Back in June, Lawmeme reported on the Ninth Circuit's decision in Batzel v. Smith, which dealt with the immunity provision in 47 U.S.C. 230(c)(1). In Batzel, the Ninth Circuit held that, inter alia, service providers or users are immune from liability under 230(c)(1) even when they edit a third party's submission and then publish it on the Internet.
Today the Ninth Circuit denied a petition for rehearing en banc, a decision that led to a dissenting opinion being issued by Judge Gould, joined by Judges Tallman and Callahan. That dissenting opinion has gotten some publicity due to a fairly extensive discussion of blogs:
[I[magine a defamatory e-mail sent to both an on-line bulletin board for appellate litigation and to a popular appellate litigation blog. Let us say, for example, that the e-mail falsely stated that Judge X of the Y Circuit was paid by Z to render decisions in Z's favor. If the blogger decides to publish the e-mail, there is something qualitatively different about the e-mail as published on the appellate blog, as contrasted with the one posted on the bulletin board. The blogger's conscious decision to publish an e-mail would add, by virtue of his or her reputation and that of the blog, a layer of credibility and endorsement that would be lacking from the e-mail merely posted to the bulletin board. And being the first person to post the defamatory material on the Internet would be a novel presentation of the defamatory material.
The dissenters would remove immunity from people who modify and then provide a "novel presentation" to information provided by third parties.