THE CASE OF THE BENGAL CHEERLEADER AT THE CYBER ZOO*
Sarah Jones, a former high school teacher and Cincinnati Bengal cheerleader, sued TheDirty.com over two posts. In the first, site users (aka “The Dirty Army”) posted that Jones was seen with the Bengals kicker and “has . . . slept with every other Bengal Football player. This girl is a teacher too!!.” In the second, the Dirty Army stated that Jones’ likely had sexually transmitted diseases and had sex with her boyfriend in her class room After the second post, site owner Nik Richie commented “[w]hy are all high school teachers freaks in the sak?”
ACT I: THE CDA
Jones sued TheDirty.com in Kentucky federal court, which in turn invoked the immunity under Section 230 of the Communications Decency Act which “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.” Zeran v . American Online, Inc., 129 F. 3d 327, 330 (4th Cir . 1997), cert. denied, 24 U. S. 937 (1998). The immunity does not apply if the website is “responsible, in whole or in part, for the creation or development of” the offending content. Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157,1162 (9th Cir.2008).
The Court denied The Dirty’s motion, finding the site to be “not only offensive but tortious” and concluding that
by reason of the very name of the site, the manner in which it is managed, and the personal comments of defendant Richie, the defendants have specifically encouraged development of what is offensive about the content of the site.
ACT II: THE TRIAL and APPEAL
Jones’ complaint sought $11 million in damages since the posts ruined her reputation, especially with her students who commented on the post. But before the case went to trial, the English teacher plead guilty to criminal charges involving having sex with one of her minor students (who is reportedly now her fiancé) and is now barred from ever teaching again, forcing her lawyers to exclude future damages from their claim. Jones even testified about the events at trial. After a hung jury in the first trial, Jones prevailed in the second winning $338,000 in punitive and compensatory damages.
The Dirty’s appeal was supported by a who’s who of the Internet with amicus briefs filed by:
- public interest groups such as the ACLU, the Electronic Frontier Foundation, the Berkman Center’s Digital Media Law Project, the Center for Democracy and Technology and the Public Participation Project (brief);
- online service providers including Amazon.com, Inc., Avvo, Inc., Buzzfeed, Inc., CNN, Curbed.com LLC, Gawker Media, Magazine Publishers of America, The McClatchy Company, The Reporters Committee for Freedom of the Press, TripAdvisor LLC, Yahoo! Inc, and Yelp (brief) ; and
- interactive computer services such as: AOL, Inc., eBay, Facebook, Google, LinkedIn,Microsoft, Tumblr, Twitter and Zynga (brief).
After oral argument, The Dirty’s counsel David Gingras blasted the trial judge:
Sarah Jones filed her lawsuit against Nik Richie and TheDirty back in December 2009. Since then, we have spent 4 ½ years fighting against a closed-minded judge who decided our fate before we even set foot in court. I cannot emphasize enough how frustrating and unfair that process has been….both for Nik Richie and for Sarah Jones. Both sides deserved much more respect from the court.
ACT III: THE SIXTH CIRCUIT’S OPINION
In a result that surprised no one, the Sixth Circuit reversed the award for Jones. Judge Julia Gibbons began by stressing the importance of Section 230 immunity
By barring publisher-liability and notice-liability defamation claims lodged against interactive computer service providers, § 230 serves three main purposes. First, it “maintain[s] the robust nature of Internet communication and, accordingly, . . . keep[s] government interference in the medium to a minimum.” Id. at 330; see also 47 U.S.C. § 230(b)(2) (“It is the policy of the United States . . . to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”).
Second, the immunity provided by § 230 protects against the “heckler’s veto” that would chill free speech. Without § 230, persons who perceive themselves as the objects of unwelcome speech on the internet could threaten litigation against interactive computer service providers, who would then face a choice: remove the content or face litigation costs and potential liability. See Zeran, 129 F.3d at 331 (“The specter of tort liability in an area of such prolific speech would have an obvious chilling effect.”). Immunity shields service providers from this choice. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009) (“[I]mmunity is an immunity from suit rather than a mere defense to liability and . . . is effectively lost if a case is erroneously permitted to go to trial.” (internal quotation marks omitted)).
Third, § 230 encourages interactive computer service providers to self-regulate.
The Court explained that the trial court applied the wrong standard for when a website is a developer of wrongful content, as the encouragement standard and/or ratification standard (based on the website’s additional commentary) used by the court could become the exception that swallowed the rule. Instead, the court applied a “material contribution” test to determine whether the website materially contributed to illegality of the statements made on the site.
The fact that The Dirty published and refused to take down the post was insufficient since CDA immunity covers “a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content.” The court could not find liability based on the site’s comments since they were made after the defamatory postings were displayed.
The Court also chided the trial judge for not permitting an immediate appeal:
Given the role that the CDA plays in an open and robust internet by preventing the speech-chilling threat of the heckler’s veto, we point out that determinations of immunity under the CDA should be resolved at an earlier stage of litigation. See Nemet, 591 F.3d at 254 (“[I]mmunity is an immunity from suit rather than a mere defense to liability [and] is effectively lost if a case is erroneously permitted to go to trial.”).
The Court concluded eloquently:
We note that the broad immunity furnished by the CDA does not necessarily leave persons who are the objects of anonymously posted, online, defamatory content without a remedy. In this case, Jones conceded that she did not attempt to recover from the person(s) whose comments Richie elected to publish. She conceded that she did not attempt to subpoena Richie or Dirty World to discover who authored the defamatory posts. Instead, she sued Dirty World and Richie. But, under the CDA, Jones cannot seek her recovery from the online publisher where that publisher did not materially contribute to the tortious content. Congress envisioned a free and open internet, see § 230(a)(1)−(5), and the immunity provision of § 230(c)(1), which subverts common-law publisher-liability, serves that purpose. While some exercises of the considerable freedom that Congress allowed online publishers are regrettable, freedom and its uses are distinct. Congress enacted § 230(c)(1) to preserve a free internet, and
that enactment resolves this case.
While the Sixth Circuit made the right decision and the press and blogosphere are trumpeting the preservation of the CDA’s blanket immunity, in practice the protection afforded by this immunity is not always absolute. An empirical analysis of the exercise of Section 230 as a defense published in Loyola of Los Angeles Law Review in 2010 found that Section 230 was not always an absolute bar to claims. As the chart below demonstrates, there is great variance depending on the nature of the claim and jurisdiction in which it is asserted.
In addition, despite the ruling’s emphasis that these claims be resolved earlier in the litigation, CDA immunity claims were addressed at the motion to dismiss stage in only half of the cases reviewed (and only 61 percent of these defenses were successful). Another 26 percent of cases were raised at Summary Judgment where immunity was found in two-thirds of the cases.
Source: David S. Ardia, Free Speech Savior or Shield for Scoundrels: An Empirical Study of Intermediary Immunity under Section 230 of the Communications Decency Act, 43 Loy. L.A. L. Rev. 373 (2010).
*Title is a play on the title of a Rajiv Joseph play, “Bengal Tiger at the Baghdad Zoo.” (Great play btw).