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First Amendment Malpractice

Posted by Andrew J. Barovick | Apr 01, 2012 | 0 Comments

Every now and then, I have to blog about something other than tort law, and this is one of those times.  But I can remain within the malpractice theme, because so much of recent 1st Amendment law has been so wrong-headed that calling it careless, i.e., negligent, would be generous.  It appears that people who are otherwise intelligent, at least in the legal sense, lose most cognitive functionality the moment they encounter internet-related 1st Amendment issues.

For instance, we on the internet are now governed by Section 230 of the Communications Decency Act.   Yet this act grants providers of information over the internet free reign to spout the most indecent streams of written sewage imaginable.  Why? So as not to limit or “chill” free speech over the internet.  You see, news sites, bloggers and the like did not want to be saddled with potential liability for merely being the publishing source of say, defamatory screeds.  After all, why should they take any responsibility, or exercise any judgment, concerning what pieces to publish?  That takes time away from selling advertising.  Now, they can dump any drivel, regardless of its worth, on us, without fear of criminal liabilty, or civil liability arising from intellectual property laws.  If the internet is a theater, they can yell “Fire” freely within it, with no consequences.

That is why I, for one, am excited to report that Sen. Joe Lieberman  of CT is taking steps to turn things around.  According to DailyKos , which picked up this tidbit on a 1st Amendment website , McIntyre v.,  Lieberman has submitted proposed legislation that would modify Section 230 of the Communications Decency Act.  The changes would return responsiblity for the conduct of anonymous blog commenters to the writer/publisher of the blog, who would be stripped of the immunity they now enjoy. As a result, anonymous terrorists, Holocaust-deniers and general psychopaths lacking the fortitude to sign their names to their overblown, under-considered comments may have their soap boxes kicked out from underneath them. That is a step toward decency, and away from 1st Amendment malpractice.

About the Author

Andrew J. Barovick

Mr. Barovick is a graduate of Columbia College and Cardozo School of Law. He began his legal career at the Queens District Attorney’s Office, where he tried over 20 felonies to verdict, and argued an equal number of appeals before the Appellate Division, Second Department, the New York Court of Appeals and the United States Court of Appeals for the Second Circuit.


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$500,000 wrongful death/medical malpractice settlement on behalf of patient brought to hospital emergency room with serious injuries who suffered complications while unmonitored and died.

$425,000 wrongful death/medical malpractice settlement during trial on behalf of senior hospital patient whose surgeon failed to timely address her worsening symptoms, resulting in her death.

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