Section 230 of the CDA and TheDirty.com

Over at the ACLU's blog, Lee Rowland posts about Jones v. Dirty-World Entertainment Recordings, LLC, a case that is on appeal before the Sixth Circuit.  Here is the link to the ACLU's amicus brief in that case.

The case involves section 230 of the Communications Decency Act.  This is a law I am interested in, having written about it before here.  Section 230 typically immunizes websites from material that third parties post on the website.  For instance, if I write something defamatory about somebody in this blog, that person can sue me, but Blogspot will be protected from suit by the CDA.  This law is generally praised by proponents of internet speech because it makes websites less likely to remove posted material for fear of incurring legal liability.  Critics argue that the law should be changed because section 230 immunity promotes anonymous, online harassment that websites don't need to police.  But proponents of the law reply that the law owes its existence to Congress's concern that websites should be able to police themselves without incurring liability, and that this policing can promote discussion while eliminating harassing remarks.

As for the facts of Jones, the ACLU states:

TheDirty.com is probably best known for its role in breaking the latest Anthony Weiner scandal. In 2009, the site posted an anonymously submitted story stating that Sarah Jones, a high school teacher and Cincinnati Bengals cheerleader, slept with the entire Bengals team. A second post alleged Jones had sex with her husband in her classroom and had STDs. TheDirty.com’s publisher, Nik Richie, then added his own fateful commentary at the bottom of this post: “Why are all high school teachers freaks in the sack? – nik.”

While websites are generally immune from user-posted content under section 230, the Eastern District of Kentucky held that the website here could be found liable for the various comments.  A jury then found in favor of the plaintiff and returned a verdict in her favor of $338,000.

Rowland takes issue with the court's initial finding that the plaintiff could sue the website in the first place:

The defendants claimed that Section 230 provided immunity because those posts were authored by a third party, but the judge (incorrectly) disagreed. He held, basically, that Richie was asking for it, due to the name of the site, Richie’s general “encouragement” of gossip, and his “adoption” of the anonymous defamation by wondering aloud why teachers are freaky. (It’s important to note that asking why all teachers are freaky is absolutely not itself defamatory, and no one in this case claimed otherwise.) 

. . .

The judge was flat wrong on the law. But this decision is even worse public policy. That’s because the essence of the trial court’s judgment was that by seeking critical, disparaging speech (gossip), Richie and TheDirty.com were actively seeking unlawful speech (defamation), and didn’t deserve immunity. But dirt simply doesn’t equal defamation. And equating the two would be disastrous for other sites that offer a wide array of extremely valuable speech. 

For example, consumer watchdog sites encourage users to submit reports of corporate malfeasance — speech that is inherently critical, disparaging, even damaging for the companies complained about. But Fraud.org is clearly a great public service, not a hub for criminal activity. Similarly, environmental activists at sites like Frack Check WV invite users to submit horror stories about fracking in their communities; the Bed Bug Registry asks users to report bed bug infestations.

I think that Rowland raises an interesting point about the danger of hinging the test for section 230 immunity on whether the website simply encourages unlawful or defamatory content.  Not only would such an approach be inconsistent with most of the cases on this subject, that approach would end up chilling a great deal of important speech.

But I think that the Rowland downplays the important fact that Nik Richie, the owner of the website, added his own commentary in the wake of the other defamatory comments.  And while Richie's comment, taken alone, may not be defamatory, in context, the comment seems to add to the message of the messages it responds to, and indicate that Richie is endorsing and promoting those other messages.

I don't think that this case calls for the clear denial of section 230 immunity -- the question of whether Richie's post was enough to adopt the message of the other posts could be argued in either direction.  At the same time, however, I don't think that Rowland is giving Richie's post the weight it deserves.

UPDATE: 6/17/2014

In the original version of this post, I incorrectly attributed the first block quote in this post to the Electronic Frontier Foundation (EFF).