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Chilling Speech and Frivolous Lawsuits:
Responding to the DiMeo lawsuit against Tucker Max that raises the newly amended 47 U.S.C. 223(a)(1)(c) as a claim, Eugene writes:
  I've argued before why this law is constitutionally problematic. Here I just want to point out that critics of the new law, such as Declan McCullagh, were right to predict that the law would be used in troubling ways. I hope that eventually the courts will strike down parts of the law as unconstitutional, or interpret the statute very narrowly to avoid constitutional problems. But for now plaintiffs can burden defendants with this cause of action, and perhaps deter prospective speakers and Web site operators.
  Incidentally, I think Tucker Max, as the operator of the site rather than the poster, should be immune under 47 U.S.C. ยง 230, both from liability under the new statute and from libel liability. But the anonymous poster, if his name is discovered in the course of the litigation, would have no such immunity, and in any event Max's immunity claim, while strong, is unfortunately not open and shut.
  Unless I'm missing something, though, DiMeo's claim is utterly frivolous. 47 U.S.C. 223(a)(1)(c) is a criminal statute, not a civil statute. It does not support a private right of action, see, e.g., Jensen v. Shrively, 2003 WL 917969 (N.D. Ca. 2003); Moore v. Principal Credit Corp., 1998 WL 378387 (N.D.Miss. 1998), regardless of whether Section 230 provides immunity.

  In light of that, I'm not sure how Eugene's argument can work. Surely a statute is not burdensome on speech simply because a lawyer read Declan's article and decided to make a completely silly legal argument. What am I missing?
Paco (mail) (www):
Arguably an ISP provider is a common carrier under section 206, which provides a civil remedy.

If you think there is any merit to this argument, please delete this comment. I'd hate to have the Plaintiffs' attorney see this argument and use it to combat an eventual motion to dismiss.
3.20.2006 10:44pm
Paco (mail) (www):
The other thing is that, even with modest attorney's fees, putting together an appropriate motion to dismiss will cost a couple thousand dollars. Thus, the mere threat of litigation here holds the potential to deter much speech (for instance, I've had to filter a number of comments on my site expression varying degrees of disgust with Plaintiff, just because I don't want to deal with the cost of being sued, having to report being a party to a litigation to my local bar, etc). Not to beat a dead horse, but that's why an anti-SLAPP statute with fee-shifting and fees could be so useful. It's not just the merits of DiMeo's litigation, its the strategic use of the threat of litigation with little risk of any penalty to Plaintiffs that is ultimately the danger (though arguably I suppose this is a sanctionable by his attorney, and opens Plaintiff to an abuse of process/wrongful use of civil proceedings suit).
3.20.2006 10:59pm
C.T.:
Arguably an ISP provider is a common carrier under section 206, which provides a civil remedy.

I must disagree, though I admit I only gave the statute a cursory reading.

An ISP is an "interactive computer service" according to 47 U.S.C. 223(h)(2). In 223(e)(6), the statute says "Nothing in this section shall be construed to treat interactive computer services as common carriers or telecommunications carriers." Seems pretty clear to me.
3.21.2006 7:47am