God bless the “tort régime” (with a brick)

There’s a wonderful online debate on Ars Technica involving two prominent lawyer-scholars and the issue of the broad protection provided websites by Section 230 of the Communications Decency Act of 1996. This is the law that shields sites from legal claims brought about by site users who post questionable material. This law has been one of the foundational underpinnings of growth and innovation on the World Wide Web.

John Palfrey is a Professor of Law and Vice Dean, Library and Information Resources, at Harvard Law School, where he also serves as Faculty Co-Director of Harvard’s Berkman Center for Internet & Society. His position is that we need to re-examine the law, that its protections are too broad.

Adam Thierer is a Senior Fellow at The Progress & Freedom Foundation (PFF) and the Director of PFF’s Center for Digital Media Freedom. He takes the opposite position.

Do yourself a favor and go read the whole thing.

Here’s the thing that nails this for me. It’s a statement by Palfrey: “My proposal would be to leave the question of negligence on the part of service providers in such situations to the tort régime.” The “tort régime.” Right. He’s talking about the courts. The problem with this is my old bugaboo, case law. When lawyers work with other lawyers and judges within the judicial branch, they can override laws passed by the people’s representatives. This is the fruit of Palfrey’s “tort régime.” Trial lawyers also make up a large percentage of the legislative branch, so we have lawyers making laws for lawyers to manipulate through the “tort régime.” This is also why we’ll likely never see serious tort reform in the U.S.

If some parent’s child is harmed through the actions of somebody on MySpace — which has already happened — the “tort régime” knows where the deep pockets are to tap for an award for their client and, of course, big legal fees. Section 230 of the CDA removes those pockets, and the “tort régime” doesn’t like that.

So, in my mind, this “debate” is really a much bigger issue than you might think, for it strikes at the heart of one of the most destructive cultural forces that we have in the west. The “tort régime” doesn’t believe that shit happens, and lawyers are very skilled at tapping the emotions of juries to get big settlements. If their own compensation wasn’t tied to such settlements, then I might feel differently, but the legal system — especially “case law” — is designed to grease the skids of the ambulance chasers of the world, regardless of the quality of the suits they wear. After all, we’re all victims entitled to our settlement, right?

Human nature is the issue in man’s inhumanity to man, and as long as the judicial side of our government can prosper within it, the “tort régime” has no incentive to do anything about it.

Leave Section 230 of the CDA alone.

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