Author: TSA Press

Everyone loved Jurassic Park. It was one of the most groundbreaking films of all time, had a massive cultural impact, and the CGI still holds up today. Then came The Lost World, which recycled much of the what made the first film a success, to lesser effect. Next was  Jurassic Park III, to lesser effect yet. Fourteen years later, the franchise returned with Jurassic World, which largely repeated the plot of the first, but was well received because of the long wait, but then came Jurassic World: Lost Kingdom, which was less so.

The franchise’s diminishing returns came because it kept doing the same thing. Afraid to take chances, it repeated itself to its detriment.

So too is it dangerous to fall into the trap of boilerplate. Both in contract drafting and briefing, it can be tempting to reuse material without enough thought.

DON’T REPEAT YOURSELF

But you shouldn’t reuse that material. You can always do better if you take the time to rewrite it. You’re in the business of producing bespoke products, not mass produced ones.

Following a formula is fine, but any time you just drop in text you’ve used before, the reader zones out, just like you did when you watched Fallen Kingdom. And that’s especially bad when the reader is you or a judge.

DON’T JUST COPY LANGUAGE FROM OTHER CONTRACTS

One of the worst possible attitudes when drafting contracts is that anything is “boilerplate.” That attitude is how sloppy language gets unthinkingly copied, half amended, and eventually results in a rambling, tangled mess that no one reads until there’s a dispute, while the writer justifies it by telling themselves and anyone who asks that it’s “standard boilerplate.”

Don’t do that. Do your own work and actually write the provisions you’re drafting. It’s fine to look at precedent, but if you don’t understand why something’s there, you shouldn’t be putting it in your contract.

WRITE YOUR OWN BRIEF

You should also write your own brief. It doesn’t matter if it’s the fourth similar motion in a row in the case and you really want to just reuse the same statement of facts. Write it again and make it different and better.

First, the reader will stop reading. Every reader zones out if they think the writer didn’t put thought into what they’re reading, and often the reader will just skip ahead. You have limited briefing space and you don’t want to waste it on filler. And if it is wasted, it shouldn’t be there at all.

Second, almost anything you write will be improved by rewriting it, especially after a break. No matter how great what you wrote three months ago was, doing it again now will make it better.

TAKE EVERYTHING YOU WRITE SERIOUSLY

In short, you should treat what you write seriously. You’re a professional writer and you should act like it. Stephen King doesn’t phone it in, even if his works are similar. You shouldn’t phone it in either. Instead, take some pride in your work, sit down, and give it another go. Then maybe watch Jurassic Park again, because the original really does hold up.

Matthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is of counsel at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.

There seems to be some recurrent confusion about Section 230: how can it let a website be immune from liability for its users’ content, and yet still get to affect whether and how that content is delivered? Isn’t that inconsistent?

The answer is no: platforms don’t lose Section 230 protection if they aren’t neutral with respect to the content they carry. There are a few reasons, one being constitutional. The First Amendment protects editorial discretion, even for companies.

But another big reason is statutory, which is what this post is about. Platforms have the discretion to choose what content to enable, because making those moderating choices is one of the things that Section 230 explicitly gives them protection to do.

The key here is that Section 230 in fact provides two interrelated forms of protection for Internet platforms as part of one comprehensive policy approach to online content. It does this because Congress actually had two problems that it was trying to solve when it passed it. One was that Congress was worried about there being too much harmful content online. We see this evidenced in the fact that Section 230 was ultimately passed as part of the “Communications Decency Act,” a larger bill aimed at minimizing undesirable material online.

Meanwhile Congress was also worried about losing beneficial online content. This latter concern was particularly acute in the wake of the Stratton Oakmont v. Prodigy case, where an online platform was held liable for its user’s content. If platforms could be held liable for the user content they facilitated, then they would be unlikely to facilitate it, which would lead to a reduction in beneficial online activity and expression, which, as we can see from the first two subsections of Section 230 itself, was something Congress wanted to encourage.

To address these twin concerns, Congress passed Section 230 with two complementary objectives: encourage the most good content, and the least bad. Section 230 was purposefully designed to achieve both these ends by providing online platforms with what are ultimately two complementary forms of protection.

The first is the one that people are most familiar with, the one that keeps platforms from being held liable for how users use their systems and services. It’s at 47 U.S.C. Section 230(c)(1).

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

It’s important to remember that all this protection provision does is say that the platform cannot be held liable for what users do online; it in no way prohibits users themselves from being held liable. It just means that platforms won’t have to be afraid of its users’ online activity and thus feel pressured to overly restrict it.

Meanwhile, there’s also another lesser-known form of protection built into Section 230, at 47 U.S.C. Section 230(c)(2). What this protection does is also make it safe for platforms to moderate their services if they choose to. Because it means they can choose to.

