sarah jones v. dirty world - renewed motion for summary judgment

7/29/2019 Sarah Jones v. Dirty World - Renewed Motion for Summary Judgment

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

NORTHERN DIVISION AT COVINGTON

SARAH JONES, a/k/a/JANE DOE,

Plaintiff,

v.

DIRTY WORLDENTERTAINMENTRECORDINGS LLC, et al .,

Defendants.

Case No. 2:09-cv-00219-WOB

Judge William O. Bertelsman

DEFENDANTS’ RENEWEDMOTION FOR SUMMARY JUDGMENTAND, ALTERNATIVELY,MOTION FOR LEAVE TO TAKEINTERLOCUTORY APPEAL PURSUANTTO 28 U.S.C. § 1292(b)

All orders made during pending litigation (except for an order terminating the

entire action and resolving all claims against all parties) are necessarily non-final.

Pursuant to Rule 54(b), all non-final orders “may be revised at any time before the

entry of a judgment adjudicating all the claims and all the parties’ rights and

liabilities.” Fed. R. Civ. P. 54(b) (empahsis added). Thus, Rule 54(b) allows a court

to “change its mind” as to any ruling at any time before the case is over.

As permitted by Rule 54(b), this motion asks the Court to change its mind with

respect to the order dated January 10, 2012 (Doc. #76) which found Defendants were

not entitled to immunity under the Communications Decency Act. Since that time,

events have occurred which clearly show the Court’s original decision was wrong --

wrong as a matter of law and wrong as a matter of evidence. Because the order

mistakenly denying CDA immunity was non-final, it is subject to revision at any time

under Rule 54(b). Because the Court’s original order was erroneous, it should be

corrected -- by granting summary judgment in favor of Defendants.

If the Court rejects this argument, then in the alternative Defendants request an

order certifying this matter for an immediate interlocutory appeal pursuant to 28

U.S.C. § 1292(b). Each of these points are explained fully herein.

Case: 2:09-cv-00219-WOB-CJS Doc #: 177 Filed: 03/07/13 Page: 1 of 20 - Page ID#:2676



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I. INTRODUCTION

Before discussing the specific reasons why the Court’s prior CDA decision

was incorrect, it is important to stop and consider a few “big picture” points, not the

least of which is this—since the CDA was first enacted in 1996, “there have been

approximately 300 reported decisions addressing immunity claims advanced under 47

U.S.C. § 230 in the lower federal and state courts.” Hill v. Stubhub, Inc., 727 S.E.2d

550, 558 (N.C. App. 2012) (empahsis added). Of those 300 cases, only one has ever

gone to trial—this case. The remaining matters were all resolved by dispositive

motion, approximately 99% in favor of the defendant with only a tiny fraction—less

than 1%—ending in plaintiff’s favor.1

By itself, this astonishing statistic should cause serious concern—how could

300 different courts (including many federal circuit courts) view the same 26-word

statute and reach exactly the opposite conclusion from the one this court reached?

The answer is not due to any unique facts of this case. Indeed, many other cases

involved facts that were immeasurably worse. Other plaintiffs targeted by online

posts have been raped,2 stalked,3 arrested,4 received death threats,5 and have even been

shot.6

Yet in every instance the courts have steadfastly refused to permit emotion or

sympathy for the plaintiff to affect the application of a crystal-clear federal statute.

1 Despite being nearly 100% unanimous in favor of protecting website owners, these

statistics are actually misleading because one of the rare pro-plaintiff rulings— Fair

Housing Council of San Fernando Valley v. Roommates.com, LLC , 521 F.3d 1157 (9th

Cir. 2008)—was recently terminated in favor of the defendant, thus demonstrating

that the prior ruling denying CDA immunity to the website owner in that case was

incorrect. See Fair Housing Council of San Fernando Valley v. Roommates.com, LLC , 666 F.3d 1216 (9

thCir. 2012) (finding website owner did not violate Fair

Housing Act by asking users to answer questions in connection with rental service).2 See Doe v. MySpace, Inc., 528 F.3d 413 (5

thCir. 2008).

3 See Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003)4 See Doe v. SexSearch.com, 502 F.Supp.2d 719 (N.D.Oh. 2007) (aff’d on other

grounds, 551 F.3d 412 (6th

Cir. 2008)).5 See Zeran v. AOL, 129 F.3d 327 (4th Cir. 1997).6 See Gibson v. Craigslist, Inc., 2009 WL 1704355 (S.D.N.Y. 2009).




