Thursday, January 18, 2007

Judge: Bloggers Entitled to Immunity Under Communications Act

Shannon P. DuffyThe Legal Intelligencer

Bloggers cannot be hit with libel suits on the basis of anonymous postings on their Web sites because federal law grants them immunity by explicitly stating that they cannot be treated as the "publisher" of such comments, a federal judge has ruled.

1 comment:

cyberray said...

Bloggers cannot be hit with libel suits on the basis of anonymous postings on their Web sites because federal law grants them immunity by explicitly stating that they cannot be treated as the "publisher" of such comments, a federal judge has ruled.

In his 22-page opinion in DiMeo v. Max, U.S. District Judge Stewart Dalzell held that the pre-emption clause of Section 230 of the Communications Decency Act -- a provision that remains intact despite court rulings that struck down some of its key provisions -- effectively "overrides the traditional treatment of publishers under statutory and common law."

The opening paragraphs of Dalzell's opinion offer some jaw-dropping descriptions of the two colorful players in the case -- the blogger, Tucker Max, and the plaintiff, Anthony DiMeo III, the scion of a New Jersey blueberry farm owner who operates a publicity firm.

As Dalzell put it, "Tucker Max describes himself as an aspiring celebrity, 'drunk' and 'asshole' who uses his Web site,, to 'share [his] adventures with the world.'"

DiMeo's lawsuit stems from a series of anonymous postings on the messageboards of Max's Web site that discussed a Dec. 31, 2005, party thrown by Renamity -- DiMeo's publicity firm -- that Dalzell describes as "the New Year's Eve party from hell."

According to court papers, Renamity held the party in Le Jardin, a restaurant located in the Philadelphia Art Alliance gallery. Planned as a four-hour fĂȘte for 325 guests with food and an open bar, the party ran into problems.

As Dalzell described it, "twice as many people appeared. When alcohol and food ran out well before midnight, attendees -- who had paid $100 each -- became disenchanted."

The party soon became a subject of discussion on Max's Web site, and anonymous posters directed a steady stream of nasty remarks at DiMeo.

In his lawsuit, DiMeo claimed that six of the postings were libelous.

Perhaps the harshest of the comments, according to the opinion, was one that read: "'You threw an absolutely disastrous party on New Year's Eve precipitated by false advertising and possible fraud.'" Another said: "'I can't believe no one has killed him yet.'"

Although DiMeo conceded that Max had not authored the comments himself, the suit alleged that Max was nonetheless liable because he had published them.

The suit also alleged a claim under Section 223(a)(1)(3), a federal criminal statute that prohibits anonymously using a telecommunications device to harass someone.

But Max's lawyers -- Michael K. Twersky, John G. Papianou and Katherine Skubecz of Montgomery, McCracken, Walker & Rhoads -- moved for dismissal of the entire suit, arguing that none of the comments, when read in context, was capable of defamatory meaning and that Max could not be held liable for anonymous speech that others posted on his Web site.

Now Dalzell has sided with the defense team and held that the CDA grants immunity to a blogger in such a case -- even if the blogger admits that he exercises some editorial control over the anonymous postings.

Dalzell found that Congress enacted Section 230 for two reasons -- to "promote the free exchange of information and ideas over the Internet," and to "encourage service providers to self-regulate the dissemination of offensive material over their services."

Dalzell concluded that the purpose of Section 230 was to provide immunity from libel suits for Internet providers -- including bloggers.

Without such immunity, Dalzell said, the freewheeling nature of speech on the Internet would suffer.

"Absent federal statutory protection, interactive computer services would essentially have two choices: (1) employ an army of highly trained monitors to patrol (in real time) each chatroom, message board, and blog to screen any message that one could label defamatory, or (2) simply avoid such a massive headache and shut down these fora," Dalzell wrote.

"Either option would profoundly chill Internet speech," Dalzell said.

Before the CDA was passed, Dalzell noted, courts had held that interactive service providers that removed offensive material from their sites risked liability.

In its 1995 decision in Stratton Oakmont Inc. v. Prodigy Services Co., the New York Supreme Court held a service provider liable because it screened and edited messages posted on its bulletin boards. Such editorial activity, the court reasoned, rendered the provider a publisher for defamation purposes and thus subject to strict liability.

Dalzell found that in passing Section 230, Congress was "concerned that cases like Stratton Oakmont would discourage providers from screening offensive content on their own sites."

As a result, Dalzell said, Congress enacted Section 230 "to insulate them from liability for any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected."

Dalzell concluded that the immunity applied to bar DiMeo's libel claims because "Max did not create the anonymous posts. The posters authored them entirely on their own."

DiMeo's lawyer, Matthew B. Weisberg of Prochniak Poet & Weisberg in Morton, Pa., argued that since Max admitted that he can select which posts to publish and that he edits their content, he exercises a degree of editorial control that rises to the "development of information."

Dalzell disagreed, saying, "If 'development of information' carried the liberal definition that DiMeo suggests, then Section 230 would deter the very behavior that Congress sought to encourage. In other words, Section 230(c)(1) would not protect services that edited or removed offensive material."

One of Congress' goals, Dalzell said, "was to promote this kind of self-regulation. Thus, 'development of information' must mean 'something more substantial than merely editing portions of [content] and selecting material for publication.'"

Since DiMeo alleges that Max did no more than select and edit posts, Dalzell said, "we cannot consider him to be the 'provider' of the 'content' that DiMeo finds to be offensive."

In his closing paragraphs, Dalzell cited his own 1996 opinion in American Civil Liberties Union v. Reno in which, as one member of a unanimous three-judge panel, the court struck down key provisions of the CDA:

"Some of the dialogue on the Internet surely tests the limits of conventional discourse. Speech on the Internet can be unfiltered, unpolished, and unconventional, even emotionally charged, sexually explicit, and vulgar -- in a word, 'indecent' in many communities. But we should expect such speech to occur in a medium in which citizens from all walks of life have a voice," Dalzell wrote.

That same sentiment, Dalzell found, applied to DiMeo's claims against Max.

"There is no question that could be a poster child for the vulgarity we had in mind in 1996," Dalzell wrote.

"But as we added then, 'we should also protect the autonomy that such a medium confers to ordinary people as well as media magnates.' Here we do so by protecting the coarse conversation that, it appears, never ends on"

In an interview Thursday, Weisberg said DiMeo intends to appeal Dalzell's ruling.

Weisberg said he believes Max is not entitled to Section 230 immunity because his Web site was "targeting" DiMeo, and "the intent was character assassination."

The evidence, Weisberg said, showed that Max "exercised such control that he became the speaker."

Meanwhile, Max's recent posts on his Web site express glee over Dalzell's opinion.

"The judge's decision is awesome. ... Most importantly, it completely and totally reaffirms basically all the tenets of free speech that DiMeo was challenging," Max wrote.