Commenters — Please Don’t Sue Us for Shamelessly Exploiting You

Jeff Bercovici (Forbes) reports:

Jonathan Tasini, the labor activist and writer spearheading a class action against AOL and the Huffington Post, did not mince words when explaining his motives to the press this morning.

“In my view, the Huffington Post’s bloggers have essentially been turned into modern-day slaves on Arianna Huffington’s plantation,” he said. “She wants to pocket the tens of millions of dollars she reaped from the hard work of those bloggers…. This all could have been avoided had Arianna Huffington not acted like the Wal-Marts, the Waltons, Lloyd Blankfein, which is basically to say, ‘Go screw yourselves, this is my money.’”

I think Tasini’s claim is a loser. He has entered into a well-understood deal: He provides content, and is paid in eyeballs rather than dollars. Lots of people have taken time and effort to try to reach a much smaller audience (say, on a street corner), with no prospect of payment. Tasini was given a great opportunity to spread his ideas to a considerably larger potential audience, and he took advantage of it, presumably because spreading the ideas was compensation enough to entice him. It sounds like Tasini is trying to revise the terms of the deal into which he entered, but I’m pretty sure that the law won’t let him do that.

It’s true that modern law has departed in many ways from freedom of contract; in particular, ostensible volunteers have in some situations been found to be employees, governed by the Fair Labor Standards Act. One prominent case involved AOL, which recently bought the Huffington Post; AOL was found to potentially be an employer with regard to ostensibly volunteer discussion group moderators, but this was partly based on AOL’s apparent suggestions that if a person “volunteered” enough he “would be considered for a paid position.” Moreover, as the court pointed out in that case, another important factor is whether the volunteer “derives a ‘substantial advantage’ from the work performed”: “While Plaintiffs may have also enjoyed their participation in some of their activities for AOL, not all of the work performed was of such a nature. For example, administrative work, such as writing reports to AOL supervisors, was not the type of work a reasonable fact finder would necessarily find to have been performed for the Plaintiffs’ benefit.” (Hallissey v. Am. Online, Inc., No.99-CIV-3785, 2006 U.S. Dist. LEXIS 12964 (S.D.N.Y. Mar. 20, 2006).) It seems to me that the opportunity to reach a large audience for one’s ideas — with no real administrative work — would indeed be a substantial advantage that the authors received. (It’s true that Tasini’s Complaint asserts that it’s not clear he was getting that audience, but he was obviously getting enough that he was willing to keep writing.)

I checked with my colleagues Prof. Katherine Stone and Prof. Noah Zatz, and they agreed with me that Tasini can’t prevail under this theory. (Prof. Zatz also adds that the remedy for an FLSA violation — not that there was one here — would just be the unpaid minimum wages plus some penalties, and not the share of the profits that Tasini is asking for.) Employment law may set aside or revise some deals, but not all deals, and not this deal. So I think that Tasini’s lawsuit is essentially just political grandstanding. Perhaps he’ll win the publicity battle, if he can convince the Huffington Post audience that the Post is somehow acting unfairly. But I don’t think he has a viable legal claim, nor do I agree with any moral claim that he might have.

Disclosures: I used to be shamelessly exploited by the Huffington Post myself, until the managers there changed their posting policies in a way that seemed likely to yield fewer eyeballs. Then, “modern-day slave[]” that I was “on Arianna Huffington’s plantation,” I just took advantage of the traditional right of slaves to stop working. (What, that’s not a traditional right of slaves?)

I’m also ruthlessly enslaved by radio and television programs that ask me to appear on them, and that indirectly make money from my priceless punditry without paying me a penny. And of course I run a veritable forced labor camp here, where the authors of our million comments are (doubtless to their shock and horror) entirely unpaid, even though they drive up our page views and thus our income stream.

And remember: Every comment you write in response to this post is just further oppression of you. Have you no self-respect?