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51 Val. U. L. Rev. 1 (2016-2017)
Online Defamation, Legal Concepts, and the Good Samaritan

handle is hein.journals/valur51 and id is 13 raw text is: Article THE MONSANTO LECTURE ONLINE DEFAMATION, LEGAL CONCEPTS, AND THE GOOD SAMARITAN Benjamin C. Zipursky* I. INTRODUCTION It was an honor to give the Monsanto Lecture at Valparaiso University Law School. Many prior Monsanto lecturers have utilized this opportunity to sketch important theoretical frameworks. I have chosen to go in a different direction, one that is studiously down-to-earth. The Article principally addresses questions regarding the publication element of the tort of libel and how the doctrine surrounding those questions ought to be applied to defamation cases that involve the Internet. Most of today's interesting problems in American defamation law involve a question about the interaction of a federal statutory provision, the Communications Decency Act (CDA) § 230(c), with the common law of libel. I argue that the failure to take the doctrinal structure of libel law seriously has led courts to mangle Internet defamation law, effectively eliminating - for the Internet only - a fundamental principle called the republication rule.' This interpretation is alien from what Congress intended, from any reasonable reading of the relevant statutory text and from plausible public policy choices in the age of the Internet. As Ninth Circuit Judge Ronald Gould cautioned: Congress wanted to ensure that excessive government regulation did not slow America's expansion into the exciting new frontier of the Internet. But Congress did not want this new frontier to be like the Old West: a lawless zone governed by retribution and mob justice. The CDA does not license anarchy. A person's decision Professor of Law and James H. Quinn '49 Chair in Legal Ethics, Fordham University School of Law. I am grateful to Anita Bernstein, Mark Geistfeld, John Goldberg, Clare Huntington, Thomas H. Lee, Ethan Leib, Robert Rabin, Aaron Saiger, Anthony Sebok, Catherine Sharkey, Kevin Stack, Olivier Sylvain, and audiences at Valparaiso University Law School and University of Western Ontario for helpful comments on previous drafts. Auran Buckles has provided tremendous research assistance. 1 47 US.C. § 230(c) (2012). 1

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