No provider or user of an interactive computer service shall be held liable on account of (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

Some courts have even read subsection (c)(1) to also cover these moderation decisions too. But ultimately, the wisdom of Section 230 is that it recognizes that to get the best results – the most good content and also the least bad – it needs to ensure platforms can feel safe to do what they can to advance both of these things. If they had to fear liability for how they chose to be platforms, they would be much less effective partners in achieving either. For instance, if a platform had to fear legal consequences for removing user content, they simply wouldn’t. (We know this from FOSTA, which, by severely weakening Section 230 has created disincentives for platforms to try to police user content.) And if platforms had to fear liability for enabling user activity on its systems, they also wouldn’t do that either. They would instead end up engaging in undue censorship, or cease to exist at all. (We also know this is true from FOSTA, which, by weakening Section 230, has driven platforms to censor wide swaths of content, or even cease to provide platform services to lawful expression.)

But even if Section 230 protected platforms for only one of these potential forms of liability, not only would it not be nearly as effective at achieving Congress’s overall goal of getting both the most good and least bad online as protecting them in both ways would, but it wouldn’t be nearly as effective for achieving even just one of those outcomes as a more balanced approach would. The problem is that if ever platforms find themselves in the position of needing to act defensively, out of fear of liability, it tends to undermine their ability to deliver the best results on either of these fronts. The fear of legal liability forces platforms to divert their resources away from the things they could be doing to best ensure they facilitate the most good, and least bad, content and instead spend them on only what will protect them from whatever the threat of legal liability is causing them to spend outsized attention on.

As an example, see what happens under the DMCA, where Section 230 is inapplicable and liability protection for platforms is so conditional. Platforms are so fearful of copyright liability that this fear regularly causes them to overly delete lawful, and even often beneficial, content, despite such a result being inconsistent with Congress’s legislative intent, or waste resources weeding out the bad takedown demands. It’s at least fortunate that the DMCA expressly does not demand that platforms actively police their users’ content for infringement. Because if they had to spend their resources policing content in this way it would come at the expense of policing their content in a way that would be more valuable to the user community and public at large. Section 230 works because it ensures that platforms can be free to devote their resources to being the best platforms they can be to enable the most good and disable the most bad content, instead of having to spend them on activities that are focused only what protects them from liability.

To say, then, that a platform that monitors user content must then lose its Section 230 protection is simply wrong, because Congress specifically wanted platforms to do this. Furthermore, even if you think that platforms, even with all this protection, still don’t do a good enough job meeting Congress’s objectives, it would still be a mistake to strip them of them of what protection they have, since removing it will not help any platform, current or future, from ever doing any better.

What tends to confuse people is that curating user content appearing on a platform does not turn the content into something the platform should now be liable for. When people throw around the imaginary “publisher/platform” distinction as a basis for losing Section 230 protection they are getting at this idea that by exercising editorial discretion over the content appearing on their sites it somehow makes the content become something that the platforms should now be liable for.

But that’s not how the law works. Nor how could it work. And Congress knew that. At minimum, platforms simply facilitate way too much content for them to be held accountable for any of it. Even when they do moderate content, it is still often at a scale beyond which it could ever be fair or reasonable to hold them accountable for whatever still remains online.

Section 230 never required platform neutrality as a condition for a platform getting to benefit from its protection. Instead, the question of whether a platform can benefit from its protection against liability in user content has always been contingent on who created that content. So long as the “information content provider” (whoever created the content) is not the “interactive computer service provider” (the platform), then Section 230 applies. Curating, moderating, and even editing that user content to some degree doesn’t change this basic equation. Under Section 230 it is always appropriate to seek to hold responsible whomever created the objectionable content. But it is never ok to hold liable the platform they used to create it, which did not.

Explainer: How Letting Platforms Decide What Content To Facilitate Is What Makes Section 230 Work

More Law-Related Stories From Techdirt:

No, Your Kid Isn’t Growing Horns Because Of Cellphone Use
Can’t Have Copyright Enforcement Without Destroying Privacy Protections
Kim Kardashian Deep Fake Video Removed By Copyright Claim

“S**t, I like to think that at every opportunity I’ve ever been threatened with resistance, it’s been met with resistance.”— Tupac

Last week, the New York Times published Timothy Williams’s insightful article “Black People Are Charged at a Higher Rate Than Whites. What if Prosecutors Didn’t Know Their Race?” In his article, Williams writes:

The [San Francisco District Attorney’s Office] has begun experimenting with an approach it describes as “blind charging,” which prevents prosecutors in one of the nation’s busiest district attorney’s offices from seeing demographic information before making an initial decision on whether to charge someone.

Criminal justice experts said San Francisco appeared to be the first such office in the nation to test that approach…. ‘The question we want to ask ourselves is, would you charge based just on the behavior, without the race and other demographic information?’ said Mr. Gascón. ‘We wanted to see what might be causing a disparate application of the law….’