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This Court must do the same, and this means the Court must reconsider and

reverse its prior order for at least three different reasons. First, the Court simply

misapplied the law and as a result it adopted the wrong legal standard. If the Court

had applied the correct standard it would have had no choice but to enter summary

judgment in favor of Defendants. Second, the Court based its original decision on

facts which were unsupported by any evidence and which were directly contrary to the

undisputed evidence. Third and perhaps most importantly, the Court’s original

decision was based on a legal theory that Plaintiff has since abandoned—i.e., that Mr.

Richie added his own defamatory content by asking: “Why are high school teachers

freaks in the sack?” Ms. Jones previously argued this comment was independently

defamatory, and the Court apparently accepted that position when it determined that

Mr. Richie was not protected by the CDA.

Since then, Ms. Jones has completely changed her position. She no longer

argues that Mr. Richie’s “freak in the sack” comment was actionable because she now

concedes the statement was absolutely true. Based on this change, the only remaining

actionable material is nothing more than content submitted to www.thedirty.com by

third parties without the slightest contribution or participation by Defendants. Under

the crystal-clear standards of the CDA, Defendants are entitled to absolute immunity

for “publishing” such content. For that reason, summary judgment must be entered in

favor of Defendants.

However, if the Court disagrees with this conclusion, rather than forcing both

parties to endure the cost and emotional hardship of a second trial, the Court should

instead issue an order finding the matter appropriate for an immediate interlocutory

appeal pursuant to 28 U.S.C. § 1292(b). Such a result would provide a quick and

efficient way for the Court of Appeals (and perhaps the U.S. Supreme Court) to

review the CDA and resolve any ambiguity as to its application. Resolving that

question is essential to the final disposition of this matter, so an interlocutory appeal

should be granted if the Court disagrees with Defendants’ interpretation of the law.




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II. ARGUMENT

a. The Court’s Prior Order Denying CDA Immunity Was Based

On An Incorrect Legal Standard

Before discussing the specific reasons why the Court’s prior CDA ruling was

incorrect, it is important to step back and review the normal three-part legal test used

by virtually all courts when determining whether CDA immunity applies. This test

asks three simple yes-or-no questions:

1.) Is the defendant a provider or user of an “interactive computer

service”?

2.) Do the plaintiff’s claims require treating the defendant as a

“publisher or speaker” of information? And

3.) Was the allegedly actionable material provided by another information content provider?

See Courtney v. Vereb, 2012 WL 2405313, *4 (E.D.La. 2012) (setting forth test)

(citing Smith v. Intercosmos Media Group, Inc., 2002 WL 31844907 (E.D.La. 2002));

see also Klayman v. Zuckerberg , 2012 WL 6725588, *3 (D.D.C. 2012) (reciting same

3-part test) (citing Parisi v. Sinclair , 774 F.Supp.2d 310, 315–16 (D.D.C. 2011)

(same) (citing Nemet Chevrolet, Ltd., v. Consumeraffairs.com, Inc., 564 F.Supp.2d

544, 548 (E.D.Va.2008), aff'd , 591 F.3d 250 (4th Cir. 2009)); see also FTC v.

Accusearch, Inc., 570 F.3d 1187, 1196 (10th Cir. 2009) (discussing three elements of

immunity); DiMeo v. Max, 433 F.Supp.2d 523, 529 (E.D.Pa. 2006) (same). If the

answer to all three questions is “yes”, then the defendant is immune under the CDA.

Appling this simple test here is exceptionally easy. First, Mr. Richie and Dirty

World operate the website www.thedirty.com. As such, they are providers of an

interactive computer service; “Courts generally conclude that a website falls within

‘the definition of an interactive computer service.” Zuckerberg , 2012 WL 6725588,

*3 (holding Facebook founder Mark Zuckerberg entitled to immunity under the CDA)

(quoting Ascentive, LLC v. Opinion Corp., 842 F.Supp.2d 450, 473 (E.D.N.Y.2011)

(collecting cases from the First, Fourth, and Ninth Circuits)); see also Universal




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Comm. Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007) (explaining “web

site operators ... are providers of interactive computer services” because “[a] web site

... enables computer access by multiple users to a computer server, namely, the server

that hosts the web site.”) Because Mr. Richie and Dirty World operate an interactive

website, it is undisputed the answer to the first question is YES.

