Online Message Board Protected by 47 USC 230–DiMeo v. Max

By Eric Goldman

DiMeo v. Max, No. 06-1544 (E.D. Pa. May 26, 2006)

In my world, it’s not a party until someone spills something. But in Anthony DiMeo’s world, it appears that it’s not a party until someone brings a lawsuit.

Tucker Max runs a website that catalogues his misadventures. As he introduces himself, “My name is Tucker Max, and I am an asshole. I get excessively drunk at inappropriate times, disregard social norms, indulge every whim, ignore the consequences of my actions, mock idiots and posers, sleep with more women than is safe or reasonable, and just generally act like a raging dickhead.” His Wikipedia entry gives more color.

His website contains an associated message board. Some message board threads discussed a New Year’s Eve party organized by DiMeo. Apparently, partygoers were upset that the event ran out of alcohol early, which sparked a near-riot. The antipathy spilled over to Max’s message board, where a variety of users made some harsh statements about DiMeo.

In response, DiMeo sued Max for defamation and under 47 USC 223(a)(1)(3), the controversial criminal statue prohibiting anonymous online harassment. But DiMeo didn’t allege that Max was the author of the postings in question, so there’s no defamation claim to litigate. 47 USC 230 applies, and the judge grants Max’s motion to dismiss.

To get there, the court says::

* Max was both a “provider” and “user” of an interactive computer service–provider because he offers access to multiple servers; user because he is connected to the Internet. This is a broad interpretation of 230′s coverage, but it’s consistent with precedent.

* The posts were provided by another information content provider. DiMeo never alleged that Max wrote them. Instead, DiMeo tries the tired and futile argument that Max exercised such a high degree of editorial control that he “developed” the postings. The court rightly points out that this is exactly what 47 USC 230 was designed to protect.

In a footnote, the court makes an interesting claim that the defamation claim might independently fail because, in context, the messages could not be considered serious statements (i.e., the postings are from usernames like “Jerkoff” and “Drunken DJ”).

The judge also denied a motion to add a claim for intentional infliction of emotional distress, saying that it too would be barred by 47 USC 230.

The 47 USC 223(a)(1)(3) claim fails because there is no private right of action, Max didn’t act anonymously, and the statute excludes liability of interactive computer services (which the court had previously found described Max’s website).

Altogether, there’s not much new legal ground broken here. This was a case that, based on the alleged facts, was doomed at the outset, and the judge rightly cleaned its docket early rather than let this case consume additional time and money. While I wouldn’t call Max’s website a blog (at least, not in the classic sense), the reasoning applies 100% to comments to blog posts, so this case does reinforce the likelihood that courts will protect blog operators from liability for their users’ comments.

For reasons that he explains in his unique way, Tucker Max touts this opinion as “Best. Legal. Decision. Ever.”

Detailed background on this lawsuit from MyElectionAnalysis and the Philadelphia Inquirer blog.

A side note of interest: the presiding judge was Judge Dalzell, who in 1996 also wrote a colorful opinion in the ACLU v. Reno case striking down some of the criminal portions of the Communications Decency Act.

(Thanks to my former student Matt Goeden for calling my attention to the case).