We have been discussing the case of Sarah Jones, former Cincinnati Bengals cheerleader who sued a gossip site, TheDirty.com, after comments appeared from third parties that said that she had sex with half of the football team’s players and had contracted sexually transmitted diseases. (Strangely, the site did not argue that the statement was facially implausible and thus not defamatory since it did not appear in 2010 that anyone could catch anything from the Bengals). Jones, a high school teacher, won a rare $338,000 libel verdict against the site for third party postings. However, the United States for the Third Circuit has reversed the verdict and found that the site is protected under under the Communications Decency Act (CDA) of 1996.

The case is an important win for Internet sites that allow third party comments and postings. However, it must be a terrible disappointment for Jones who would be clearly defamed by these posters.

At the heart of the lawsuit is http://www.TheDirty.com site, a pretty scummy website operated by Nik Lamas-Richie and DIRTY WORLD, LLC. It truly has no redeeming qualities and appears to the lowest common denominator of our society. It is a site that allows people to trash non-public figures and notably Richie selects and publishes material that he likes with his own comments. This makes it a more difficult case, including the fact that Richie actively seeks “dirt” from his “Dirty Army” — asking them to “Tell us what’s happening. Remember to tell us who, what, when, where, why.”

In 2009 and 2010, this juvenile site directed its attention on Jones who was a teacher at Dixie Heights High School in Edgewood, Kentucky, and a member of the Cincinnati BenGals, the cheerleading squad. On October 27, 2009, a third party submitted two photographs of Jones with a male companion. It read:

THE DIRTY ARMY: Nik, this is Sara J, Cincinnati Bengal Cheerleader. She’s been spotted around town lately with the infamous Shayne Graham. She has also 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!

Richie then added beneath the post: “Everyone in Cincinnati knows this kicker is a Sex Addict. It is no secret… he can’t even keep relationships because his Red Rocket has freckles that need to be touched constantly. – nik”

Jones asked for the post to be remove but Richie refused. Then on December 7, 2009, the poster submitted a photograph of Jones with the following:

THE DIRTY ARMY: 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. . whats worse is he brags about doing sarah in the gym. . football field. . her class room at the school she teaches at DIXIE Heights.

Again, Richie added remarks: “Why are all high school teachers freaks in the sack?- nik”

Finally, on December 9, 2009, a visitor submitted another photograph of Jones and a male companion and the following comment:

THE DIRTY ARMY: Nik, ok you all seen the past posting of the dirty Bengals cheerleader/teacher. . . well here is her main man Nate. Posted a few pics of the infected couple. Oh an for everyone saying sarah is so gorgeous check her out in these non photoshopped pics.

Then Richie added his juvenile commentary with “Cool tribal tat man. For a second yesterday I was jealous of those high school kids for having a cheerleader teacher, but not anymore. – nik”

Jones asked 27 times in emails for the postings to be removed and even her father wrote to Richie. They threatened legal action to no success. For teachers, this is a not just humiliating personally but teachers have been disciplined or fired over objections to their private lifestyle, a trend that I can criticized in prior columns. 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).

While I generally support the protection of free speech on the Internet, this is a troubling case given Richie’s active solicitation and his selection of “dirt” to trash average people. The district court had refused the immunity issue as well as efforts to an interlocutory appeal. The jury returned a verdict in favor of Jones for $38,000 in compensatory damages and $300,000 in punitive damages. However, the Third Circuit found that the CDA protected the Richie and his site.

Section 230(c)(1) of the CDA provides that “[n]o 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.” Notably, § 230(c)(1) does not explicitly mention immunity. However, courts have read such protection into the act. 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.

* * *

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.”