The second question asks whether the plaintiff’s claims require treating the

defendant as either a publisher or speaker of information. Little need be said on this

point because Ms. Jones’s defamation claim fits squarely in that category. See Collins

v. Purdue Univ., 703 F.Supp.2d 862 (N.D.Ind. 2010) (finding CDA applies to

defamation claims because such claims require proof that the defendant published

something); see also Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1101 (9th

Cir. 2009)

(noting, “The cause of action most frequently associated with the cases on section 230

is defamation.”) Because Ms. Jones’ defamation claim treats Defendants as

publishers/speakers, the answer to the second question is also YES.

The final question asks whether the actionable material was provided by

another information content provider; i.e., a third party. If yes, then the inquiry ends

and the website owner is entitled to absolute immunity under the CDA. See Global

Royalties, Ltd. v. Xcentric Ventures, LLC , 544 F.Supp.2d 929, 933 (D.Ariz. 2008)

(explaining, “Through the CDA, ‘Congress granted most Internet services immunity

from liability for publishing false or defamatory material so long as the information

was provided by another party.’”) (empahsis added); see also Barrett v. Rosenthal , 40

Cal.4th

33, 62, 146 P.3d 510, 529 (Cal. 2006) (holding that “By declaring that no

‘user’ may be treated as a ‘publisher’ of third party content, Congress has

comprehensively immunized republication by individual Internet users.”)

Here, despite Plaintiff’s flagrant disregard for the truth, the evidence is

undisputed—every aspect of her defamation claim is based entirely on content created

solely by third parties without even the slightest participation by Mr. Richie or Dirty

World. This is precisely the scenario in which CDA immunity applies; “A Web site




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is generally not a ‘content provider’ with respect to comments posted by third-party

users. We reject [plaintiff’s] contention that defendants should be deemed content

providers because they created and ran a Web site which implicitly encouraged users

to post negative comments ... . Creating an open forum for third parties to post

content—including negative commentary—is at the core of what section 230

protects.” Shiamili v. The Real Estate Group of New York, Inc., 952 N.E.2d 1011,

1018, 17 N.Y.3d 281, 290 (N.Y. 2011) (empahsis added).

The fact that Mr. Richie acts as an “editor” or “publisher” by choosing which

posts to publish and which posts to remove is absolutely irrelevant to this analysis;

“In passing section 230, Congress sought to spare interactive computer services this

grim choice by allowing them to perform some editing on user-generated content

without thereby becoming liable for all defamatory or otherwise unlawful messages

that they didn’t edit or delete.” Roommates.com, 521 F.3d at 1163. See also Ben

Ezra, Weinstein, and Company, Inc. v. America Online Inc., 206 F.3d 980, 986 (10th

Cir. 2000) (holding, “Congress clearly enacted § 230 to forbid the imposition of

publisher liability on a service provider for the exercise of its editorial and self-

regulatory functions.”) Again, the third prong of the test is concerned only with the

source of the allegedly defamatory speech. If the source was a third party who acted

independently, then the website owner is immune. See Global Royalties, supra, 544

F.Supp.2d at 933 (explaining, “Through the CDA, ‘Congress granted most Internet

services immunity from liability for publishing false or defamatory material so long

as the information was provided by another party.’”) (empahsis added).

In sum, applying the CDA’s three-part test to the facts of this case shows that

Defendants are entitled to immunity because the answer to all three questions is

YES—1.) YES, Defendants operate an interactive website; 2.) YES, Ms. Jones seeks

to hold Defendants responsible for “publishing” material; and 3.) YES, all of the

material Ms. Jones claims to be actionable was submitted to the site by a third party.

For this reason, Defendants are entitled to CDA immunity.




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b. Comments re: S.C. v. Dirty World , 2012 WL 3335284 (W.D.Mo.)

At the Court will recall, at the close of Plaintiff’s evidence at trial, Defendants

moved for judgment as a matter of law based on, inter alia, CDA immunity. As part

of that discussion, Defendants informed the Court that after it denied immunity in

January 2012, a different federal court in Missouri reviewed a case arising from a

posting on www.thedirty.com and reached exactly the opposition conclusion—the

Missouri court held that Mr. Richie and Dirty World were protected by the CDA.

That case was S.C. v. Dirty World, LLC , 2012 WL 3335284 (W.D.Mo. 2012).

The facts of S.C. were basically identical to the facts here. In S.C. a third party

submitted a post to www.thedirty.com with comments about the plaintiff which she

alleged were defamatory. In keeping with his usual practice, after selecting and

approving the post for publication, Mr. Richie added a short one-line, non-defamatory

comment about the plaintiff’s appearance, observing: “Her gumlines as big as her

teeth, that’s amazing.-nik.” 2012 WL 3335284, *1. Mr. Richie’s comment was based

on a photograph of the plaintiff included in the post which showed the plaintiff

smiling widely.

