The $338,000 Internet Comment

(Updated below)

We’ve written before about Section 230 of the Communications Decency Act of 1996 — a federal law that protects the robust diversity of free speech we’ve come to know and love (and hate) on the Internet. Last night, the ACLU and the ACLU of Kentucky had a chance to put our money where our mouth is. We filed a friend of the court brief on behalf of the user-generated gossip website (warning: not just a clever name) and its publisher Nik Richie, who were recently — and wrongly — held legally responsible for someone else’s internet trolling. Our brief, filed alongside a star-spangled list of organizations dedicated to free speech, argues that the decision could be a disastrous precedent for Internet speech.

Section 230, 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. is probably best known for its role in breaking the latest Anthony Weiner scandal. In 2009, the site posted an anonymously submitted story stating that Sarah Jones, a high school teacher and Cincinnati Bengals cheerleader, slept with the entire Bengals team. A second post alleged Jones had sex with her husband in her classroom and had STDs.’s publisher, Nik Richie, then added his own fateful commentary at the bottom of this post: “Why are all high school teachers freaks in the sack? – nik.”

Jones then filed a lawsuit against Richie and the site, claiming the two posts alleging she had STDs were defamatory. To be clear, the posts accusing Jones of having STDs and sleeping with the team were absolutely defamatory. But Jones didn’t sue the person who wrote the posts. She sued and Richie for hosting them.

The defendants claimed that Section 230 provided immunity because those posts were authored by a third party, but the judge (incorrectly) disagreed. He held, basically, that Richie was asking for it, due to the name of the site, Richie’s general “encouragement” of gossip, and his “adoption” of the anonymous defamation by wondering aloud why teachers are freaky. (It’s important to note that asking why all teachers are freaky is absolutely not itself defamatory, and no one in this case claimed otherwise.) The judge then instructed the jury that Richie was on the hook for the anonymous poster’s defamation of Jones; the jury awarded her $338,000 in damages. (Interestingly, this took two jury trials — the first jury couldn’t reach a verdict after hearing about Jones’ intervening felony conviction for having sex with one of her students.)

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 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 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, 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, 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.

Update (June 16, 2014):

This decision was overturned; blog post here.

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One gets the feeling that these corporations, who became people in 2010, have no ability to handle even the tiniest ripple on the lake that is their deranged emotional composition.
Or if you want the unvarnished opinion, they're great big bawling babies who have no right to talk about anybody else "not taking responsibility for their own actions or feelings" because they don't do it either. They're always passing off their responsibility and blaming someone else for it.

I think they're pathetic and that they'll never have anything I want as long as they act like this. I don't know why they all walk around thinking everyone's envious of them. I'd envy a giant squid before I'd want to be like THEM.

I never do any of the things mentioned except for the time after my friend was shot at Sandy Hook Elementary School and Wayne LaPierre went on national television talking about a load of unadulterated GARBAGE and never even said a WORD about what had happened to all those people.
I made a comment on my own timeline about what I thought of him and was banned from Facebook for 24 hours because I "didn't know how to be appropriate in a community setting."
As if Wayne LaPierre DID know how to be appropriate when, no more than a week after 20 first-graders and 6 teachers were shot multiple times in the face and killed, HIS biggest concern was protecting all his stupid guns and he made that fact obvious on national TV.
The fact that the NRA shut down all their communication for a week after it happened wasn't lost on me either. I'm still waiting to hear of a bigger coward than Wayne LaPierre and his NRA freaks.


This absolutely MUST BE OVERTURNED! How dare the Judge decide to ignore the Law, he has NO right to do that, NONE! Its like I heard someone say recently..."The Truth? The Truth is whatever I say it is!" Not only does the decision need to be overturned, but he Judge should be severely chastised for ignoring the law of the land, and having the audacity to impose his own opinion as superior to that of the law. What an ARROGANT SOB!


I'm not sure if I agree or disagree. I can't decide. Malicious intent is something I may consider to be , or perhaps should be ammended along with not yelling fire in a crowded theater. As owner of the website, he rather endorsed the defemation by his comment when he should have removed it. What is your opinion? Do I present a valid arguement?


Interesting. The ACLU is defending the right to bully with no recourse for the victim. Seems like the ACLU's focus is shifting from the rights of individuals to the "rights" of corporations. Sad! Is this decision based on corporate sponsorship or a real look at what you are actually defending?

Curts J Neeley Jr

The purpose of 230 was protecting ISPs and was NEVER meant to protect user content.
In (5:13-cv-5293) the ACLU will soon learn the obvious constitutional challenge to 230.


I don't always agree with the ACLU, but the court overstepped this time.


The court overstepped this time.


Personally, I think that "men" who write what this Nik dude did are PROBABLY wanton liars, and who's really going to get the proof of it? People seem more interested in just having a knee-jerk reaction to it than wondering seriously how he'd KNOW if high school teachers are freaks in the sack.
I'd guess he's been to bed with a total number of people he could count on one hand, not that he's some stud-muffin who's had so much experience that he could make such a statement that implies he's a regular Don Juan De Marco.
It's been my experience that people who talk about it most haven't done it as much as they talk about having done it.

I knew a woman like that, actually. She worked at a Strip Club as an "exotic dancer," wore certain clothes and showed certain attitudes, but none of it was who she really is. All the men - and plenty of women - thought so though. They never bothered to look below the veneer.
But she WASN'T and ISN'T the things she shows everybody or that they interpret that way.

I have a hard time trusting ANYbody whose character I know solely from online and nowhere else.
Nobody in my daily life acts the way certain people online do. To sum it up, you only see certain things online but not in face-to-face communication, which is why I question it.

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