Court cases aid free speech free-for-all

Barney bashers take heart: You now can post nasty online parodies of public television’s sappy purple dinosaur with little fear of reprisal, thanks to the free-speech advocates at the Electronic Frontier Foundation.

The San Francisco-based nonprofit also helped secure a recent California Supreme Court victory for intellectual freedom on the Internet, but the implications of that win are a bit more unsettling.

Let’s take a look at how both cases might affect the flow of information in the blogosphere – and how the second one should alert readers to treat online smears with great suspicion.

The Barney tale (or tail, if you prefer) suggests the tide may be turning against companies that bludgeon with baseless legal threats bloggers who parody or satirize trademarked and copyrighted material.

The First Amendment provides broad protection to satire and parody. That’s why Mad Magazine, “Mad TV,” Weird Al Yankovic and “Saturday Night Live” can freely deliver twisted takes on the intellectual property of others for fun and profit. It’s called non-infringing fair use.

But Barney’s owner, Texas-based Lyons Partnership LP, ignored that settled case law to put the prehistoric smackdown on humorous online uses and abuses of its kid-friendly critter.

For instance, Lyons lawyers issued a cease-and-desist letter to computer programmer Rob Carlson for posting a picture on his Epistolary.org blog of a chained Barney doll hanging upside down from a ceiling.

The company’s attorneys also went after Stuart Frankel, operator of Dustyfeet.com, a small site that depicts Barney as a satanic demon and criticizes him for turning “PBS into a merchandise mart.”

Such threats have a chilling effect on free speech because site owners usually pull the content rather than fight back in court. But Frankel refused to back down. The EFF sued Lyons on his behalf, and last week the company agreed to stop pestering him. (There’s no word on whether Barney offered to hug it out.)

“Those who misuse copyright should know that they can be sued for doing so,” EFF attorney Corynne McSherry said in a statement. “This settlement should send a message to those who want to use copyright law as a pretext for censorship.”

The second free-speech case isn’t so cuddly. On Nov. 20, the California Supreme Court ruled that Section 230 of the federal Telecommunications Act of 1996 shields from liability anyone who copies defamatory or libelous online material and then reposts it on a blog or other Web service.

“Section 230 provides far more protection for online speech than print journalists have under the standard body of defamation law,” confirmed Kurt Opsahl, an EFF attorney involved in the case. “That is a policy choice Congress has made” to head off “the chilling effect of distributor liability.”

The California court is one of only a handful to have ruled on re-poster immunity. Most Section 230 suits target deep-pockets service providers who host allegedly actionable material (and enjoy the same legal protections).

But unless the U.S. Supreme Court rules otherwise or Congress revises the law, Web users may be free to copy and paste defamatory or libelous statements they find online without legal consequences.

Anyone harmed by such acts can sue the original author of the smear (if that person can be found). But victims apparently have no recourse against those who would spread the material with an online bullhorn.

“Courts have noted it’s possible that providing such broad immunity can have troubling consequences,” Opsahl said. “And you can find rare anecdotes where it appears someone is gaming the system.” Overall, though, such free-speech protections will prove “greatly enriching to our society,” he contended.

I tend to agree. But I also feel badly for anyone whose reputation is more easily trashed online as a result of such rulings.