Defendants immediately moved for summary judgment. The motion argued

the CDA applied because Mr. Richie’s comment about the plaintiff’s teeth/gums was

non-defamatory and thus the only allegedly actionable content was from a third party

who submitted the post without any specific encouragement or instruction from

Defendants. Not surprisingly, because the summary judgment motion in the Missouri

case was filed after this Court’s January 2012 order denying immunity, the plaintiff in

S.C. argued that the Missouri court should adopt this Court’s legal analysis and find

that Defendants were not protected by the CDA.

The Missouri court rejected this request and refused to follow this Court’s

decision. Instead, the court found that Mr. Richie and Dirty World were entitled to

CDA protection.




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In reaching that conclusion, the Missouri court extensively reviewed and

analyzed this Court’s ruling and found that it was flawed in several major ways. First,

the Missouri court recognized the three main reasons this Court offered for its denial

of immunity:

1.) The name of Defendants’ website (www.thedirty.com);

2.) The manner in which Mr. Riche manages the site; and

3.) The personal comments Mr. Richie added to the posts about Ms. Jones.

The Missouri court then rejected this Court’s analysis because it found that these

reasons were either legally incorrect or factually unsupported. Each point is

explained further below.

i. A Website’s Name Is Irrelevant To CDA Immunity

First, the Missouri court explained: “the CDA focuses on the specific content

at issue and not the name of a website.” Id . at *5 (empahsis added) (citing Global

Royalties, supra , 544 F.Supp.2d at 933 (holding that website called

www.ripoffreport.com might encourage third parties to post defamatory content, but

concluding, “there is no authority for the proposition that this makes the website

operator responsible, in whole or in part, for the “creation or development” of every

post on the site.”)). To be clear—in more than 300+ reported CDA cases, no court

anywhere (except this Court) has ever found that the name of the defendant’s website

affects the site’s immunity under the CDA. In fact, every court to consider that same

argument has rejected it, holding that the name of a website has no bearing on the

site’s CDA immunity. See Global Royalties, supra, see also Whitney Information

Network, Inc. v. Xcentric Ventures, 2008 WL 450095 (M.D.Fla. 2008) (same);

Ascentive, LLC v. Opinion Corp., 842 F.Supp.2d 450, 473 (E.D.N.Y. 2011) (rejecting

argument that website named www.pissedconsumer.com was responsible for every

post on site); Shiamili, supra, 952 N.E.2d 1011, 17 N.Y.3d 281, 2011 WL 2313818

(N.Y. 2011) (holding website called www.shittyhabitats.com was entitled to CDA

immunity).




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The reasons for this rule are clear—just because a website has a controversial

or evocative name does not mean that 100% of all content on the site is always

tortious nor is there any evidence to support that conclusion in this case. Rather, the

undisputed facts show that www.thedirty.com contains substantial amounts of non-

tortious material including generic news stories on a wide variety of topics such as

President Obama, Mitt Romney, Vice President Biden, sports, politics, and so forth.

Examples of such content were submitted with Mr. Richie’s prior summary judgment

affidavit (Doc. #64-2) and additional examples are included with this motion.

Furthermore, if a website’s name was somehow relevant to its CDA immunity,

this would lead to freakish (and almost certainly unconstitutional) results where the

owner of a website with a benign name such as www.TheClean.com would be

entitled to absolute immunity for publishing the exact same content that appears on

www.The Dirty.com while Mr. Richie and Dirty World are denied immunity simply

because the Court disliked the name of their site. Nothing in the plain language of the

CDA would support such an arbitrary and capricious result.

Furthermore, granting or withholding immunity based on a website’s name

ignores the fact that offensive material is extremely common on virtually all sites that

allow user-generated comments, even if the website name is unquestionably benign

like www.facebook.com or www.google.com. This is because the nature of third

party comments depends entirely on the viewpoint of the author, not the name of the

forum in which the author’s comment is posted.

This point is easily demonstrated. For example, in late 2012 Ms. Jones filed a

new lawsuit against the Cincinnati Enquirer accusing it of defamation based on a

news article it published in March 2012. The article reported that Ms. Jones was

charged with having sex with one of the students at Dixie Heights High School (the

same crime to which Ms. Jones later pleaded guilty). Not surprisingly, because the

facts reported in the story were true, Ms. Jones’ lawsuit against the Enquirer was

subsequently dismissed.




