There is a concept in the law known as “jury nullification.” It essentially means that a jury has the prerogative to acquit a defendant, even though the jurors believe the defendant committed the act, because the jury disagrees with the law the defendant has been charged with breaking. It’s a weird little loophole that doesn’t happen often, but it’s always a possibility.
But I’m not aware of any provision that allows a judge to engage in nullification. To paraphrase John Roberts from his confirmation hearing, judges are supposed to call the balls and strikes. And presumably not change the strike zone.
But in a recent federal case from Utah, it looks like the judge may be engaging in a little nullification. The case involves a libel claim filed by the Diamond Ranch Academy against a woman named Chelsea Filer. Diamond Ranch is a residential youth treatment center. Ms. Filer had in her younger days been sent to a treatment center in Mexico called Casa by the Sea. Apparently, her experience there was terrible. She claimed she’d been abused and emotionally scarred by the experience.
As an adult, Ms. Filer has been an advocate against residential centers, including the Diamond Ranch. Ms. Filer took her campaign to social media and the Internet. She set up a Web site called “DRASurvivors.com” which featured testimonials from people who had been treated there. Ms. Filer also provided her own comments. And she took steps to solicit comments from readers, including setting up surveys asking people to describe their experiences there. The surveys unearthed very critical comments, many of which became part of the Diamond Ranch complaint.
Ms. Filer filed a lengthy motion to dismiss. One part of the motion focused on Section 230 the federal Communications Decency Act. That law, which celebrates its 20 year anniversary this year, provides that an operator of a Web site is not considered the publisher of third party comments. And that would mean that Ms. Filer could not be sued based on comments from 2 people who responded to the survey. At least one would think.
But the judge had other ideas. In her view, the fact that Ms. Filer solicited comments somehow made her complicit in their creation. In support of that finding, the Judge cited a case from a federal district court in Kentucky involving a Web site called “thedirty.com.” That Kentucky case got a decent amount of publicity in Cincinnati because the comments at issue concerned a former BenGal cheerleader. But that district court decision – which held thedirty.com liable for third party comments because thedirty.com allegedly solicited the comments – got reversed by the Sixth Circuit Court of Appeals. So that case actually offers no support for the Utah court decision. The law is quite the opposite.
For better or worse Section 230 of the CDA pins liability on the content creator and no one else. And that means no matter how aggressively the Web site operator solicits third party comments, those comments are created by the third party, not the Web site operator. To hold otherwise is to engage in judicial nullification.
Tough Facts Make Bad Law
Among the growing list of things I don’t understand – physics, the 2016 presidential election, the celebrity status of any of the Kardashians – is a relatively new addition. That would be the game called “knockout.” The object of knockout is to literally knockout some unsuspecting person with a sucker punch. Frequently, the “game” is recorded and the video uploaded. It is appalling.
But so is a proposed Illinois law to combat the game’s popularity. An Illinois state representative named Terri Bryant recently introduced a bill that would make it a Class A misdemeanor to knowingly upload a video of “a crime being committed, a gang-related fight, a battery committed with the intent to cause a person to be made unconscious, or other display of violence to a social media website or social networking website with the intent to promote or condone that activity.”
As someone who is far more likely to be the victim of a knockout than a perpetrator, I am not in any way a supporter of this activity. And I have no problem with punishing any players to the maximum extent of the law. But I don’t see how the proposed bill gets past the First Amendment. One core First Amendment principle is the notion that we do not criminalize thoughts or words. While I suppose the Founding Fathers never uttered the phrase “haters gonna hate” they essentially guaranteed that freedom for haters by adopting the First Amendment.
But the First Amendment isn’t unlimited. Despite its rather absolute language – “Congress shall make no law” -- in fact, there are plenty of laws on the books that limit and/or punish speech. Laws criminalizing fraud for example are speech based. And the Supreme Court has even permitted criminal prosecutions for “inciting” violence. But such laws are subject to very strict limits. Which makes sense when one considers that our country came into being following a violent overthrow of Britain. And in the lead up to the Revolutionary War there was plenty of fiery rhetoric – comments and ideas that surely inspired violent conduct.
So courts have struck a balance. “Incitement” speech may be punished if it advocates “imminent lawless action” and the speech is likely to incite or produce such action. This test allows the government to punish the speaker who stands before an angry mob and urges the mob to burn down a building. That hits both buttons – the call is for imminent action and the circumstances suggest it could happen imminently. But the more removed the facts are from that scenario, the less likely the speech can be punished.
Given the test for imminence and likelihood, it’s tough to see how uploading a video to a social media site could satisfy the test. The person uploading has no idea who is going to view the video, or when the viewing will take place. And assuming the people who view it are behind a desk, relaxing at home, or otherwise engaged, it’s tough to envision they will drop what they’re doing and go cold cock somebody because they’re inspired by the video. The proposed law is just too broad – meaning it could sweep innocent speech into its coverage – to survive a First Amendment challenge. Which means it’s likely this statute will itself be knocked out.