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Amici Tech Giants Raise Stakes in TheDirty v. Cheerleader Case

By William Peacock, Esq. | Last updated on
Our first take on this case was that it seems to be pretty cut and dried: the Kentucky-based federal district court misinterpreted the Communications Decency Act when it held gossip site could be held liable for users' scurrilous comments about Sarah Jones, a former Cincinnati Bengals cheerleader. The comments discussed her rumored sexual habits and certain sexually transmitted diseases that she was alleged to have acquired. The CDA is clear: Internet service providers can't be held liable for user-submitted content. And, despite the site's founder playing a moderator role to the comments, the CDA still should apply (it was passed in response to the landmark Stratton Oakmont v. Prodigy case where, as here, a service was held liable due to its active role as moderator). We're not the only ones that think so either. A whole bunch of tech companies just submitted briefs to the Sixth Circuit Court of Appeals, for which the CDA's limitations is an issue of first impression. Their take matches ours, and every other circuit court to have decided the issue.

Roster of Tech Giants

Who joined the amicus brief? (Deep breath.) Advance Publications, Inc.,, Inc., Awo, Inc., Buzzfeed, Inc., Cable News Network, Inc., LLC, Gawker Media, LLC, Magazine Publishers of America, Inc., The McClatchy Company, The Reporters Committee for Freedom of the Press, TripAdvisor LLC, Yahoo! Inc., and Yelp Inc. You'll notice that nearly all of those companies are blogs, magazines, or broadcast and print news companies, the exact parties who stand to lose the most if the CDA is narrowed. After all, doesn't every company practice some form of moderation (such as deleting spam or abusive comments on articles)? While the CDA may have began as a way to protect Internet Service Providers from being sued for users' salacious comments on message boards, it now serves as a shield to a wider range of companies, including traditional and nontraditional press.

The Argument

"If websites are subject to liability for failing to remove third-party content whenever someone objects, they will be subject to the 'heckler's veto,' giving anyone who complains unfettered power to censor speech," the amici argue. The brief provides examples of content that could result in liability, such as user reviews on Amazon, or CNN's iReport, which solicits citizen journalism and crime tips.

The Counter-Argument

The court's holding centered on TheDirty's active moderation and implied encouragement and adoption. On many of the user-submitted "tips," Nik, the site's owner and operator, would add a comment, including one of the Jones comments, where he made a remark about how teachers are "freaks in the sack."

District Court Stands Alone?

The district court held that TheDirty could be liable under an implicit encouragement theory, a theory not favored by other circuits, including the Tenth (liability only attaches when the information acquired "would almost invariably require someone to violate the [law].") and Ninth Circuits ("[W]eak encouragement cannot strip a website of its section 230 immunity, lest that immunity be rendered meaningless as a practical matter.") doesn't pay its users to uncover illegal information, like the Tenth Circuit case. At best, Nik's comments could be seen as the sort of "weak encouragement" mentioned by the Ninth Circuit. And with unfettered speech and modern press mediums at stake, let's hope the Sixth Circuit sees it the same way. Related Resources:
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