rule: Often, yes. American defamation law has long adopted the “republication rule,” under which Don is potentially liable for defamation—if Teresa’s allegation actually proves to be false—even if he expressly attributes the statement to Teresa. See Restatement (Second) of Torts § 578. (You could tell that Don was destined to be a defendant just from the first letter of his name.)

The principle is that “Tale bearers are as bad as the tale makers.” And this is true even if Don distances himself from the allegation, for instance by saying that Paul has denied the statement, or that Teresa has reason to lie. A stark example: Martin v. Wilson Pub. Co. (R.I. 1985), which held that reporting a rumor that a local developer had been guilty of arson could be defamatory even though the newspaper expressly said that “[s]ome residents stretch available facts when they imagine Mr. Martin is connected with [the fires],” and that “[l]ocal fire officials feel that certain local kids did it for kicks.”

[2.] The “absence of malice” / absence of negligence defense: Of course, Don (like Teresa) would still have the benefit of the First Amendment defamation defenses that the Supreme Court has crafted. For instance, if Paul is a public official or a public figure, Don is immune from liability unless he spoke knowing that the statement was false, or at least having “serious doubts as to the truth of” the allegation. That’s the famous “actual malice” standard, though that term is confusing, because it doesn’t actually mean “malice.”

If Paul is a private figure, Don would generally be immune from liability if he reasonably (i.e., nonnegligently) believed the allegations. (In a few states, if Paul is a private figure and the accusation is seen as a matter of purely private concern, e.g., an accusation of adultery rather than a serious crime, Don might be “strict liable,” even if he reasonably investigated the matter; but most states require at least negligence in all cases.)

But often enough, a jury could determine that Don was negligent, or even that he was aware that the statement might well be false and thus entertained serious doubt as to its truth. Does that mean that Don is liable?

Well, it often means that, but it can’t always mean that, right? The theory behind the First Amendment exception for defamation is that “there is no constitutional value in false statements of fact,” because such statements do not “materially advance[] society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues.” But sometimes the very existence of an allegation or a rumor is indeed of importance to public issues.

Thus, consider the following two exceptions.

[3.] The fair report (of government proceedings) privilege: Say a reporter is covering a trial, in which witnesses are making assertions that the reporter knows are false, or knows are likely false; or say a reporter is reporting on some official government report. The law has long recognized that such coverage must be immune from liability, under the so-called “fair report privilege,” at least when the coverage is substantially accurate and evenhandedly summarizes the testimony. In many states, this is an absolute privilege, applicable even when the reporter knows that the statements within those proceedings are likely to be false.

The fair report privilege also generally extends beyond reports of court proceedings, to include reports of public meetings of government bodies, including legislative and executive bodies. In all of these cases, the very fact that something has been said—even if there’s reason to believe it’s false—is important for the public to understand what the government body is doing.

[4.] The possible neutral reportage privilege: But what if the statement is outside a government proceeding? Consider this incident, from Norton v. Glenn, a 2004 Pennsylvania Supreme Court case:

  1. William T. Glenn Sr., a city councilman, claimed that council president James B. Norton III and mayor Don M. Wolfe were gay, implied that they were child molesters, and claimed “that Norton had made homosexual advances toward Glenn which escalated to Norton grabbing Glenn’s penis.”
  2. A newspaper published an article accurately describing the charges and quoting Norton’s unequivocal denial; the newspaper didn’t endorse Glenn’s statements.
  3. Norton and Wolfe sued both the newspaper and Glenn, and the jury found that the statements were false.

Some courts would hold that the newspaper would be protected in such a case under a First Amendment “neutral reportage” privilege—

when a responsible, prominent organization … makes serious charges against a public figure, the First Amendment protects the accurate and disinterested reporting of those charges,

even when the reporter has serious doubts about the accuracy of the charges. (That’s from Edwards v. National Audubon Society (2d Cir. 1977).) And some other courts have extended this to certain charges on matters of public concern against private figures, and to statements made not just by responsible, prominent organizations but by any public figure, or even by any non-anonymous source.

There’s much to be said, I think, for the neutral reportage privilege. Sometimes, charges themselves can be newsworthy even if they are false: Among other things, for instance, Glenn’s charges against Norton and Wolfe could be important to the public because they reflected on Glenn’s fitness for office. And it seems bad in a democracy when elite insiders know what rumors are swirling around, but ordinary voters are denied access to those rumors

Nonetheless, a majority (though not an overwhelming majority) of courts that have considered the matter have rejected the neutral reportage privilege, because of the harm that false allegations—including ones passed along, rather than created in the first place, by the defendant—can cause to people’s reputations. In Norton v. Glenn, for instance, the Pennsylvania Supreme Court held that Norton’s and Wolfe’s lawsuit against the paper could go forward, and the paper could be held liable if it published Glenn’s statements knowing that they were likely false; the case eventually settled for an undisclosed amount. The New York high court has also rejected the neutral reportage privilege, as have several others.

