Life Imitating Law?

Internet law students who remember Jones v. Dirty World, involving a federal court defamation suit by Cincinnati Bengals cheerleader Sarah Jones against gossip website The Dirty (the Eastern District of Kentucky ruled that it could exercise long-arm jurisdiction over the Arizona-based defendant) may be interested in this news report that Jones has been arrested.  It’s a bizarre twist if the allegations are true.

Small Town Dirt, Served Fresh Daily

Small towns in rural America are putting their own spin on social networking: “they write and read startlingly negative posts, all cloaked in anonymity, about one another” on sites hosted by Topix such as Mountain Grove Forum.  The New York Times reports in “In Small Towns, Gossip Turns to the Web, and Turns Vicious” that

Topix, a site lightly trafficked in cities, enjoys a dedicated and growing following across the Ozarks, Appalachia and much of the rural South, establishing an unexpected niche in communities of a few hundred or few thousand people — particularly in what Chris Tolles, Topix’s chief executive, calls “the feud states.” One of the most heavily trafficked forums, he noted, is Pikeville, Ky., once the staging ground for the Hatfield and McCoy rivalry.

Anonymity, website immunity under federal law from liability for defamatory content created by third parties, and long-time social connections and population stasis of small towns combine to make online gossip popular, riveting, and divisive. And good business:

Topix said it received about 125,000 posts on any given day in forums for about 5,000 cities and towns. Unlike sites like Facebook, which requires users to give their real name, Topix users can pick different names for each post and are identified only by geography. About 9 percent are automatically screened out by software, based on offensive content like racial slurs; another 3 percent — mostly threats and “obvious libel,” Mr. Tolles said — are removed after people complain.

CMLP on Juicy Campus’s Demise

Citizen Media Law Project says farewell to JuicyCampus.com, wistfully noting that the site’s passing means there will be no lawsuit to test the scope of Section 230.  As the CMLP post notes, the 9th Circuit’s decision in Fair Housing Council v Roommates.com provides an argument that JuicyCampus’s encouragement of defamatory postings mades it a co-developer or co-creator of actionable content.  We’ll never know.  Internet law students from a few semesters back will recall the thinly-disguised exam question posing this very issue.  Their consensus, by a narrow margin?  My hypothetical website would lose its immunity from liability, based on facts somewhat more pro-plaintiff than the real site.

Limits on Limited Liability?

On the other hand . . . the Internet is filled with nasty stuff.  Juicy Campus is gone–it was “launched as a cesspool, and it died because it never evolved into anything else” (source)–but it was never more than a pimple on the Internet’s hate-spewing, vicious, inane, juvenile, lowest-common-denominator underbelly.  Comments on most every site that allows them and unmoderated discussion threads devolve with numbing rapidity into the worst of human discourse.  Two laws, the First Amendment and Section 230 of the Communications Decency Act, enable this environment by shielding the speakers of all but actionable speech (primarily defamation and obscenity) from liability and the websites hosting the speech from liability for all speech, actionable or not, as long as they are not responsible in whole or in part for creating or developing the speech.

Section 230 may be vulnerable.  Parents and school administrators concerned about cyber-bullying and persons victimized by defamatory or otherwise offensive anonymous speech that enters the queue of the Internet’s permanent playlist, among others, wring their hands and wail “can’t someone do something?”  Responding to this question invariably yields bad results. If we do “something” it is usually what is easiest, what is most popular, what produces the best feeling of short-term accomplishment.  We rarely attack the problem’s root or think clearly about whether no action is better than misplaced action.

Section 230 is neither perfect nor sacrosanct but I am wary of any attempts to limit its scope, whether they come in through the front door or the back.  The lawsuit by two former Yale Law School students against their anonymous defamers and attackers on AutoAdmit.com may, as this article from Portfolio.com states, “forc[e] internet intermediaries to bear greater responsibility for what they carry.” The lawsuit may also be “an all-expenses-paid elitist temper tantrum . . . [that fails] to differentiate between the really wicked and some of the tamer flamers.”  The linked article by David Margolick recounts the events leading up to the lawsuit and the results so far.  This suit suffers from a weakness common in  defamation suits against anonymous online posters. The posts are disgusting, shocking, and offensive, but they are opinion and not defamatory.  Even putative statements of fact (such as allegations that one of the AutoAdmit plaintiffs had herpes) can be non-actionable if the context in which they are made is “juvenile and hyperbolic.”

It is the plaintiffs’ “meager catch” that threatens website immunity:  “[t]he fact that so few prey were netted could prompt calls to modify Section 230(c), if only to give victims of internet abuse more of a chance.”

No Factual Statement, No Defamation

Why do people bring claims like this? Pamela Greenbaum, a member of the Lawrence, N.Y. school board, sought from Google the identity of the anonymous creator of the Orthomom blog, which Google hosts on Blogger. Greenbaum, who opposes use of public school funds to benefit private-school students, claims the blogger defamed her. The offending statement? “Way [for Greenbaum] to make it clear that you have no interest in helping the private school community.” Greenbaum claims this statement paints her as anti-semitic–a preposterous interpretation. Because Greenbaum’s claim is so weak the court refused to unmask the author.

Greenbaum’s case is not a close call. Defamation requires an untrue statement of fact. Opinions do not constitute defamation. They cannot be proven or disproven. One wonders whether Greenbaum’s lawyer advised her to proceed with such a thin case.

Cornwell Fights Sachs’s Attacks

Author Patricia Cornwell knows the boons and banes of success, enjoying multi-million book advances and battling lawsuits and stalkers. The Boston Globe has an article today about her troubles with Leslie R. Sachs who, since 2000, “has been filling websites with a relentless stream of vitriolic accusations against Cornwell . . .” I won’t repeat Sachs’s paranoid accusations, which The Globe article recounts. My interest is in Cornwell’s defamation suit against Sachs, specifically in the federal court order she obtained this week that requires Sachs to remove his attacks from the Internet. Enforcing this order reminds me of playing with the blobs of mercury my dentist gave me as a child (it was a more innocent age–I don’t think it was a plot to poison me): you push down in one spot and the blobs squish apart and reform elsewhere. Cornwell’s Boston counsel, Joan Lukey, has developed a smart strategy to address this problem. Rather than provoke the knee-jerk Internet response of spreading Sachs’s rants in response to what some would perceive as court-ordered censorship, Lukey is sowing an information campaign to dilute them:

Lukey intends to take [the court’s] order to Internet service providers and search engines, and ask them to put up a link, so a search that turns up Sachs’s allegations will automatically lead to the court order that found them to be false, rather than try to get them to remove Sachs’s pages from the search results. Already a Google search using “Patricia Cornwell” turns up news stories and blog comments reflecting her side of the battle.

I just performed a Google search for “Patricia Cornwell.” As of this writing Wikipedia, the second result, is the sole hit in the top ten to mention Cornwell’s libel suit against Sachs. (Sachs has tried to rewrite Cornwell’s Wikipedia biography only to be have his revisions undone.) References to Cornwell’s defamation suit show up among the next ten links. No doubt Cornwell would like higher search placement but the court order has only been in effect since yesterday. I’ll compare the results in a few days.