Encouraging Section 230 Immunity Argument in the Sixth Circuit

by Paul Alan Levy

Last week the Sixth Circuit held oral argument in Jones v. TheDirty.com, a case where a high school teacher and pro-football cheerleader sued an online web site for hosting comments asserting that she had sex with several football players and speculating about whether she had contracted sexually transmitted diseases.   The trial court had rejected TheDirty’s motion for summary judgment based on section 230 immunity, based in part on the fact that the site’s proprietor often added his own comments to posts, some of which implied acceptance of the truth of the statements, and based in part on the theory that, given the site's name ancd certain comments by its proprietor, the whole purpose of the site was to attract salacious postings.  After the first trial resulted in part on a verdict for the site’s host and in a hung jury, a second trial produced a six-figure verdict for the plaintiff.

In several past posts, I have discussed the importance of section 230 immunity as a guarantee for the system of online speech, encouraging hosts to edit or reject offensive material while ensuring that the costs and risks of litigation  do not allow anybody who can afford to hire a lawyer to send a demand letter — or, indeed, anybody who sends even a pro se threat of litigation — to get criticisms removed from the Internet through a heckler’s veto.   This appeal was worrisome both because the Sixth was one of the few circuits that had not yet addressed the issue of section 230 immunity, and because the facts appeared to be so challenging (for example, one of the posts at issue in the litigation was adorned by the host’s comment “Why are all high school teachers freaks in the sack?”).

It can be perilous predicting outcomes from judges’ comments at oral argument, but the audio of the argument is well worth a listen.  The judges seemed to have transcended the most troubling facts to focus on the broader public policies and the unanimous view of other courts that Congress intended section 230 to insulate web hosts from being sued for material they host.  The panel (Gibbons, Griffin and Guy) even sounded sympathetic to those Congressional judgments.  Meanwhile, the most troubling facts fell out of the case, in part because while the case was pending the plaintiff pleaded guilty to criminal offenses relating to having sex with one of her own students; the plaintiff thus had to withdraw her claims based on the site operator’s comments standing alone, and the site operator was able to agree during oral argument that "of course" his clients could be held liable if any comments they made accompanying the hosted material were actionable.  David Gingras, representing The Dirty and its proprietor, was able to focus on the underlying policy issues and on the adverse consequences of any result besides an outright reversal of the verdict.   Considering how well Gingras did in his argument, I was surprised to learn that it was his first appellate argument.  

The teacher’s lawyer, meanwhile, had to contend with questions pointing out that the trial judge’s analysis of section 230 was very much an outlier that no appellate court anywhere had adopted, and he found it difficult to avoid repeatedly evading questions lest he give away his case entirely. He also faced extra skepticism as a result of the initial litigation judgment of the lawyer who began the lawsuit not to sue the individual commenters, but to sue only the host even though appellee counsel had to agree that the individual reviewer could have been sued (although in the circumstances it appears that any identifying information was deleted in time between when the post were made and when the lawsuit was brought against the proper defendant).

The opinion remains to be published, and we can still worry about the dictum.  But based on the tone of the oral argument, there is reason for optimism.