There is an important case pending before the United States Court of Appeals for the Sixth Circuit on liability over Internet speech for blogs and websites. The court heard arguments in Jones v. Dirty World Entertainment, where gossip blog, The Dirty, is appealing the decision of U.S. District Judge William Bertelsman that the site is liable of defamatory statements by third parties and cannot claim immunity under the Communications Decency Act, 47 U.S.C. § 230. The site was sued by Sarah Jones, an ex-Bengals cheerleader and a former high school teacher in northern Kentucky, who was libeled on the site by commentators.

Defendant Dirty World, LLC operates “the dirty.com” which invites comments by third parties to dish on others. Defendant Hooman Karamian, a/k/a Nik Richie (“Richie”) would then respond to such gossip in the discussion section. Jones, who was teaching at Dixie Heights High School at the time, was shocked to find a posting from October 27, 2009, by a visitor to “the dirty.com”:

Nik, this is Sara J, Cincinnati Bengal[sic] Cheerleader. She’s been spotted around town lately with the infamous Shayne Graham. She also has slept with every other Bengal Football player. This girl is a teacher too! You would think with Graham’s paycheck he could attract something a little easier on the eyes Nik!

Notably, we have previously discussed the worrisome trend of teachers and other public employees being disciplined or fired over conduct or statements in their private lives. We have previously seen teachers (here, here, here, here, here, here, here, here, and here), students (here, here and here) and other public employees ( here, here, here, here, here, here and here) fired for their private speech or conduct, including school employees fired for posing in magazines (here), appearing on television shows in bikinis (here), or having a prior career in the adult entertainment industry (here).

So, Jones had reason to fear that these comments would cause her harm — though I continue to oppose this trend of discipline for teacher as discussed in this column. (Notably, the defendants conceded the defamatory content of the postings and later did not challenge the amount of the award).

Jones contacted the site to ask that the comment be taken down but the site refused. Then on December 7, 2009, another post was made to “the dirty.com:”

Nik, here we have Sarah J, captain cheerleader of the playoff bound cinci bengals.. Most ppl see Sarah has [sic] a gorgeous cheerleader AND highschool teacher. . yes she’s also a teacher . . but what most of you don’t know is . . Her ex Nate . . cheated on her with over 50 girls in 4 yrs. . in that time he tested positive for Chlamydia Infection and Gonorrhea . . so im sure Sarah also has both . . what’ss worse is he brags about doing sarah in the gym . . football field . . her class room at the school where she teaches at DIXIE Heights.
(SAC ¶¶9-13). In response, Richie posted: “Why are all high school teachers freaks in the sack? – nik.” (SAC ¶ 14).

Jones repeated her demand for the comments to be taken down and again the site refused. Instead, Richie posted: “Why are all high school teachers freaks in the sack? – nik.” Again, she asked for the comments to be taken down and again they refused.

The jury hung in the first trial of this case, which necessitated a second trial. The evidence in both trials regarding the claimed immunity was essentially the same as that described in the Court’s earlier opinion. The case was submitted to the jury, which returned a verdict for $38,000.00 compensatory damages and $300,000.00 punitive damages.

The key to the decision is the CDA. Section 230(c) of the Communications Decency Act of 1996 provides: “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.” The statute defines “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service.” 47 U.S.C. § 230(e)(3).

Bertelsman rejected the argument that it barred recovery in the case. The district court drew a distinction between third party postings or comments that appear without solicitation or encouragement and this type of site that actively seeks such comments. The court noted a number of decisions limiting CDA immunity including a decision by Judge Easterbrook of the United States Court of Appeals for the Seventh Circuit, who wrote in Chicago Lawyers’ Comm. For Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 670 (7th Cir. 2008), that the CDA does not provide “a grant of comprehensive immunity from civil liability for content provided by a third party.” Easterbrook ruled that Craigslist was entitled to protection but noted that “[n]othing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination.” Id. at 671-72.

The distinction would have huge implications for gossip sites or trash talking sites. The district court held that

“Although Courts have stated generally that CDA immunity is broad, the weight of the authority teaches that such immunity may be lost. That is, a website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts becomes a “creator” or “developer” of that content and is not entitled to immunity.”

However, it is not clear where the line will be drawn. The district court stressed:

The cases cited by defendants are entirely distinguishable because none involve facts where a website contributed to the development of actionable content by adding its own comments implicitly adopting an offensive posting and encouraging similar posts.

The question is what happens to sites that generate such comments but the host or staff do not repeat or specifically comments on the postings. We have previously discussed the opinion in Zeran v. America Online, Inc., 129 F.3d 327, 330-31 (4th Cir. 1997) where Chief Judge Wilkinson wrote for the Fourth Circuit:

By its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone or alter content — are barred.

The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.

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None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. While Congress acted to keep government regulation of the Internet to a minimum, it also found it to be the policy of the United States “to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.” Id. § 230(b)(5). Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.

Past CDA decision have been sweeping in the extent of the immunity, even from reluctant judges as in Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998). In that case, the Drudge Report was sued by Sidney Blumenthal and Jacqueline Jordan Blumenthal who are citizens of the District of Columbia and have continuously lived in the District since 1985. Complaint PP 1-2, 12. Sidney Blumenthal worked in the White House as an Assistant to the President of the United States and the defamatory materials was published the day before he began work at the White House on August 11, 1997. The article was entitled “Charge: New White House Recruit Sidney Blumenthal Has Spousal Abuse Past.” It was untrue and, after receiving a letter from their counsel, Drudge retracted the story through a special edition of the Drudge Report on his web site and e-mailed to his subscribers. Drudge also e-mailed the retraction to AOL which posted it on the AOL service. He also later publicly apologized to the Blumenthals. AOL however was protected even though the site actively monitors postings and reserves the right to remove postings. Judge Freidman wrote:

If it were writing on a clean slate, this Court would agree with plaintiffs. AOL has certain editorial rights with respect to the content provided by Drudge and disseminated by AOL, including the right to require changes in content and to remove it; and it has affirmatively promoted Drudge as a new source of unverified instant gossip on AOL. Yet it takes no responsibility for any damage he may cause. AOL is not a passive conduit like the telephone company, a common carrier with no control and therefore no responsibility for what is said over the telephone wires. 11 Because it has the right to exercise editorial control over those with whom it contracts and whose words it disseminates, it would seem only fair to hold AOL to the liability standards applied to a publisher or, at least, like a book store owner or library, to the liability standards applied to a distributor. 12 But Congress has made a different policy choice by providing immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others. In some sort of tacit quid pro quo arrangement with the service provider community, Congress has conferred immunity from tort liability as an incentive to Internet service providers to self-police the Internet for obscenity and other offensive material, even where the self-policing is unsuccessful or not even attempted.

Richie’s lawyers are arguing that liability in this case would chill speech on the Internet. Indeed, David Gingras is quoted as saying “If Judge Bertelsman’s ruling stands, the Internet will have a nuclear meltdown.”

This is going to be an important decision for both communications and tort law that we will continue to follow.

Here is the original district court decision: