Justin Levine is giddy over the recent decision in Barrett v. Rosenthal, a recent California Supreme Court decision that held unanimously that … um … the Communications Decency Act is a federal statute. Levine hails the decision as a huge victory for free speech. Michelle Malkin disagrees, noting the absurdity of a rule that allows her to blog with impunity what would get her sued in her syndicated column, and asking generally why online speech should be held to a different standard than other speech.

Justin’s answer, in a nutshell, is that if Michelle defamed me in a syndicated column, I would not have a syndicated column of my own with which to respond. On the flip side, if she defamed me on her blog, read by a gajillion readers across the globe, I could respond on this here blog and expect a couple hundred – or, with luck and an Instalanche, a few thousand – readers to read my response. I find that argument less than persuasive. A more persuasive answer to Michelle’s question, I believe, is “because a federal law says that online speech is to be held to a different standard than other speech.” That’s not a substantive argument for the CDA, of course, and if Michelle wants to lead the charge to get that turkey of a law repealed – all of it, that is, not just the immunity provisions at issue here – then I’d be delighted to join the crusade. But as long as CDA remains on the books, the law is the law, and for better or for worse, online speech is a federal matter subject to one set of rules, and ordinary speech is for our traditional federalist (or, for Romney supporters, “disingenuous”) system to sort out.

Contrary to the buzz, this case was not huge, nor even terribly significant. The Ninth Circuit, in which California sits, has already ruled the same way, as has every other federal court to weigh in on the issue. For the court to have ruled any other way would have been an unconscionable example of judicial activism – essentially a judicial nullification of CDA. It also would have produced an absurd result for litigants in California, who could win or lose a case entirely on the basis of which courthouse they filed their case in – even if one courthouse was across the street from the other.

The answer, of course, is “because federal law says that it is.” That’s not a substantive argument for the Communications Decency Act, of course, and if Malkin’s point is that Congress ought to repeal it, I agree wholeheartedly. But as long as we’re going to have a law on the books that says online speech is special, to be treated better than ordinary speech in some respects and worse in others, then at some point we gotta admit that the law is the law, and for the California Supreme Court to have ruled any other way would have been an unconscionable act of judicial activism.

McQ has more.