The experiment in ‘blind charging’ comes as prosecutors’ offices across the nation have been instituting policy changes to grapple with what has been found to be extensive racial bias in the criminal justice system, which has led to disproportionate levels of incarceration among African-Americans….

Legal analysts said the San Francisco policy appears to go a step further [than other cities’ policies] by directly confronting ingrained racial bias that leads some prosecutors, for example, to file charges against African-Americans for low-level drug offenses more frequently than against whites, even though studies show that white people use illicit drugs at higher rates.

During the recent political campaign season, some candidates claimed it was unfair to “to use a broad brush to accuse law enforcement of — of implicit bias or institutional racism.” The truth is that implicit or unconscious bias should not be deemed an insult. In fact, these biases are part of a reality that we all suffer from. In other words, justice is not blind. Unconscious racial bias can lead to racial inequality.

Implicit or unconscious bias is a mental shortcut “that fills in gaps in our knowledge with similar data from past experiences and cultural norms.” It is a normal part of how we make decisions. National Public Radio notes, “There are big racial differences in how school discipline is meted out: students of color are much more likely to be suspended or expelled than white students, even when the infractions are the same.”

A U.S. Department of Education of Civil Rights 2014 Report revealed that “black students are suspended and expelled at a rate three times greater than white students.” The disproportionately high suspension rates start suspiciously early. Although black children make up 18 percent of preschool enrollment, they account for almost half of the children who receive more than one out-of-school suspension. In addition, the Washington Post highlights, “black teens who commit a few crimes go to jail as often as white teens who commit dozens” (e.g., the absurd results from our “war on drugs”).

It is important to be conscious of our hidden biases, but as Richard Banks and Richard Thompson Ford of Stanford Law School point out, “The goal of racial justice efforts should be the alleviation of substantive inequalities, not the eradication of unconscious bias.”

Unconscious bias based on race pervades our law, education, and politics. In 2015, former FBI Director James Comey spoke specifically on this subject, as noted by the New York Times:

Previous FBI directors had limited their public comments about race to civil rights investigations, like murders committed by the Ku Klux Klan and the bureau’s wiretapping of the Rev. Dr. Martin Luther King Jr. But Mr. Comey tried to dissect the issue layer by layer. He started by acknowledging that law enforcement had a troubled legacy when it came to race.

‘All of us in law enforcement must be honest enough to acknowledge that much of our history is not pretty. At many points in American history, law enforcement enforced the status quo, a status quo that was often brutally unfair to disfavored groups.’

Mr. Comey said there was significant research showing that all people have unconscious racial biases. Law enforcement officers, he said, need ‘to design systems and processes to overcome that very human part of us all…. Although the research may be unsettling, what we do next is what matters most.’

For some, it is race-consciousness that is perceived as racism. For others, racism is reality and history. I sometime wonder if Chief Justice John G. Roberts ever regrets writing, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Ironically, it was Justice Clarence Thomas who added the sentiment in the respective concurring opinion: “If our history has taught us anything, it has taught us to beware of elites bearing racial theories.”

Roberts’s prior statements or race seems to ignore the legacies we have all inherited, the reality we each individually face. Eric Liu, the former presidential speechwriter, may have stated it best when he wrote, “The experience of African-Americans is exceptional in its systematic, multigenerational, reverberating effects. And it’s exceptional in its centrality to the founding and building of our nation. No experience reveals more than the African-American experience both the hypocrisy and the possibility of our national creed.” I often wonder why citizens against policies that seek to make up for previous discrimination become so enraged upon the broaching of such subjects.

According to the Sentencing Project, “If current trends continue, one of every three black American males born today can expect to go to prison in his lifetime, as can one of every six Latino males — compared to one of every seventeen white males.”

Cornell Law School notes, “Race matters in the criminal justice system. Black defendants appear to fare worse than similarly situated white defendants. Why? Implicit bias is one possibility… Judges hold implicit racial biases. These biases can influence their judgment.”

Judges are not colorblind. Teachers are not colorblind. Our society is not colorblind. To believe you are colorblind is to be naive; to believe the justice system is colorblind is to be clueless. We should all be conscious of our hidden biases. We should be mindful of the legacies we have all inherited. It is important to understand how the media influences us. We are wired for prejudice, but this does not have to remain fatal for those most at risk in our society.

It is evident that unconscious racial bias pervades our law, education, and politics. It remains inexcusable for us to permit negative hidden biases to continually operate in our blind spots. These biases must be brought to light. We must be cognizant and cautious of our automatic behaviors and established beliefs. Our implicit biases continue to tear at the fabric of our society. The question is, what are we as a profession going to do about it?

Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at projectrenwei@gmail.com, follow him on Twitter (@renweichung), or connect with him on LinkedIn.