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As it often does, the Enquirer posted a story about the lawsuit on its

website:http://news.cincinnati.com/article/20130129/NEWS0103/301290128/Lawsuit

-accusing-Enquirer-libel-Jones-case-dismissed . As most websites do (including

www.thedirty.com) the Enquirer allowed users to post comments expressing their

opinions and thoughts about the story. In light of Ms. Jones’ odd decision to file a

defamation lawsuit based on a news article which was completely true, virtually all of

the comments on the Enquirer’s website are harshly critical of Ms. Jones and her

lawyer. In particular, one person referred to Plaintiff’s counsel as “a filthy scum bag

and a liar” and stated that “Jones is a known whore and a spreader of disease.”

These comments are, of course, virtually identical to those posted on

www.thedirty.com which Ms. Jones seeks to impose liability on Mr. Richie for

“publishing”. Thus, it is clear that the name of the website where the comments were

posted (www.cincinnati.com) played no role in “encouraging” the caustic nature of

the comments—the harsh comments were simply expressions of the reader’s view of

the story and the people involved—exactly as is true of www.thedirty.com. Of

course, as the operator of an interactive website which allows third parties to post




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comments, the Cincinnati Enquirer is entitled to CDA immunity for such comments.

See Collins, supra, 703 F.Supp.2d at 878–79 (finding newspaper owner was entitled

to CDA immunity for “reader comments” about news article posted on its website).

Thus, it is improper to suggest that CDA immunity should turn on the name of the

website at issue. Such a rule would produce unfairly arbitrary results and would

create such a large and vague exception to the CDA that the law would be rendered

virtually useless.

By the same logic, courts have consistently held that website owners cannot be

denied immunity merely because they created a category for content that might be

potentially illegal. For instance, in Chicago Lawyers Comm. For Civil Rights Under

Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th

Cir. 2008) the Seventh Circuit

rejected the argument that the website www.craigslist.org could be held responsible

for “causing” unlawful discriminatory content to be posted on its site: “Doubtless

craigslist plays a causal role in the sense that no one could post a discriminatory ad if

craigslist did not offer a forum. That is not, however, a useful definition of cause.

One might as well say that people who save money ‘cause’ bank robbery, because if

there were no banks there could be no bank robberies.” (emphasis added). Courts

have used the same logic to conclude that www.craigslist.org is also not responsible

for “causing” advertisements for prostitutes merely because it features an “adult

services” category on its website; “Section 230(c)(1) would serve little if any purpose

if companies like Craigslist were found liable under state law for ‘causing’ or

‘inducing’ users to post unlawful content in this fashion.” Dart v. Craigslist, Inc.,

665 F.Supp.2d 961, 969 (N.D.Ill. 2009).

The same is true here. There is absolutely nothing per se unlawful about the

name of Defendants’ website www.thedirty.com. Moreover, there is nothing per se

unlawful about suggesting that Ms. Jones (or any other person) is “dirty”; this word is

simply is a non-actionable expression of opinion. See Dyer v. Dirty World, LLC ,

2011 WL 2173900, *4 (D.Ariz. 2011) (granting summary judgment in favor of Mr.




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Richie and Dirty World as to claims arising from post on www.thedirty.com because

“No reasonable viewer of Defendant’s website would conclude that Mr. Ritchie’s

comments represented anything but the author’s highly subjective opinion about

Plaintiff.”)

In addition, even if the term “dirty” was somehow independently actionable,

Mr. Richie and Dirty World would still be entitled to CDA immunity because the

decision to post a story about Ms. Jones on www.thedirty.com was made solely by the

third party author(s) who created the posts. In other words, Mr. Richie had nothing to

do with the decision to call Ms. Jones “dirty”—that choice was made solely by the

third party author who decided to submit a post about Ms. Jones. Again, this is

precisely the situation where CDA immunity applies. See Whitney Information

Network, Inc. v. Xcentric Ventures, 2008 WL 450095, *10 (M.D.Fla. 2008)

(explaining, “the mere fact that [defendant] provides categories from which a poster

must make a selection in order to submit a report on the [ripoff report] website is not

sufficient to treat Defendants as information content providers of the reports about

WIN that contain the “con artists”, “corrupt companies”, and “false TV

advertisements” categories. [citations] Rather, the authors of the postings made the

decision to select these categories to describe [plaintiff].”) (empahsis added).

