Judge Balks At Section 230 Protection For Email Forwarding–Samsel v. DeSoto County School District
Today’s blog post covers a very long opinion (70 pages!) involving a school principal effectively firing a successful football coach in football-crazed northern Mississippi. If you want a taste of how much angst that can create, try to wade through this beast.
I’m going to focus on only one sliver of this dispute. The school district superintendent (Kuykendall) sent an email to many folks in the school district. The superintendent’s email forwarded an email from another school teacher (Abernathy) that contained allegedly defamatory statements about the coach, along with a cover email where the superintendent said he agreed with the forwarded email “100%.” Among other litigation, the coach sued the superintendent for defamation based on the forwarded email. The superintendent defended on several grounds, including Section 230.
Judge Mills calls the Section 230 issue “exceedingly difficult,” and perhaps for good reason. The superintendent doesn’t look like a website operator, so he’s eligible for Section 230 protection only as an ICS “user” and the user prong of Section 230 has always been a little murky. The court acknowledges the Supermedia case but, perhaps surprisingly, does not discuss Barrett v. Rosenthal even though it’s the leading case interpreting the “user” prong of Section 230 and was also an email forwarding case.
It’s clear that “as a general matter, one who forwards an email written by another which contains defamatory statements enjoys immunity under the CDA” (with cites to Mitan, Phan and Novins). Yet, the judge can’t believe that Section 230 covers email forwarding (emphasis added):
the act of logging onto a computer (or smart phone) and sending an email is a trivial one, in which, this court believes, most people in this country engage on an almost daily basis. One the other hand, the importance of being able to vindicate one’s reputation through the defamation cause of action has ancient roots in the law. Why the simple act of forwarding an email, even if it is known to be false and defamatory, should trump this hallowed right is not at all clear to this court. This court suspects that few individuals are aware of the authority holding that blanket immunity exists for the forwarding of emails; indeed, its own first impression of defendants’ argument was that it simply could not be the law. And yet it does appear to be the law, at least as the general rule applied by several trial courts.
The judge then explains how it could be easy to abuse Section 230’s immunity for email forwarding (emphasis added):
It seems likely that, if upheld as the law by appellate courts, more and more individuals will become aware of the broad immunity offered by the CDA and seek to abuse it. It should not be difficult for them to find ways to do so. It strikes this court that, under a broad interpretation of the CDA, an individual wishing to defame another with impunity would not even require the assistance of a third party to do so. To the contrary, this court takes judicial notice of the fact that the internet offers innumerable means by which one may make anonymous posts and emails, including (but certainly not limited to) throw-away email accounts, anonymous message boards, proxy servers, and internet cafes. Considering these tools, it should not be difficult for an individual possessing even minimal tech saavy to make an anonymous post or email defaming another and then forward his own post or email to a targeted audience, under the guise of a “look what I read on the internet” email. Indeed, it is unclear why an intelligent defamer would operate in any other manner, and it suspects that more and more individuals will come to realize this. Perhaps some protections exist in this regard that this court is overlooking, and, if so, then Kuykendall may bring it to its attention in his trial briefing. Under this court’s current understanding of these issues, however, a broad application of the CDA seems likely to negate much of defamation law which has existed for centuries.
What’s the judge missing? I can think of at least 4 things. First, many defamation cases do not involve an intentional smear campaign. Second, it’s not like this quirk of Section 230 jurisprudence is obscure or has been a closely-kept secret. Barrett v. Rosenthal, involving virtually identical facts, was a high-profile California Supreme Court case from over a decade ago, and the sky hasn’t (yet) fallen as the judge predicts. Third, the judge assumes that recipients would give full (or any) credit to anonymous content, but that’s not always the case. Finally, and most importantly, the judge assumes that it’s a trivial matter to keep the anonymous email truly anonymous, but we’ve seen over and over again that preserving anonymity online isn’t so easy in practice–and if the ruse is exposed, the perpetrator will face far more serious legal liability than defamation. Please leave any other suggestions of what the judge is missing in the comments. See Felix Wu’s article for more discussion about his views on the limits of Section 230’s applicability to email forwarding cases.
So the judge seems to be stuck. Section 230 clearly protects email forwarding, but it leads to a result he considers illogical. He “solves” this dilemma by trying to craft an exception for this case:
Kuykendall was in a position to have unique knowledge about the genuine reasons for his termination. As such, this court believes that there is a potentially strong argument that, when Kuykendall forwarded Abernathy’s email to virtually the entire school district, he was adding defamatory content beyond that asserted by the original email. True enough, Kuykendall merely forwarded words written by Abernathy, but, without question, the defamatory impact of those words was far greater when sent by a superintendent who was intimately involved in the decision to fire plaintiff.
