There is nothing surprising about Friday’s ruling by the U.S. Court of Appeals ruling that Myspace is immune from a lawsuit brought by a parent of a sexually abused child. In Doe v. Myspace, Inc., the Fifth Circuit ruled that the Communications Deceny Act, 47 USC Sec 230 (”CDA”) bars claims against providers like Myspace for damages that arise out of publication by providers of content supplied to the provider. For law geeks keeping score at home, the Court relied on CDA Sec 230(e)(3).

This is the whole preemption thing again. At least this is true preemption that was clearly intended by Congress, rather than a political agenda being pushed by an out-of-control administration.

But that’s not as interesting to me as how this ruling shines a light on censorship by web 2.0 providers like Facebook and Myspace. The CDA protects publishers of content. So why would Facebook remove posts that were critical of Career Education Corp? Facebook couldn’t be required to answer to claims under the CDA. So what gives?

I can’t see any other explanation other than web 2.0 providers play a kind of 3-card Monte with censorship rules. When faced with a liability lawsuit, they rightfully raise the CDA as a complete defense. Fine. That’s how Congress wrote the law. While I have trouble with the result in Doe, it’s about personal beliefs and nothing relating to the correct interpretation of the CDA. But when other interests demand the removal of content–like unflattering posts–the provider should stick to the same position.

To be sure, I’m not a big fan of the CDA’s grant of wide immunity. In pre-web days, publishers like newspapers could be held to answer for harm caused by defamation if they recklessly published untrue information. Personally, I would prefer that model so that web providers take some responsibility for content. But maybe I’m misguided on this particular issue.

Interestingly, there may come a time down the road where web 2.0 providers’ inconsistent actions create a different set of problems. I can foresee that lawyers representing future Doe families will have new and interesting arguments to get around the CDA if Facebook censors for its friends but doesn’t take similar steps for trolling sexual predators. I realize this last thought might be a little obtuse. Apologies. Untangling it would only lead to a long and dense post that would surely bore you to tears. You can thank me for being a self-censoring law geek….

David Sugerman

On his U.S. visit, Pope Benedict XVI took pains to publicly declare his shame and embarrassment over the Catholic Church sex abuse scandals.  I have not handled any of the priest sex abuse cases, but I’ve watched them with interest because I’ve handled my share of other sex abuse cases by people in power.

The good part of this is that a reckoning happened, though it took decades and came too late for many who survived the horror of childhood sex abuse.  The reality is that this problem did not magically appear out of nowhere. The complaints about priests were made for years, and Church officials sheltered and shuffled those who had been the subject of complaints.

The reality is that it took lawsuits from within the civil justice system to visit shame and embarrassment upon the Pope.  I suppose that it’s human nature to deny and avoid the responsibility for causing horrifying injuries. Still, but for these lawsuits, we would be living in a continuing era of silence.

When people rant about the evils of the civil justice system, I always want to ask how they think the dark secret of church sex abuse would have been exposed without our system of justice.  Because if they have an answer, I surely want to know.

David Sugerman

Katherine Edson is a hero. She was one of the sedated patients who was molested by Dr. Burleson. Despite his knowledge of the abuse, Dr. Jay Malmquist apparently refused to disclose to the DA Ms. Edson’s identity. So she was kept in the dark for years.

Today’s news brings Ms. Edson’s story into focus. Ms. Edson filed a lawsuit recently and vowed to work for legislation that requires disclosure when a physician knows about sexual abuse of a patient.

For those who might criticize Ms. Edson, it shouldn’t have come to this. Dr. Burleson starts it by molesting anesthetized patients. And of course that is its own set of problems. But it appears that Dr. Malmquist hid the facts. He may have done so to protect either himself or Dr. Burleson. It’s not fair to draw firm conclusions about what happened from claims in pleadings or newspaper stories. Even so, I have no doubt that Ms. Edson is a hero for standing against secrecy.

Regardless of why Dr. Malmquist hid the information, hiding nurtures abuse. The thing about sex abuse is that it lives and breathes and grows through the medium of secrecy. This is especially true when the abuser is a physician. Kudos to this young woman for standing against secrecy.

David Sugerman