In sum, this Court erred when it concluded that the name of Defendants’

website somehow affected their immunity under the CDA. That aspect of the Court’s

decision was without merit and it should be reversed.

ii. Mr. Richie’s Editorial Conduct Is Absolutely Protected

The second basis for this Court’s denial of CDA immunity was “the manner in

which [www.thedirty.com] is managed.” On this point, the Court offered the

following clarification: “Richie acts as editor of the site and selects a small percentage

of submissions to be posted. He adds a ‘tagline.’ He reviews the postings but does

not verify their accuracy. If someone objects to a posting, he decides if it should be




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removed. It is undisputed that Richie refused to remove the postings about plaintiff

that are alleged to be defamatory or an invasion of privacy.”

These observations closely echoed the arguments of Plaintiff’s counsel

throughout this proceeding—i.e., that because Mr. Richie screens, reviews, and

selects content , he is acting like an editor and therefore he cannot deny responsibility

for the material he edits. This conclusion is literally the opposite of the law; “The

CDA protects the ‘exercise of a publisher’s traditional editorial functions—such as

deciding whether to publish.’” S.C., 2012 WL 3335284, *1 (quoting Zeran v.

American Online, Inc., 129 F.3d 327, 330 (4th

Cir. 1997)). This aspect of the court’s

decision is further supported by the Ninth Circuit’s decision in Roommates —“any

activity that can be boiled down to deciding whether to exclude material that third

parties seek to post online is perforce immune under section 230.” Roommates.com

521 F.3d at 1170–71.

To be clear—throughout this proceeding Ms. Jones’ counsel has argued ad

nauseum that Mr. Richie cannot invoke CDA immunity because he engages in

editorial conduct such as selecting what posts to publish, choosing which posts to

remove, choosing which posts not to remove, editing content submitted by users,

adding his own commentary, etc. By picking and choosing content submitted by

users, Plaintiff’s counsel “feels” that Mr. Richie is acting like an editor or publisher

and thus he must be accountable for everything appearing on www.thedirty.com.

In an off-line context (or in an online context prior to 1996), this argument

would entirely correct—“websites are treated differently than ‘newspapers, magazines

or television and radio stations, all of which may be held liable for publishing obscene

or defamatory material written or prepared by others.’” S.C., 2012 WL 3335284, *2.

However, since the CDA was adopted in 1996, websites are no longer subject to the

same liability standards as newspapers or magazines. For that reason, Mr. Richie’s

editorial practices have no impact on his immunity claim. On the contrary, these

practices require a finding that Mr. Richie is protected by the CDA even if his




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imperfect screening results in offensive or defamatory content being published on the

site; “In some sort of tacit quid pro quo arrangement with the service provider

community, Congress has conferred immunity from tort liability as an incentive to

Internet service providers to self-police the Internet for obscenity and other offensive

material, even where the self-policing is unsuccessful or not even attempted.”

Blumenthal v. Drudge, 992 F.Supp. 44, 52 (D.D.C. 1998) (empahsis added).

Thus, Plaintiff simply misses the point when she mistakenly argues that Mr.

Richie’s role in screening, reviewing, and removing of content weighs against his

claim to CDA immunity. On the contrary, the opposite is true—the cases are 100%

unanimous without any exceptions—this sort of editorial conduct is absolutely

protected under the CDA:

Congress enacted § 230 to remove the disincentives to self-regulation

created by the [Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL

323710 (N.Y.Sup.Ct. May 24, 1995)] decision. Under that court’s

holding, computer service providers who regulated the dissemination of

offensive material on their services risked subjecting themselves to

liability, because such regulation cast the service provider in the role of a

publisher. Fearing that the specter of liability would therefore deter

service providers from blocking and screening offensive material,Congress enacted § 230's broad immunity “to remove disincentives for

the development and utilization of blocking and filtering technologies that

empower parents to restrict their children's access to objectionable or

inappropriate online material.” 47 U.S.C. § 230(b)(4). In line with this

purpose, § 230 forbids the imposition of publisher liability on a service

provider for the exercise of its editorial and self-regulatory functions.

Zeran, 129 F.3d at 331 (empahsis added). The CDA was enacted to specifically

encourage this sort of editorial conduct, not to punish it (as Ms. Jones seeks to do).

Thus, immunity is never lessened by a website owner’s decision to screen or

“moderate” content. On the contrary, the core purpose of the CDA was to permit

website owners to actively review and monitor third party content so they might block

or remove at least some blatantly inappropriate content without fear of being sued for

anything that remained: “a central purpose of the Act was to protect from liability




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service providers and users who take some affirmative steps to edit the material

posted. Also, the exclusion of ‘publisher’ liability necessarily precludes liability for

exercising the usual prerogative of publishers to choose among proffered material and

to edit the material published ... .” Batzel v. Smith, 333 F.3d 1018, 1031 (9

th

Cir.

