“Cheap speech” has massively increased ordinary people’s access to mass communications -- both for good and for ill. How has the system of remedies for defamatory, privacy-invading, and harassing speech reacted? Some ways are predictable; some are surprising; some are shocking. Prof. Eugene Volokh (UCLA) will lay it out at a special Berkman Klein Luncheon on Monday, April 9th.
Notes from the talk
Eugene Volokh, Professor of Law at UCLA, presents research on libel law online, which was developed from the Lumen Database. The database is a collection of complaints about and requests for the removal of online content.
Volokh points out a problem with libel law in the current social context. Historically, only those in positions of power and privilege had access to mass communications. However, the rise of digital technologies, in addition to its myriad benefits, has also afforded the opportunity for anyone to damage another person’s reputation online. As Volokh explains, traditional approaches to libel, such as civil damages, only work when the defendants have money, which is often no longer the case. He summarizes this issue, stating, “the problem has outrun the scope of existing remedies.”
In response, criminal libel cases have undergone a period of “survival and revival.” Volokh cites approximately 20 cases per year across 12 states, which he claims suggests that there is an “appetite” for a remedy to this issue. Identity theft statues, harassment statues, and impersonation bans have all been used as “reinventions” of criminal libel laws. Injunctions have also become increasingly common. Traditionally, injunctions did not make sense for libel in print media because the act was usually over after it was published, but for libel online, where the effects can be persistent, injunctions may provide some protections. Still, Volokh notes, they can be difficult to enforce.
While researching in the Lumen database, Volokh began to notice some inconsistencies and strange patterns; for example, an address that did not actually exist, or a notary stamp number copied from an example form, used multiple times. What he found was a series of fraudulent cases. In addition to forged orders, there were also real orders with fake defendants, real orders with real defendants who were not the libelous authors, real orders with default judgements and no serious attempts to find defendant, as well as stipulations, uncounseled defendants, and dispute resolutions. The moral, he states, is that “every system attracts parasites.”
Based on this research, Volokh concludes that technological change does not necessarily lead to new rules, but rather technological change leads to enforceability change. Subsequently, courts end up enacting legal changes. Volokh welcomes a continuing conversation about the future of dealing with libel online.
notes by Donica O'Malley
About Professor Volokh
Eugene Volokh teaches free speech law, tort law, religious freedom law, church-state relations law, and a First Amendment amicus brief clinic at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O'Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit.
Volokh is the author of the textbooks The First Amendment and Related Statutes (5th ed. 2013), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 75 law review articles and over 80 op-eds, listed below. He is a member of The American Law Institute, a member of the American Heritage Dictionary Usage Panel, and the founder and coauthor of The Volokh Conspiracy, a Weblog that gets about 35-40,000 pageviews per weekday. He is among the five most cited then-under-45 faculty members listed in the Top 25 Law Faculties in Scholarly Impact, 2005-2009 study, and among the forty most cited faculty members on that list without regard to age. These citation counts refer to citations in law review articles, but his works have also been cited by courts. Six of his law review articles have been cited by opinions of the Supreme Court Justices; twenty-nine of his works (mostly articles but also a textbook, an op-ed, and a blog post) have been cited by federal circuit courts; and several others have been cited by district courts or state courts.
Volokh is also an Academic Affiliate for the Mayer Brown LLP law firm; he generally consults on other lawyers' cases, but he has argued before the Seventh Circuit, the Ninth Circuit, the Indiana Supreme Court, and the Nebraska Supreme Court, and has also filed briefs in the U.S. Supreme Court, in the Fifth, Sixth, Eighth, Eleventh, and D.C. Circuits, and state appellate courts in California, Michigan, New Mexico, and Texas.
Volokh worked for 12 years as a computer programmer. He graduated from UCLA with a B.S. in math-computer science at age 15, and has written many articles on computer software. Volokh was born in the USSR; his family emigrated to the U.S. when he was seven years old.