In light of the foregoing, this court believes that a jury could reasonably find that Kuykendall’s email essentially endorsed and confirmed the veracity of the accusations, in the eyes of the reader. As noted previously, Kuykendall expressed “100%” agreement with Dodd’s email, which itself vouched for Abernathy’s credibility. In his deposition, Abernathy testified that his email was simply referencing “gossip” he had heard at the school, but, when forwarded by Kuykendall, this court believes that this “gossip” became much more than that. [Abernathy depo. at 11] Under these circumstances, a jury could reasonably find that Kuykendall implicitly added defamatory content to Abernathy’s email and that he essentially became a publisher of defamatory material himself, within the meaning of the CDA. Moreover, even assuming that absolute protection exists in the virtual sphere in this regard, the fact remains that Kuykendall instructed his principals to “tell your staff they have permission to respond at will.” A jury could reasonably find that these words from the superintendent were calculated to have an impact well beyond the virtual realm dealt with by the CDA. Indeed, as Kuykendall’s own words and instructions to his employees, they would not enjoy the protection offered to those who merely forward emails written by others.
Unfortunately, this workaround to Section 230’s immunity doesn’t make any sense because the judge conflates the communicative meaning of “100%” agreement with the mere editorial act of forwarding a third party email. The extra “meaning” the judge attributes to the superintendent’s forwarding is actually attributable to the editorial function in deciding what content was fit to share with an online audience. (I’m ignoring other angles, like respondeat superior or agency principles between the superintendent and the original email’s author, who was also employed by the school district). In other words, the superintendent’s editorial decision to republish the email (by forwarding it) adds the additional meaning worrying by the judge, but it’s also exactly the editorial function protected by Section 230. See, e.g., the Shiamili case. So the judge is saying that any email forwarder who vouches for the forwarded email’s content–which the act of forwarding does–should lose Section 230 immunity. Perhaps the judge could have limited the Section 230 exception to the superintendent’s “100%” statement. After all, those are the superintendent’s words. But by treating those words as ratifying and incorporating third party content, the judge runs contrary to a buzzsaw of contrary Section 230 cases. See, e.g., Jones v. thedirty (“An adoption or ratification theory, however, is not only inconsistent with the material contribution standard of “development” but also abuses the concept of responsibility. A website operator cannot be responsible for what makes another party’s statement actionable by commenting on that statement post hoc.”).
To his credit, the judge recognizes this is a confusing area and proceeds with extra caution:
this court is inclined to allow a jury to decide the issue of Kuykendall’s liability for defamation. This court will consider any additional trial briefing from the parties in this regard, both as to liability and the manner in which it should instruct the jury regarding the provisions of the CDA. Indeed, it is unclear to this court whether it should decide some of the issues discussed above itself, as a matter of law, or whether it should have the jury do so. In addition, depending upon the nature of that briefing and the manner in which the proof develops at trial, it is possible that this court will feel compelled to grant defendant a directed verdict, notwithstanding the inclinations expressed above. Of course, it is certainly possible that the Fifth Circuit will decide that the CDA provides absolute immunity to Kuykendall in this case. At this juncture, however, this court believes that Kuykendall might well face liability for defamation, notwithstanding the provisions of the CDA. That being the case, this court is not prepared to grant defendant’s motion for summary judgment on the basis of the provision of that statute.
I don’t agree with the judge’s conclusion, but I do like how he’s treating the issue with respect.
BONUS: The judge also discusses the question of whether defamation by email should be evaluated as libel or slander. I can’t believe this is still an open legal question in 2017. The judge doesn’t cite any cases on this question. I also couldn’t find any cases regarding email in my blog archives, but I did find Too Much Media, LLC v. Hale, 2010 WL 1609274 (N.J. Super. A.D. April 22, 2010) (holding that online postings were libel, not slander), and this issue has been extensively vetted in the literature. Fortunately, the judge reaches the right result on intuition alone:
neither party addresses the issue of whether electronic communications constitute libel or slander under Mississippi law, and this court is unaware of any authority which answers this question. The answer to this question might depend upon the context. It could be argued, for example, that an anonymous post on a freewheeling internet message board, where messages quickly “scroll off,” should be considered more analogous to slander. Nevertheless, this court is rather strongly inclined to conclude, in the absence of authority suggesting otherwise, that an email from a superintendent to forty-eight of his principals, with instructions to pass it on to their staffs, who were in turn advised to speak freely regarding those matters with members of the public, constitutes far more than the transitory spoken words of everyday life with which the Supreme Court was dealing in Speed. In so stating, this court notes that, in Speed, the plaintiff “was resolute that no harm to his reputation occurred.” Speed, 787 So.2d at 631. In this case, by contrast, it seems difficult to believe that at least some harm to plaintiff’s reputation did not occur, given the exceedingly wide audience of Kuykendall’s email. Moreover, this audience did not just consist of random recipients, but, rather, individuals who were in a position to greatly affect plaintiff’s professional reputation.
Case citation: Samsel v. DeSoto County School District, 2017 WL 1043640 (N.D. Miss. March 17, 2017). Some source materials.
Prior blog posts on email forwarding and Section 230:
* Section 230 Doesn’t Protect Email Forwarding of Screenshotted Tweets?–Maxfield v. Maxfield
* Emailing the URL of an Allegedly Defamatory Post Immunized by 47 USC 230–Shrader v. Biddinger
* Forwarding Defamatory Email Immunized by 47 USC 230–Mitan v. A. Neumann
* Forwarding Defamatory Email with Introductory Comments Protected by 47 USC 230–Phan v. Pham
* John Doe Anti-Terrorism Officer v. City of New York (the Tefft case)
* Barrett v. Rosenthal–California Issues Terrific Defense-Favorable Interpretation of 47 USC 230