by Paul Levy
General Motors’ retreat from its effort to use bankruptcy proceedings to shed tort liability represents a great victory for consumers. But the Washington Post reported that, in the course of the consumer campaign to achieve that result (which Public Citizen and other groups pursued in the courts as well as in the court of public opinion), GM successfully suppressed an ad by consumer groups. The story provides a stark reminder about the crucial role played by section 230 of the Communications Decency Act in protecting free speech by consumer interests online.
A group representing consumers who may have future product liability claims against General Motors and Chrysler ran an ad on Comcast criticizing those two companies for abusing the bankruptcy system – with the collaboration of the Obama administration – to shed liability for injuries occurring after the bankruptcy, caused by vehicles manufactured before the bankruptcy. GM, seeking to suppress the ad, complained to Comcast about supposed inaccuracies in the ad. But instead of telling GM that if it disputed some claims in the ad it should run a counter-ad explaining why it disagreed with the consumer groups, Comcast reacted to the request by pulling the ad down. Comcast apparently indicated that it might allow the paid ad to continue running once it verified the claims about which GM complained.
Contrast what would have happened if the ad had been running on a web site hosted by Comcast. Under section 230, Comcast would be absolutely immune from liability for any inaccuracies in the ad – even if GM had reason to argue that the consumers had deliberately falsified facts about GM instead of simply disagreeing about matters of emphasis or oversimplification. GM’s remedy would have been either to sue its critics – if it really thought it had a tenable defamation claim – or to post comments online explaining its position, or run its own web-based advertising to state its contrary views. Indeed, the ad can still be viewed on any number of web sites (such as here).
In the circumstances, GM was able to suppress an ad during the time when the dispute was most controversial, and hence when the ad had the greatest potential to grab public attention and be most successful in advancing its sponsors’ political objectives.
Unfortunately, GM has not responded to my attempts to obtain the letter so that I can assess its contentions about the ad. However, I assume that the complaint is about certain nuances of the controversy between GM and its potential victims. Because the controversy centers on a thirty-second TV spot, it is fair to assume that the ad simplified a very complicated issue. But that just makes the spot a fair game for trenchant criticism. There is no reason why GM should have been allowed to get the speech suppressed just by raising questions about its accuracy.
This raises the question of why a section 230-like regime should not apply to broadcast advertising. There are, of course, significant differences between the burdens that a cable company like Comcast faces with respect to assessing ads and the situation facing an Internet host (such as Comcast, wearing a different hat) that enjoys the protection of Section 230. There are only so many hours on which ads can be shown on cable; and when Comcast receives a proposed ad, it must take the step of placing those advertisements amidst its programming. Thus, Comcast is in a position to perform pre-broadcast review of the text. This is very unlike the situation facing the provide of an online interactive computer service, which allows thousand or even millions of users to place content online with not opportunity for review. And equally important, Comcast earns significant revenues from each broadcast of a single ad, and hence is able to offset its profits from those broadcasts against the cost of review. This is unlike the situation for most statements posted online, with respect to which the host earns tiny sums, at best, either through a modest monthly fee for web server space, or through advertising on the web page.
But the potential impact on speech is the same – the sponsor of a message on an important issue of public policy sees its message suppressed merely by claims of inaccuracy. Why should the broadcaster face the prospect of secondary liability for carrying the ad, and why shouldn’t the opponent of the speech be put to the burden of responding in the marketplace of ideas and, if it really wants to suppress the speech, why shouldn’t it have to go to court and persuade a judge that the speech is both false and defamatory before it gets the relief of suppressing the speech?
A more interesting question would be to explore the underlying assumption: does the "marketplace of ideas" actually work? And for whom does it work? In a country where about half the population believes that Saddam Hussein was behind 9/11...it would pay to reconsider the underlying normative commitment.
Posted by: Chris Hoofnagle | Monday, June 29, 2009 at 08:42 PM