Judge Friedman Grants Summary Judgment to AOL in Defamation Case

(April 24, 1998)  U.S. District Court Judge Paul Friedman granted summary judgment to America Online in a defamation suit arising out of statements made by one of AOL's content providers.   The basis of the ruling was 230 of the Telecommunications Act of 1996, which immunizes interactive computer services from liability for the actions of their content providers.  The Plaintiffs promise to appeal.

Related Page: Complete Text of Judge Friedman's Opinion.

A ruling against AOL would have had major consequences for the Internet.  230 is what protects online services, and anyone who provides bulletin boards, guest books, chat rooms, or other interactive services, from lawsuits based on what other people write.  230(c)(1) says:

"No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Judge Friedman wrote that this immunity clause means that Internet services are treated differently from the old line media.

"Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written or prepared by others.  ... it opted not to hold interactive computer services liable for their failure to edit, withhold or restrict access to offensive material disseminated through their medium."

Related Page: Complete Text of Section 230.

The Plaintiffs, Sidney and Jacqueline Blumenthal, allege that they were defamed by a report written by Matt Drudge.  This story was disseminated through an America Online area (keyword: Drudge), as well as through the Drudge Report website.  AOL pays Drudge for his material.  While the Judge appears very negatively disposed towards Drudge, he granted America Online's Motion for Summary Judgment, and dismissed America Online from the case.  The case against Drudge will now proceed to discovery, and then trial.

Related Story: Judge Hears Pretrial Motions in Blumenthal v. Drudge, AOL, 3/11/98.

After the Court ruled in favor of AOL, a company spokesman had this to say:

"Congress adopted Section 230 of the Telecommunications Act of 1996 in order to encourage a diversity of speech on the Internet.  The Judge's dismissal of the case is consistent with Congress' intent and with previous court decisions."

The Blumenthals' lead attorney, William McDaniel, said Thursday that they plan to file an interlocutory appeal of the Court's dismissal of AOL.

"The Blumenthals plan to seek leave to appeal immediately the decision regarding AOL.  AOL and other service providers ought not be allowed to aggressively promote libelous and hurtful gossip, rumor, and innuendo, and then run away when those who are hurt seek recompense."

Related Cases
Zeran v. America Online, Inc., 958 F. Supp. 1124 (E.D.Va. 1997), affirmed, 129 F.2d 327 (4th Cir. 1997).  Petition for Writ of Certiorari (No.   97-1488) pending.  Court applied 230(c)(1) in holding AOL not liable for defamatory statement contained in postings in various AOL bulletin boards by an AOL subscriber. See, Copy of Court of Appeals, 4th Circuit, Opinion. and Summary of Zeran v. AOL.

Doe v. America Online, Inc., Case No. CL 97-631 AE; Decision: 1997 WL 374223 (Fla. Cir. Ct. June 26, 1997).  The Court applied 230(c)(1) in holding that AOL was not liable for statements made by an AOL subscriber in an AOL chatroom.  Plaintiff has appealed.  See, copy of opinion.  

While other courts have held that 230 immunized AOL from suits for statements in bulletin boards and chat rooms, this was the first decision in a case where the online service paid the content provider to make his material available, and held some editorial control over it.  However, Judge Friedman rejected any distinction between distributors and publishers of information.  "Congress made no distinction between publishers and distributors in providing immunity from liability." (page 16)

The online service immunity clause, 230(c)(1), has now withstood several legal challenges.  In contrast, other parts of  230 have not fared so well.  The ban on indecency on the Internet was held unconstitutional by the Supreme Court in Reno v. ACLU.  Meanwhile, the blocking software immunity clause, 230(c)(2), has only been construed by one Court.   Several weeks ago the judge in that case refused to dismiss a case against a public library which installed blocking software on its computers.  See, Loudoun Library Case Summary, and Court Opinion.

Judge Friedman Knocks AOL and the Congress

Judge Friedman made it clear that he dismissed AOL only because he had to under 230 of the Telecommunications Act of 1996.  Had he not been bound by the statute, he would have ruled for the Blumenthals.  Moreover, he criticized the policy basis for 230.

"If it were writing on a clean slate, this Court would agree with plaintiffs.  AOL has certain editorial rights with respect to the content provided by Drudge and disseminated by AOL, including the right to require changes in content and to remove it; and it has affirmatively promoted Drudge as a new source of unverified instant gossip on AOL.  Yet it takes no responsibility for any damage he may cause. AOL is not a passive conduit like the telephone company, a common carrier with no control and therefore no responsibility for what is said over the telephone wires.  Because it has the right to exercise editorial control over those with whom it contracts and whose words it disseminates, it would seem only fair to hold AOL to the liability standards applied to a publisher or, at least, like a book store owner or library, to the liability standards applied to a distributor.  But Congress has made a different policy choice by providing immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others."  (page 14)

Judge Friedman even questioned the Congress' motive for passing 230(c)(1).

"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."  (page 14)

Paul Friedman was put on the court by Bill Clinton.  The plaintiff, Sidney Blumenthal, is a top political assistant to Bill Clinton.  Matt Drudge was the first journalist to publish a news report about Bill Clinton and Monica Lewinsky.  See also, Friedman Biography.

The AOL Team

AOL has been represented in these cases by Patrick Joseph Carome of the Washington DC law firm of Wilmer Cutler & Pickering.  He has been assisted by John Payton, Lawrence Kasten, and Sanir Jain.  AOL's in house counsel on these cases are George Vradenburg III and Randall J. Boe.