How the Sixth Circuit Took the Pep Out of a Former Cincinnati Ben-Gal Cheerleader

Erin E. Rhinehart

The Sixth Circuit recently considered whether the Communications Decency Act of 1996 (CDA) bars state-law defamation claims in Jones v. Dirty World Entertainment Recordings, LLC, Case No. 13-5946 (6th Cir. June 16, 2014). The court answered in the affirmative and adopted the “material contribution” test to evaluate the scope of immunity conferred by section 230 of the CDA.

Sarah Jones, a former teacher and Cincinnati Ben-Gal cheerleader, filed suit in the US District Court for the Eastern District of Kentucky against defendants-appellants, Nik Richie and Dirty World, LLC. Jones was the subject of several anonymous posts on a website, www.TheDirty.com, which is operated by the defendants-appellants. The website, which the court characterized as “a user-generated tabloid primarily targeting non-public figures,” enables users to post anonymous comments, photos, and video that Richie then selects and publishes with his own editorial comments.

Jones alleged state court claims of defamation, libel per se, false light, and intentional infliction of emotional distress. Richie and Dirty World argued that section 230(c)(1) of the CDA barred Jones’s claims.

The district court rejected the defendants’ arguments and denied leave to file an interlocutory appeal to resolve the issue. The case went to trial (twice), and a jury returned a verdict in favor of Jones—awarding more than $300,000 in damages. Richie and Dirty World appealed.

The Sixth Circuit found that the judgment in favor of Jones “cannot stand.” In determining the breadth of the immunity provided by section 230, the appellate court took a Goldilocks approach—cautious not to adopt an overly inclusive or overly exclusive test. The court focused on the statutory term “development” in section 230(f)(3). Disagreeing with the district court’s interpretation, the Sixth Circuit joined the Fourth and Tenth Circuits by adopting the “material contribution” test, which requires a defendant do more than merely display the allegedly illegal content.

The court found that the CDA bars Jones’s defamation claims. Specifically, the court relied on the facts that the defendants did not author the statements at issue, require users to post illegal or actionable content as a condition of use, or compensate users for the submission of unlawful content. The court also refused to find that the defendants’ decision not to remove the posts does not qualify as material contribution.

In fact, the court found that Richie’s comment on one of the posts, “Why are all high school teachers freaks in the sack,” did not materially contribute to the defamatory content. The court explained that, while the comment was “absurd” and “ludicrous,” “it would break the concepts of responsibility and material contribution to hold Richie responsible for the defamatory content of speech because he later comments on that speech.” Of course, it is important to note that, while Richie was undoubtedly the “information content provider” for his own comment, Jones never alleged that Richie’s comments were defamatory; nor did the district court find that Richie’s comments were themselves tortious.

While Jones is not likely to be grabbing her pom-poms to cheer on this decision, Dirty World is important because it preserves the freedoms conferred upon online publishers by the CDA.

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Erin E. Rhinehart

Erin E. Rhinehart is a partner with the commercial litigation firm of Faruki Ireland & Cox P.L.L. in Dayton, Ohio.