And there are other exceptions as well.

[5.] The privilege for private communications of rumors, described as such: Defamation law applies not just to newspapers, broadcasters, bloggers, and the like, but also to people who speak to only a few listeners—an employer talking to its employees (or vice versa), a person talking to a friend, and the like. In such situations, courts have developed the following test, summarized in § 602 of the Restatement (Second) of Torts: When “the relation of the parties, the importance of the interests affected and the harm likely to be done make the publication reasonable,” it’s generally not defamation to “publish[] a defamatory rumor or suspicion concerning another,” even if you “know[] or believe[] the rumor or suspicion to be false,” if you “state[] the defamatory matter as rumor or suspicion and not as fact.” The Restatement offers two illustrations:

  • “A informs his friend B that there is a rumor he has heard concerning the honesty of C, B’s servant [here, likely meaning any employee -EV]. The fact that A knows nothing of C, and therefore neither believes the rumor nor has knowledge of facts that would lead a reasonable man to the belief, does not constitute an abuse of the privilege.”
  • “A informs his daughter B that there is a rumor that C, B’s fiance, is an embezzler. The fact that A believes the rumor to be false does not constitute an abuse of the privilege.”

The parties have a relationship (friends, family members, potentially coworkers) that makes it reasonable—even perhaps ethically obligatory—for them to pass along such rumors. This creates a so-called “conditional privilege” that will generally defeat a defamation claim even if the rumor proves false, so long as it’s just passed along as a rumor.

[6.] 47 U.S.C. § 230: But online speakers could have another source of immunity here—the federal 47 U.S.C. § 230 statute. That statute (enacted in 1996 as part of the Communications Decency Act) is famous for protecting online publications from being held liable for user comments. If you write unsubstantiated rumors in the comments to this post (and please don’t!), Reason and I aren’t going to be liable; Congress chose to provide such protection because it worried that otherwise online-service providers—such as America Online, back in the day—would simply refuse to host user posts or user comments.

But the statute has generally been read quite broadly, including to online publishers’ deliberate decisions to forward particular materials. Thus, in Batzel v. Smith (9th Cir. 2003), Ton Cremers ran an email newsletter about allegedly stolen art; Robert Smith submitted an item that alleged that Ellen Batzel possessed a painting that had been stolen by the Nazis from its rightful owner; and Cremers deliberately chose to include the item in his newsletter and on his site.

A federal appellate court held that this too was protected by § 230, because that statute broadly provides that “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.” Cremers was a “user of an interactive computer service”; Smith was an “information content provider”; Cremers was therefore immune from liability for distributing Smith’s email.

Likewise, in Barrett v. Rosenthal (Cal. 2006), Ilena Rosenthal forwarded an email that she received from someone else; that email contained charges against Stephen Barrett. Barrett sued Rosenthal as well as the original sender, but the California Supreme Court held that Rosenthal was immune under § 230. The court acknowledged that this immunity was very broad (paragraph break added):

We share the concerns of those who have expressed reservations about … [such a] broad interpretation of section 230 immunity. The prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications.

Nevertheless, by its terms section 230 exempts Internet intermediaries from defamation liability for republication. The statutory immunity serves to protect online freedom of expression and to encourage self-regulation, as Congress intended. Section 230 has been interpreted literally. It does not permit Internet service providers or users to be sued as “distributors,” nor does it expose “active users” to liability.

So if Teresa e-mailed Don the claims about Paul, and Don posted them on-line (which is what happened with Cremers and Rosenthal), Don might well be protected by § 230. If he decided to print the material offline, or even repeat it orally, it wouldn’t get such immunity, since § 230 only covers online publications. But online sites get this extra statutory protection.

On the other hand, many courts might find this result quite unappealing: Not only does it completely gut the republication rule for online publications, but it gives online media outlets a huge advantage over offline media outlets, within the core of the media’s traditional function—what a publication chooses to distribute to its readers—and not just as to comments. A court might thus refuse to accept Batzel or Barrett (which are binding precedent only in Ninth Circuit federal courts and in California state courts).

[7.] The bottom line: I told you it was complicated! That just shows how ridiculously over-complicated our legal system has become, some might say. No, others might say, it just reflects the crooked timber of humanity and the inherent complexity needed in rules that deal with a complex world.

In any case, I don’t make the law, I just report on it. And the short version of the law is that you can neither accurately say

Accurately repeating a false and defamatory allegation is categorically protected against liability, because the statement ‘Teresa accused Don of …’ is true.

nor accurately say

Accurately repeating a false and defamatory allegation is categorically subject to liability, because the accusation being reported is false and defamatory.



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