Section 230 Doesn’t Apply to Sending Non-Consensual Pornography by Postal Mail–Doe v. Spencer

Spencer’s wife had an extra-marital affair with Doe. Doe sent “photographs and screen shots of sexually explicit images” to the wife. Spencer, the husband, came into possession of these materials via unspecified means. He assembled various collages of the images and sent copies by postal mail to Doe and “his ex-wife, his adult child, several of his neighbors, and his place of business.” Doe sued Spencer for VAWRA, IIED, negligence, and public disclosure of private facts. Spencer (proceeding pro se) filed a motion to dismiss on several grounds, including Section 230. The court denied the motion.

With respect to Section 230, Spencer said “I would again here refer to the above Laws in regards to ‘Copies’ and that the Alleged explicit material was created by Plaintiff himself it was posted to an interactive site…” The court responds simply: “The Court is not persuaded that Section 230(c) of the Communications Decency Act has any application to this case.”

Indeed, it does not. Section 230 never applies to the dissemination of offline content, including physical items sent through the postal mail. The statutory definitions say that the immunity applies only with respect to “information provided through the Internet or any other interactive computer service.” By necessity, this excludes offline disseminations.

While this opinion isn’t a surprising outcome, it reinforces three points of note. First, though non-consensual pornography (NCP) is often characterized as an Internet phenomenon, not all NCP is distributed online. Indeed, in our 2018 survey of NCP court cases, we found six cases involving offline distribution and additional cases with threatened offline distribution (including one dating back to 1984, well before the Internet enabled the distribution of images or videos), and several cases were very similar to this case (postal mail to relatives, friends, and business contacts). Second, Doe made a claim under VAWRA–the “Violence Against Women Reauthorization Act of 2022″–and that bill’s title reflects the fact that NCP victims are overwhelmingly women. However, men are victims too, as in this case. In our 2018 study, we found seven cases involving male victims. Third, though Section 230 sometimes limits who can be sued by NCP victims, there is always at least one defendant who cannot claim Section 230 immunity; and, as in this case, sometimes no one can claim Section 230 at all.

Case Citation: Doe v. Spencer, 2024 WL 915554 (M.D. Tenn. May 4, 2024)

UPDATE: Doe v. Williams, 2024 WL 2805642 (S.D. Miss. May 31, 2024): “From § 230(c)’s text, it is not apparent that it would apply to a § 6851(b) claim”