Sixth Circuit Reinforces Intent of Section 230, Reverses Ben-Gal Cheerleader Case

Written by Eleni Kyriakides

Last week, the Sixth Circuit shored up free expression online with a welcome reversal of a district court’s flawed interpretation of Section 230 of the Communications Act. Section 230 is a crucial protection that grants legal immunity to websites that host other people’s speech. As CDT argued in an amicus brief with the ALCU and other free expression advocates, the district court opinion created uncertainty for website operators and social media platforms that depend on Section 230’s protections to offer space for user-generated content without the risk of being taken to court. Today’s decision assures that the legislative intent behind Section 230 – to maintain an innovative, open Internet – will endure in the Sixth Circuit.

Section 230: A Cornerstone of Internet Freedom and Innovation

Section 230 is a foundational legal provision that sustains a democratized, innovative Internet. This statute gives broad immunity to website operators and other intermediaries for third-party content that they host or transmit.  User-generated content sites have become a core feature of the Internet thanks to Section 230’s protections. Without this shield from liability countless websites could face burdensome lawsuits for providing opportunities for individuals to upload their own ideas and opinions. Without Section 230, website operators could easily find themselves drawn into lawsuits over controversial or critical content provided by others. Subjecting providers to such liability might sound the death knell for websites with user participation, discourage hosting of users’ speech and chilling the unfettered exchange of ideas and commerce on the Internet. This is exactly what Congress sought to prevent with the passage of Section 230.

The district court opinion in Jones v. Dirty World Entertainment threatened the powerful free expression protection offered by Section 230 by misinterpreting what it takes to be an “information content provider” who can be held liable; under Section 230(f)(3), a third-party content host is still responsible for content that it creates or develops.  The case involved Sarah Jones, a teacher and former Cincinnati Ben-Gal cheerleader who sued when a gossip website, www.TheDirty.com, displayed several user statements about her which she argued hurt her reputation. Nik Richie, the site operator, provided his own commentary on some user posts.  The district court held that these comments meant Dirty World and Richie “developed” the content at issue and could be held liable for the defamatory nature of the user comments.

Third-Party Content Hosting Threatened by Erroneous District Court Opinion

Richie did not author the defamatory comments challenged by Ms. Jones. This fact should have been enough to bring Dirty World Entertainment and Richie squarely under the protection of Section 230. However, the district court misapplied existing precedent and held that Jones’s claims against Richie were not barred by the statute. As highlighted by the Sixth Circuit in its reversal, the district court made numerous errors in its decision to hold the Defendants liable.

The Sixth Circuit deemed the district court to have “over-read” the precedents in determining when a site operator is a developer of hosted content. The district court asserted that Section 230 immunity does not apply when a website “encourages” the posting of problematic content. The Sixth Circuit said this “encouragement test” eliminated the crucial distinction between managing content on the one hand, and being responsible for generating the problematic aspect of the content on the other. By connecting “encouragement” to “development”, the district court broadened the latter term to include websites that “actively invite and encourage users to post particular types of content” and where “content is commented upon by website operators.” This describes a radically expanded universe of websites that might be held liable for user content.. Moreover, the indefinite “muddiness of an encouragement rule would cloud” a vision of an “uninhibited, robust” Internet.  Fortunately, the Sixth Circuit declined to adopt this test.

The district court had also suggested an “adoption or ratification theory” to measure the degree of development of content by a website. Under this theory, if a website “adds commentary to third-party content that ‘ratifies or adopts’ that content,” then the website would be liable as a developer. As we noted in our brief, this raises the prospect that websites could be held liable for deciding to publish, withdraw, or alter content – precisely the outcome Section 230 (and its protections for voluntary filtering of objectionable content) was designed to avoid.  The Sixth Circuit concluded that the district court’s ratification theory faced similar problems to the encouragement test, and would also wrongly make website operators responsible for the actionable elements in another party’s statement solely by commenting on that statement after it has been released.

Sixth Circuit Adopts Settled Speech-Protective Precedents

After highlighting the errors of the district court opinion, the Sixth Circuit adopted and applied the “material contribution test” in determining whether an operator is responsible for developing content. This test, originating in Fair Housing Council v. Roommates.com in the Ninth Circuit, finds a website operator liable for content it hosts “if it contributes materially to the alleged illegality of the conduct.” The Sixth Circuit elaborated that the website operator must be “responsible for what makes the displayed content allegedly unlawful.”

This is the right decision.  As the court noted, Richie and Dirty World did not materially contribute to what made the online comments at issue defamatory. They could not be held liable for the statements for merely “select[ing] the statements for publication,” deciding not to remove the posts, and otherwise engaging in basic editorial functions. Moreover, the website “did not require users to post illegal or actionable content”(emphasis added), and the fact that the website was called www.TheDirty.com did not “suggest that only illegal or actionable content will be published.” Finally, Richie’s responsive posts to the statements at issue do not alter his responsibility for that content; Richie’s comments were subsequent commentary on the statements and “did not materially contribute to the defamatory content of the posts appearing on the website.” Richie’s comments themselves were not actionable, and the fact that they were generally approving of the content at issue is an insufficient hook for liability.

The Sixth Circuit concluded that Section 230 grants Richie and Dirty World immunity from liability for their users’ comments about Jones. The adoption of the “material contribution” test and reversal of the district court was exactly the right step by this court. This decision maintains the strength of Section 230’s protections as a legal foundation for keeping the Internet an open platform for free expression.

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