2003). For that reason, courts are unanimous in holding that a website owner can

never lose immunity by engaging in “editorial” conduct like picking which posts to

publish and which to reject. See Green v. America Online, Inc., 318 F.3d 465, 471

(3rd

Cir. 2003) (holding plaintiff’s claims were barred by the CDA because plaintiff

“thus attempts to hold AOL liable for decisions relating to the monitoring, screening,

and deletion of content from its network - actions quintessentially related to a

publisher’s role. Section 230 ‘specifically proscribes liability’ in such

circumstances.”) (empahsis added) (quoting Zeran, supra).

For the same reasons, the CDA also protects a website owner even if he refuses

remove material upon notice or demand; “immunity is not vitiated because a

defendant fails to take action despite notice of the problematic content.” Black v.

Google, 2010 WL 3222147, *3 (N.D.Cal. 2010) (citing Universal Commc'ns Sys., Inc.

v. Lycos, Inc., 478 F.3d 413, 420 (1st

Cir. 2007) (“It is, by now, well established that

notice of the unlawful nature of the information provided is not enough to make it the

service provider’s own speech.”); Zeran, 129 F.3d at 333 (“Liability upon notice

would defeat the dual purposes advanced by § 230 of the CDA.”)); see also Global

Royalties, 544 F.Supp.2d at 932 (finding owner of www.ripoffreport.com remained

protected by the CDA even after refusing to remove allegedly defamatory posts);

Giordano v. Romeo, 76 So.3d 1100 (Fla. 3d Dist. 2011) (same); Shrader v. Biddinger ,

2012 WL 97632, *8 (D.Colo. 2012) (finding CDA applied even though “defendants

did not remove the posting when they were alerted ... to plaintiff’s assertion that the

posting was defamatory. The court agrees with the ... defendants that such conduct as

asserted is precisely the type of conduct that is protected by the CDA.”) (empahsis

added); Mmubango v. Google, Inc., 2013 WL 664231, *3 (E.D.Pa. 2013) (holding




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Google entitled to CDA immunity even though it refused to remove defamatory

content; “Google cannot be held liable for state law defamation on the facts that it

‘decided’ to publish a third party’s statements, which has been identified by the Third

Circuit as a traditional editorial function. In the same vein, Google cannot be held

liable for failing to withdraw this statement once it has been published.”)

As this authority shows, this Court’s decision to deny CDA immunity because

of the “manner” in which Mr. Richie moderates, reviews and screens content was

fundamentally wrong in every respect. Denying immunity on this basis is equivalent

to repealing the CDA entirely because it has the effect of punishing Mr. Richie for

doing exactly what Congress encouraged website owners to do.

iii. Mr. Richie’s Own Comments Are Non-Actionable

The sole remaining difference between S.C. and this case was Ms. Jones’

previous argument that Mr. Richie’s own words (“Why are all high school teachers

freaks in the sack?”) were defamatory. In order to gain a tactical advantage by

preventing Defendants from relying on text messages which could show this comment

was true, Ms. Jones has withdrawn that part of her claim. As such, the facts of this

case are now identical to the facts in S.C.. To reiterate that court’s holding:

[T]he Court finds that the Defendants did not materially contribute to

the development of the Church Girl Post. Most importantly, it is

undisputed that the Church Girl Post was unilaterally drafted and

submitted by a third-party. The Defendants have further established

that (a) they did nothing to induce a post specifically directed at the

Plaintiff; (b) Richie does not personally know and has never

knowingly spoken to the author of the Church Girl Post; (c) Richie

had never heard of the Plaintiff prior to commencement of thisaction; and (d) the Defendants did not add to or otherwise alter the

substance of the post. In addition, the Website does not require the

posting of actionable material, and it does not pay for such

information. To the contrary, users of the Website may submit posts

on any topic.

S.C., 2012 WL 3335284, *3.




