The American Civil Liberties Union is standing up for the Scottsdale-based gossip website TheDirty.com, and its founder Nik Richie.
The ACLU and other legal organizations are going to bat for Richie after he lost a defamation lawsuit over comments someone else made, which were posted on TheDirty.com. An ACLU staff attorney says Richie was "wrongly . . . held legally responsible for someone else's internet trolling."
A jury awarded former high school teacher and Cincinnati Bengals cheerleader Sarah Jones $338,000 in damages as a result of two comments people posted to the website in 2009:
Nik, this is Sara J, Cincinnati Bengal[sic] Cheerleader. She's been spotted around town lately with the infamous Shayne Graham. She also has 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!
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 . . what's worse is he brags about doing sarah in the gym . . football field . . her class room at the school where she teaches at DIXIE Heights.
The first jury trial ended in a mistrial, due to a deadlocked jury, but the jury sided against Richie in the second trial.
The ACLU has now filed a "friend of the court" brief on Richie's behalf in the appeal -- along with other legal organizations -- and ACLU staff attorney Lee Rowland posted an explanation on the ACLU's website, reading, in part:
Section 230 [of the Communications Decency Act of 1998], which immunizes websites from legal liability for the comments of their users, defines Internet culture as we know it. You know how you could, if you were so inclined, go on Yelp and trash a business? Section 230 ensures that if you lie, and the company sues you for defamation, you're on the hook for lying, not Yelp. Similarly, if you use Facebook to harass someone -- don't do that, by the way -- Facebook doesn't become the defendant; you do.
When Congress enacted Section 230, it wisely recognized that holding every website legally responsible for user-generated content would cripple the rapidly developing online world. Section 230 liberates websites from the chilling effect caused by the fear of being sued every time an Internet user exercises bad judgment.
The vast majority of courts have honored Section 230's robust immunity. But a court recently bucked this principled tradition when faced with the salacious set of facts in this case.
Richie (real name: Hooman Karamian) and TheDirty.com shouldn't have been held responsible for someone else's anonymous comments, the ACLU and other organizations contend.
"This decision risks eroding the certainty websites currently enjoy that they won't spend every day litigating over their comment section," Rowland writes.
Rowland says this is exactly what that section of the Communications Decency Act of 1998 was supposed to prevent:
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.
These sites, just like TheDirty.com, solicit and collect (truthful) negative commentary that could absolutely ruin a business or individual's reputation. They rely on user-generated content to populate their sites, and sometimes react to it as though it's true. Their users, like anyone else on the net, and like the anonymous troll on TheDirty.com, might lie. And Section 230 places the consequences for those lies squarely on the shoulders of the liar -- not the website that hosted the speech just because it waded into critical waters.
But the Jones decision threatens to turn every troll's comments into a lawsuit that a website will have to defend.
It's important this decision is overturned, not only for these defendants, but for every website offering platforms for user speech, especially critical speech. This decision risks eroding the certainty websites currently enjoy that they won't spend every day litigating over their comment section. We proudly join the chorus of voices asking the appeals court to overturn it.
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Check out the brief filed by the ACLU on the next page: