The California Supreme Court has ruled unanimously that Internet publishers are not responsible for posting libelous statements made by other, a ruling that sets a precedent only in California but appears to be consistent with similar rulings in other states. So that case, as reported by the San Francisco Chronicle, has to be a win for media.

But Net publishers need to heed the closing arguments scheduled for Monday in a federal case in Philadelphia involving the Child Online Protection Act that was passed in 1998 — but has not yet gone into effect due to First Amendment challenges. This federal ruling, expected early next year, could either maintain the injunction preventing enforcement of the law or lift it and make “it a federal crime to knowingly post Web pages that have sexually explicit material that’s ‘harmful to minors’,” according to a cNet article.

The easy and reflexive response would be to cheer everything and anything that advances the freedom of action of Net publishers and to some extent I share that sentiment, especially as regards publication that touches on public policy. But let’s get real. Most of media is about using content as the flypaper to grab eyeballs, and I get a little nervous when I hear an ambitious industry trumpet its powers and rights, and whisper when it comes to concepts like responsibility.

The Chronicle article on libel law and the Internet is a fascinating piece written by a colleague, Bob Egelko, who is a pro when it comes to covering the courts. As I read it the California decision has the effect of giving Net publishers greater immunity from libel actions than, say, newspaper publishers. As Egelko explains, a newspaper can be sued for publishing a libel, even if it’s written by an outside author, if the publisher “knew or should have known that the statement was false and defamatory.” (That’s the definiton of a libel). But, Egelko writes:

“Internet providers are not considered the publishers of information furnished by others. That means they’re not responsible for the content, even if they knew it was libelous, the court said.”

Elsewhere, he quotes from the unanimous decision written by Justice Carol Corrigan:

” ‘The prospect of blanket immunity for those who intentionally redistribute defamatory statements on the Internet has disturbing implications,’ Corrigan said. But she said other courts around the nation have interpreted the (the governing federal statute) identically.”

Switching gears to the federal case, we’re fortunate in having an article written by Declan McCullagh who has made himself over the years an expert on the intersection of technology and law. I have no way to improve on his opening, which I excerpt here from cNet:

“In 1998, the U.S. Congress enacted a sweeping Web censorship law that nearly everyone promptly forgot about.

Why? The explanation is simple: The American Civil Liberties Union immediately filed a lawsuit to block the U.S. Justice Department, and a federal judge granted an injunction barring prosecutors from enforcing the law. That injunction has been in place ever since.”

I gather from McCullagh’s piece that the current federal case will hinge on “the effectiveness of blocking software” — from which I gather that if the judge determines that people have the software tools to screen out unwanted smut that would weaken any rationale for the law.

I’ve gotta say I’m no fan of vague federal statutes that make it a crime to publish content “harmful to minors” but neither do I feel as a parent that I have any hope or pray of filtering anything that my teenaged boys might find on the Internet. My wife the uber-progressive, is even more zealous about keeping the boys from watching porn. (There was one day that I find humorous when I was in the living room and my wife was in the kitchen and the oohs and aahs of fake passion came through the house; turns out the younger teen had found the older teen’s porn cache and didn’t turn down the volume fast enough. That was a great family fight.)

Being a guy, I’ve consumed smut for its intended purpose and I don’t particularly think it’s ruined me. Nor do I think it will ruin the boys, at least not in moderation. But I am not satisfied with a completely laissez faire legal posture vis a vis stuff that gets piped into my house. One of the facts of modern life is that parents ask their kids to figure out the technology. So I’m not sure where this leaves me; I don’t particularly want Congress to make vague laws on content, but I have every reason to believe that, given the proliferation of publishing power, ever manner of perversity will be mass produced; and I can’t even figure out the controls on the DVD remote and I’m supposed to filter smut at my end because to hold otherwise would collapse the First Amendment. Gimme a break!