The Sixth Circuit added in this case that:

an interactive computer service provider is not also the information content provider of the content at issue. An “information content provider” is defined 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(f)(3). A website operator can simultaneously act as both a service provider and a content provider. If a website displays content that is created entirely by third parties, then it is only a service provider with respect to that content—and thus is immune from claims predicated on that content. But if a website operator is in part responsible for the creation or development of content, then it is an information content provider as to that content—and is not immune from claims predicated on it. Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003) (“Under the statutory scheme, an ‘interactive computer service’ qualifies for immunity so long as it does not also function as an ‘information content provider’ for the portion of the statement or publication at issue.”). Thus, a website may be immune from liability for some of the third-party content it publishes but be subject to liability for the content that it is responsible for as a creator or developer. See Roommates, 521 F.3d at 1162−63, 1165; see also Batzel, 333 F. 3d at 1033. In short, immunity under the CDA depends on the pedigree of the content at issue.

What follows in the opinion is an excellent discussion of the notions of contributions and different tests among the circuits. The court then rules that this case does not qualify as an exception:

of the website, http://www.TheDirty.com, suggest that only illegal or actionable content will be published. Unlike in Accusearch, Richie or Dirty World did not compensate users for the submission of unlawful content. Cf. Accusearch, 570 F.3d at 1200−01. The website’s content submission form simply instructs users to “[t]ell us what’s happening. Remember to tell us who, what, when, where, why.” The form additionally provides labels by which to categorize the submission. These tools, neutral (both in orientation and design) as to what third parties submit, do not constitute a material contribution to any defamatory speech that is uploaded. See Nemet, 591 F.3d at 256 (finding that the “structure and design of [defendant’s] website” and the website’s “solicit[ion of] its customers’ complaints [and] steer[ing] them into specific categor[ies]” did not constitute development under § 230(f)(3)” (fifth alteration in original) (internal quotation marks omitted)); Roommates, 521 F.3d at 1173−74 (holding that § 230 barred the fair housing councils’ claims grounded on the discriminatory statements displayed through Roommate’s operation of the “additional comments” section of its website).

Further, Richie’s comment on the December 7 post—viz., “Why are all high school teachers freaks in the sack?”—although absurd, did not materially contribute to the defamatory content of the statements uploaded on October 27 and December 7, 2009. Richie’s remark was made after each of the defamatory postings had already been displayed. It would break the concepts of responsibility and material contribution to hold Richie responsible for the defamatory content of speech because he later commented on that speech. Although ludicrous, Richie’s remarks did not materially contribute to the defamatory content of the posts appearing on the website. More importantly, the CDA bars claims lodged against website operators for their editorial functions, such as the posting of comments concerning third-party posts, so long as those comments are not themselves actionable. See Zeran, 129 F.3d at 330; see also 47 U.S.C. § 230(f)(3).

To be sure, Richie was an information content provider as to his comment on the December 7 post. But Jones did not allege that Richie’s comments were defamatory. And the district court did not hold that Richie’s comments were themselves tortious. Rather, the court No. 13-5946 Jones v. Dirty World Entm’t Recordings, et al. Page 24 concluded that those comments “effectively ratified and adopted the defamatory third-party post” and thereby developed the defamatory statements, thus ruling that the CDA did not bar Jones’s claims. Jones IV, 965 F. Supp. 2d at 823 (“Defendants are mistaken, for the salient point about Richie’s tagline is not that it was defamatory itself and thus outside CDA immunity, but rather that it effectively ratified and adopted the defamatory third-party post.”). The district court’s adoption or ratification test, however, is inconsistent with the material contribution standard of “development” and, if established, would undermine the CDA. Therefore, Dirty World and Richie did not develop the statements forming the basis of Jones’s tort claims and accordingly are not information content providers as to them.

Now Richie’s counsel says that he is considering adding insult to injury by actually suing Jones to force her to pay his costs in the lawsuit. I would not be too concerned about such a lawsuit since this was a reserved question in the circuit and the outcome was far from clear. However, it does complete the image of Richie in making such a threat.

While many would disagree with its conclusions, it is a well-written and well-researched decision that is worth a read.

Here is the opinion.