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Free Expression

Sixth Circuit Needs to Reverse Ben-Gal Ruling that Contradicts Section 230

Zach Lerner, 2013 Summer Intern, contributed substantially to this post.

As part of our continual effort to ensure that the Internet remains a dynamic and innovative platform for free expression, CDT joined the ACLU and other allies this week on an amicus brief in an important case on the legal liability that content platforms face for users’ speech. In a series of opinions riddled with errors, a district court judge refused to dismiss a defamation case against and its operator over content posted by the site’s users, putting him on the hook for a $338,000 civil penalty. The ruling, currently on appeal, misinterprets existing case law and directly contradicts Section 230 of the Communications Act. If not reversed, as we argue in our brief, countless websites that facilitate commerce and speech – including controversial yet important (and lawful) critical speech – will be threatened by substantial new legal risk.

The case, Jones v. Dirty World Entertainment, should have been dismissed long ago, but the judge repeatedly misread key Section 230 precedent, and the Appeals Court erroneously declined to hear the appeal until now. Our brief is one of a series urging the Sixth Circuit panel to reverse the lower court’s flawed reasoning.

Protecting Platforms from Lawsuits is Central to Free Expression Online

Section 230 prevents online service providers from being held liable for third-party content – that is, from being sued for content created by their users. For platforms, Section 230 eliminates much of the risk of being dragged into court over users’ wrongdoing. It’s therefore essential to the existence of websites such as Facebook, Yelp, Twitter, Reddit, YouTube, and countless others that offer user-generated content, commentary, and review. Without Section 230, these and other platforms would likely be unwilling to host users’ speech, and the Internet would not be the useful and generative medium for free expression, democratic participation, and economic growth that we enjoy today.

Of course, if the platform actually authored the content, it’s a different matter. The central issue in any Section 230 case is whether the platform contributed to the development of the offending content – that is, whether the content was provided by a third party or by the site operator. If you wrote it, you’re liable; if someone else did and you’re just the host, you’re not.

But in the Jones case, the plaintiff, a former Cincinnati Ben-Gal cheerleader, was allowed to press her defamation case against a content platform – – over two user submissions. Ms. Jones alleged that the submissions and comments tarnished her reputation. However, while some of the commentary he offered was crude, site operator Nik Richie did not author the defamatory content about Ms. Jones, nor did any other employee of the site. Section 230 should therefore bar them from being “treated as the publisher or speaker of any information provided by another information content provider.”

Where the Judge Went Wrong

In denying Richie’s motion for judgment as a matter of law in 2012, the judge presented three reasons supporting his ruling that was not entitled to protection. Each is contrary to established precedent and a distortion even of the cases cited as authority.

First, he pointed to the website’s name, supporting his rationale through a clear misreading of the 2009 decision in Fair Housing Council v. In Roommates, the Ninth Circuit carved out a very narrow exception to Section 230, restricting immunity for sites that require purportedly illegal content from users. The bar is quite high, so this doesn’t create an easy route to liability for operators: in his preliminary research, Professor Eric Goldman has found that 75% of all opinions citing Roommates favor the operator and apply the immunity.

The Jones judge incorrectly broadened the Roommates carve-out, holding Richie liable because he specifically encouraged the posting of scandalous, gossipy content (even though much that is gossipy is perfectly lawful). The result is a gross overstatement of the Roommates holding that would threaten any site designed for controversial discussion.

Second, the judge found that the manner in which the site is managed, namely that Richie reviews and selects the user-generated posts and refused to remove the postings in question, was sufficient to defeat 230’s protection. But Section 230 says precisely the opposite; in Zeran v. America Online, the Fourth Circuit held that “to hold a service liable for its exercise of a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content – are barred.” Congress enacted Section 230 in order to encourage voluntary editorial efforts by providing content hosts with “a reasonable way to … help them self-regulate themselves without penalty of law.” In ignoring this fact, the judge discounted one of the most important aspects of Section 230 protection.

Third, the judge cited the fact that Richie added his own commentary to the postings and thus “effectively ratified and adopted the defamatory third-party post.” While Richie added comments to the defamatory postings, none of his statements are themselves defamatory – and Jones didn’t allege that they were. The defamatory content on was unilaterally drafted and submitted by a third party and should have been shielded from liability for it as Section 230 requires.

Fixing the Law in the Sixth Circuit

Unfortunately, the trial court judge was not the only one to err in this case. When its motion for judgment as a matter of law was denied in early 2012, appealed to the Sixth Circuit, which dismissed the appeal and allowed the case to proceed to trial. The Sixth Circuit concluded that’s denial of Section 230 protection did not merit immediate review because it was not persuaded that delaying the appeal would imperil a substantial public interest.

But denying protection where it is due and allowing cases against intermediaries to proceed to trial does imperil a substantial public interest. In order to promote the development of interactive online platforms and to preserve the Internet’s vibrant free market, Section 230 was purposely designed to be a strong shield not only from liability for user content, but also from costly and time-draining lawsuits. The Sixth Circuit’s refusal to dismiss the case before the full trial endangers the next generation of content platforms, leaving operators to fear that they will be dragged through expensive and legally unsupported lawsuits.

With the present appeal – which will produce the Sixth Circuit’s first opinion on the merits of Section 230 – the court has the opportunity to partially remedy the earlier mistakes. We urge the appellate panel to overturn the lower court and reaffirm the fundamental purpose and value of Section 230 as recognized by courts in hundreds of other cases: to maximize free expression online, website operators must not be held liable for the content their users post.