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All of these same facts are present here. For that reason, this Court should find

that Defendants are immune under the CDA; “In sum, a third party unilaterally

created and submitted the [post about the plaintiff] without specific instructions or

requests from the Defendants to do so. This is precisely the type of situation that

warrants CDA immunity.” S.C., 2012 WL 3335284, *4 (citing Doe v. MySpace, Inc.,

528 F.3d 413, 419 (5th

Cir. 2008) (“[S]o long as a third party willingly provides the

essential published content, the interactive service provider receives full immunity

regardless of the specific editing or selection process.”)

c. If Summary Judgment Is Denied, Permission To Immediately

Appeal Under 28 U.S.C. § 1292(b) Should Be Granted

If this Court decides not to enter summary judgment in favor of Defendants,

then is should issue an order finding that the matter is appropriate for an immediate

interlocutory appeal pursuant to 28 U.S.C. § 1292(b). To grant such relief, four

elements must be established: “(1) the question involved must be one of ‘law’; (2) it

must be ‘controlling’; (3) there must be substantial ground for ‘difference of opinion’

about it; and (4) an immediate appeal must ‘materially advance the ultimate

termination of the litigation.’” Cardwell v. Chesapeake & Ohio Railway Co., 504

F.2d 444, 446 (6th

Cir. 1974).

Each of these factors are clearly present here. As has been previously

explained, the application of the CDA is a question of law for the Court and the law is

clearly controlling. Although Defendants believe the CDA is so clear as to leave no

room for any difference of opinion, this Court rejected that conclusion thereby

showing that there apparently is some basis for reasonable minds to differ. Of course,

a resolution of the CDA issue would clearly advance the ultimate termination of the

litigation.

On these points, it is important to note the relief Defendants request here is

essentially identical to that discussed in Hill v. StubHub, Inc, 727 S.E.2d 550




18

(N.C.App. 2012). In that case, the defendant ran a website that permitted users to

buy and sell tickets for concerts and sporting events. The website owner was sued for

violating a local “anti-scalping” law, but it moved for summary judgment arguing

that it was entitled to immunity under the CDA. The trial court rejected that

argument and found the defendant lost CDA immunity by designing and operating its

website in a manner that assisted third parties in violating the anti-scalping law. This

reasoning was closely analogous to this Court’s view of the CDA.

Although orders denying summary judgment are generally interlocutory and

thus non-appealable, the North Carolina court found that the interpretation of the

CDA raised important questions of controlling law which were matter of first

impression for that state. As such, after it denied defendant’s motion for summary

judgment immunity, the court allowed the defendant to immediately appeal.

Notably, after reviewing the law and the trial court’s interpretation of the

CDA, the appeals court found that the trial court’s decision was wrong. It therefore

reversed and remanded with an instruction to enter summary judgment in favor of the

website operator. See Hill , 727 S.E.2d at 564. Defendants are confident this same

result would occur here.

By the same logic, if this Court refuses to reconsider its denial of CDA

immunity Defendants must be allowed to seek immediate appellate review. As noted

at the start of this motion, in more than 300 published CDA cases, this is the only

case ever to result in a website owner being taken to trial for “publishing” content

posted by a third party. Having already been unfairly burdened with the costs of

defending one trial, fairness mandates that Defendants should not suffer through a

second trial, the outcome of which will likely be no different than the first. Such a

result would be an affront to the clear command of Congress which sought to prevent

exactly this result; “Section 230 therefore sought to prevent lawsuits from shutting

down websites and other services on the Internet.” Batzel , 333 F.3d at 1028.




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For these reasons, if the Court is unwilling to reconsider its denial of CDA

immunity, it should issue an order finding that the matter is appropriate for an

immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

III. CONCLUSION

For the reasons stated above, Defendants’ motion should be granted and

summary judgment should be entered in their favor.

RESPECTFULLY SUBMITTED: March 7, 2013.

NIK LAMAS-RICHIEDIRTY WORLD, LLC

/s/ David S. GingrasOf Counsel

David S. Gingras, Esquire (admitted pro hac vice)

GINGRAS LAW OFFICE, PLLC4025 E. Chandler Blvd., #70-A26

Phoenix, AZ 85048480.668.3623

And

Alexander C. Ward, Esquire Alexis B. Mattingly, Esquire

HUDDLESTON BOLEN LLP HUDDLESTON BOLEN LLP

855 Central Avenue, Suite 301 611 Third AvenueP.O. Box 770 P.O. Box 2185

Ashland, KY 41105 Huntington, WV 25722-2185

606.329.8771 304.529.6181

Counsel for Defendants

Nik Lamas-Richie and Dirty World, LLC




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CERTIFICATE OF SERVICE

I hereby certify that on March 7, 2013, I electronically filed the foregoing with the Clerk of

the Court by using the CM/ECF system, which will send a notice of electronic filing to all

counsel of record.

/s/ David S. GingrasCounsel for Defendants,

Dirty World, LLC and

Nik Lamas-Richie


sarah jones v. dirty world - renewed motion for summary judgment

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