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Ron Wyden at a September 2012 hearing of the Senate Energy Committee
This guy helped keep the Internet free. Even for the bad stuff.
If it weren't for Section 230 of the Communications Decency Act, this site would not be what it is today. Introduced in the House by then-members Ron Wyden (D-OR) and Christopher Cox (R-CA), it says that the owner of a website isn't considered the "publisher" of user-generated content for legal purposes, except in the areas of federal criminal liability and intellectual property law.  

The intent at the time was to free up website owners to clean out pornography from their sites without having to worry whether taking on such editorial responsibilities made them the publishers of everything else on the site. In practice, what it means (among other things) is that whenever one of y'all says something potentially defamatory on this site, that's your problem, not ours, and we don't need to spend our hours policing everything pre-publication or fretting about whether to take it down once it's up. That's on you, except for content for which we are "responsible, in whole or in part, for [its] creation or development."

Well, for us here at Daily Kos, that's pretty awesome, but much less so for former Cincinnati Bengals cheerleader Sarah Jones, who was targeted by the tabloid site with some really vile stuff, sued and won, and today had a six-figure judgment in her favor reversed. Here's one example of what was submitted by the site's users about Jones, and published by the owners:

THE DIRTY ARMY: Nik, this is Sara J, Cincinnati Bengal Cheerleader. She’s been spotted around town lately with the infamous Shayne Graham. She has also slept with every other Bengal Football player. This girl is a teacher too!! You would think with Graham’s paycheck he could attract something a little easier on the eyes.
She claimed that such posts humiliated her, undermined her position as an educator, and damaged her membership in the Cincinnati BenGals and her personal life. She sued the site and won on the district court level, with the jury awarding her $38,000 in compensatory damages and $300,000 in punitive damages. Today, she lost that victory before the Sixth Circuit because TheDirty was not deemed to have sufficiently "developed" the information it chose to post.

Basically, this is the court's reasoning: It's one thing for a website to specifically and directly solicit "bad stuff," like a roommate-finding website that required users to provide their race, religion and gender then allowed them to search by each factor, enabling discrimination. It's another to hold a site liable for a catch-all solicitation, even when it got to pick and choose what actually was published, not fact-checking at all but only removing "nudity, obscenity, threats of violence, profanity, and racial slurs." And as the court explained, allowing websites to be sued merely for what they encouraged would go too far:

An encouragement test would inflate the meaning of “development” to the point of eclipsing the immunity from publisher-liability that Congress established. Many websites not only allow but also actively invite and encourage users to post particular types of content. Some of this content will be unwelcome to others—e.g., unfavorable reviews of consumer products and services, allegations of price gouging, complaints of fraud on consumers, reports of bed bugs, collections of cease-and-desist notices relating to online speech. And much of this content is commented upon by the website operators who make the forum available. Indeed, much of it is “adopted” by website operators, gathered into reports, and republished online. Under an encouragement test of development, these websites would lose the immunity under the CDA and be subject to hecklers’ suits aimed at the publisher....Accordingly, other courts have declined to hold that websites were not entitled to the immunity furnished by the CDA because they selected and edited content for display, thereby encouraging the posting of similar content.
What's more, as Prof. Eugene Volokh notes, the panel makes clear that decisions on Section 230 immunity are subject to interlocutory appeal—in other words, TheDirty could have appealed the immunity decision before trial, and not only thereafter.

Jones can still subpoena identifying user information from the site and sue the people who actually wrote those things; she cannot, however, sue the site or its owner. Her attorney has promised to appeal.

Originally posted to Adam B on Mon Jun 16, 2014 at 11:28 AM PDT.

Also republished by Daily Kos.

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