by Paul Alan Levy
As often discussed on this blog and elsewhere, decision after decision holds that Section 230 protects the hosts of message boards against liability for the content posted by the message board’s users. Section 230 actually stands as a critical bulwark protecting consumers’ ability to have their say about abusive companies, because without its immunity, mere demands to remove content would serve as a “heckler’s veto” in that it always costs a host more to evaluate challenged content than it can possibly earn by keeping that content.
The unanimity of this legal protection doesn’t seem to be getting through to general practitioners, however, if we can judge from the curious case of Florida lawyer Joel Hirschhorn. Although his law firm bio touts his past presidency of the “First Amendment Lawyers Association,” he is apparently not so keen on the free speech rights of others. He wrote to 800Notes, complaining about messages hosted on its web page about the phone number 954-472-0141, which is apparently a number that Hirschhorn client Adam Meyer uses to cold-call consumers promoting his “Adam Wins” service; if Meyer is to believed, members of the public who buy his daily and monthly memberships can thereby “invest” their money effectively in winning bets on sporting events. Some of the posts on 800Notes suggest that Meyer is not to believed, while others defend his record.
Hirschhorn’s message accused 800Notes of publishing “false and defamatory” content (referencing an exhibit that he did not provide) and demanded an immediate retraction and apology, citing a Florida statute that eliminates presumed and punitive damages if a retraction is issued. The response from Julia Forte urged Hirschhorn’s client to respond on the message board itself, but drew Hirschhorn’s attention to Section 230 and told him that, if he felt that litigation is the best response, his only remedy would be against the posters themselves. She warned that 800Notes seeks attorney fees against those who bring frivolous lawsuits in contravention of section 230 referring Hirschhorn to the page on the 800Notes site that discusses section 230.
Hirschhorn then slammed Forte for having said, in effect, “If you sue us, we will fight back and win.” No lawyer "worth his/her weight would ever guarantee a win (you just did),” and by doing so, Forte had shown that “you must have graduated at the bottom of your class from a third world law school.” Forte is of course not a lawyer, just a techie who had the idea for a reverse phone directory built by its users.
I then called Hirschhorn myself to try to discuss the law with him and to give him the names of cases from both the Florida Supreme Court and federal trial and appellate courts in Florida that support the immunity of Forte's company; I also hoped to explain the Dendrite process to him so that, assuming he could prove falsity and damages, he could pursue the anonymous posters if that was his client's choice. Hirschhorn bragged that he is not just a member but the founder of the First Amendment Lawyers Association, but acknowledged that he himself did not know anything about the law in this area; instead, he said, he hires others who know the law to help him. But when I suggested that Forte’s confidence in the immunity of her hosting company is justified, and tried to explain where the law is on this topic, he abruptly hung up the phone.
Indeed, it is not so clear that Hirschhorn follows the advice he gave Forte. The domain name for his web site, aquitall.com, could be interpreted as a claim that he always obtains acquittals in all his criminal-defense cases (it also may suggest that he hopes to appeal to clients who can't spell). The domain name may, in fact, violate the Florida Bar's advertising rules, which forbid lawyers to promise results; the Florida Bar has applied such restrictions to Internet domain names. Public Citizen has challenged those rules under the First Amendment; we have also brought First Amendment challenges against similar advertising restrictions in other states like New York and Louisiana.
As for Adam Wins – it is hard to see how hiring Hirschhorn to send empty threats is anything other than a losing proposition.