You’re being far too polite to the court here. The CDA analysis in this case wasn’t just wrong, it was embarrassingly erroneous to the point that I think the judge should sanction herself (or whatever law clerk wrote this opinion).

For instance, in her “analysis”, the court relied on Jones v. Dirty World Entm’t Recordings, LLC, 840 F.Supp.2d 1008 (E.D.Ky. 2012). Of course, as everyone knows, this was the lower court’s decision which was reversed in its entirety by the 6th Circuit. See Jones v. Dirty World Entm’t Recordings, LLC, 755 F.3d 398 (6th Cir. 2014). See also: https://blog.ericgoldman.org/archives/2014/07/want-to-encourage-gossipy-content-online-go-for-it-jones-v-thedirty-forbes-cross-post.htm

Okay, so the Utah court mistakenly cited one case that was later reversed….oops, but no big deal, right?

Wrong. The Utah court also cited Carafano v. Metrosplash, Inc., 207 F.Supp.2d 1055 (C.D.Cal. 2002). Of course, like Jones, Carafano was the subject of a subsequent Ninth Circuit decision, Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003), which stands for exactly the opposite rule than the one cited by the Utah district court. Strike two? Do we really need to wait for the next pitch?

What is going on here? I have been around long enough to accept the fact that some judges refuse to follow the CDA because they simply don’t agree with it. But this is something else. If a lawyer engaged in this same conduct — citing a case that has been overruled and/or materially misstating the holding of case — they would be subject to discipline, and rightly so. Yet a federal judge can do the same thing without any consequence?

Shaking my head…