Sixth Circuit's 'Dirty' Decision Sends a Chill

Let's start with the following premise: thedirty.com is a tasteless website. In addition to a bit of celebrity gossip and paparazzi-type pictures, the site also invites anyone to post pictures – often revealing, embarrassing, or insulting – of others for comment by users and, sometimes, the site's proprietor.

The site has been sued a number of times for postings making scurrilous allegations. One of these lawsuits was brought by Sarah Jones, a former Cincinnati Bengals cheerleader and high school teacher, who sued over postings (now removed)on thedirty.com which accused her of having a sexual disease and claimed that she "has slept with every ... Cincinnati Bengal football player." (Jones now has bigger problems: she was arrested in March on charges of sleeping with one of her students. She has pleaded not guilty.)

Jonesoriginally filed the suit anonymously. She mistakenly named thedirt.com – rather than thedirty.com – as the defendant, leading to a default $11 million verdict. 

In response to the lawsuit, the site invoked section 230 of the Communications Decency Act,47 U.S.C. § 230, which provides that operators of "interactive computerservices," including web sites, cannot be held liable for material contributed (posted) by someone other than the site operator.  As thedirty.com explains in its FAQ:

What this law says is that if you are the operator of an “interactive website” (meaning a site that allows users to post comments), you cannotbe held liable for anything that is posted on the site by users, including stories written by users and emailed to the site. If Nik [Nik Richie, the man behind the thedirty.com site] writes something himself and posts it, he is responsible for the accuracy of his words. However, as to everything else posted by users, Nik is not liable for what they say.

This is a bit of an overstatement. Section 230 does not make website operators immune from all claims: For example, they can still be sued for copyright infringement. But section 230 has become an effective way for websites to obtain early dismissals of most lawsuits against them.

But the federal judge considering Jones' suit against the site declined to dismiss the case, rejecting thedirty.com's jurisdictional and section 230 arguments. He later denied thedirty.com's motion for summary judgment on the basis of section 230, finding that the thedirty.com site actively encouraged tortious conduct by users.

This Court holds that, under the principles of Roommates.com [Fair Housing Council of San Fernando Valley v. Roommates.com] and Accusearch [Federal Trade Commission v. Accusearch],the defendants here, through the activities of defendant Richie, “specifically encourage development of what is offensive about the content” of “the dirty.com” web site.

Jones v. Dirty World Entertainment Recordings, Inc., Civil No. 09-219-WOB, --- F.Supp.2d ----, 2012 WL 70426, 40 Media L. Rep. 1153 (E.D. Ky. Jan. 10, 2012).

The Sixth Circuit Court of Appeals dismissed the web site's appeal of the summary judgment ruling,allowing the trial judge's decision to stand. The appeals court's dismissal was based on its finding that the trial court's decision was not a final, appealable order.

Although the defendants have invoked their alleged right not to stand trial under the CDA, theyhave failed to demonstrate how a substantial public interest will be imperiled by delaying their appeal until after the district court entersa final order.

Jones v. Dirty World Entertainment Recordings, Inc., No. 12-5133 (6th Cir. May 9, 2012).

But the Sixth Circuit's ruling is contrary to other courts' decisions stating that, in a First Amendment context, the mere threat of prolonged litigation can have a "chilling effect." The Supreme Court recognized this in its holding in Anderson v. Liberty Libby,where it held that the "clear and convincing" "actual malice" standard should inform summary judgment rulings in public figure and public concern defamation cases.

Our inquiry is whether the Court of Appeals erred in holding that the he