Blogger Isn’t Liable for Anonymous Comments–Griffith v. Wall

[It’s impossible to blog about Section 230 without reminding you that Congress is on the cusp of gutting it.]

Griffith blogs at the Lumberton Informer. He has criticized Wall, Lumberton’s municipal clerk. The blog allows anonymous comments, and Wall claimed that Griffith wrote those too. Wall sued Griffith for defamation, but Griffith won at trial. In a post-trial opinion, the judge explained that Wall was a public figure, so any defamation claim needed to show actual malice, and no malice was shown. The opinion also said that most of Griffith’s statements were opinions, not assertions of facts. Regarding the anonymous comments, the opinion indicated “there was insufficient proof in the record to find that Griffith had control over the posting of anonymous comments in his blog—and thus was not responsible for their content.”

In Wall’s appeal, she claimed that Griffith violated 47 USC 230(c)(2), the provision that says websites aren’t liable for their filtering decisions. What??? Wall claimed 230(c)(2) “placed an obligation on Griffith to remove offending material published—by anonymous posters—on his blog.” The appellate court disagrees:

nowhere in the text of either section 230(c)(1) or (c)(2)(A) does the statute place any obligation on a provider or a user to screen offensive material. What is more, the title of the statute clearly previews a statutory protection, not a mandate. By its very terms, the title denotes protection for private blocking and screening of offensive materials. One may chose to block or screen offensive material; he, however, is under no obligation to do so.

As a backup claim, Wall argued that Griffith’s “failure to utilize [the 230(c)(2)] protection ultimately encourages the dissemination of offensive material.” The court rejects this argument, too.

All’s well that ends well, but the litigation posture about Section 230 is confusingly jumbled. It doesn’t appear the trial court relied on Section 230(c)(1) to protect Griffith for the anonymous comments, butSection 230(c)(1) is directly on point. We know that the Seventh Circuit recently allowed assertions that the website operator wrote its own anonymous/pseudonymous comments to get past a motion to dismiss (see Huon v. Denton), but here, the case went to trial anyway and the trial court seemingly rejected the argument that Griffith wrote the anonymous comments. So at that point, Section 230(c)(1) clearly protects Griffith, though it wasn’t mentioned in the appellate opinion and maybe not in the trial court opinion either.

Seeing Section 230(c)(2) turned into a cause of action to attack the failure to remove content was mind-blowing. I’m having a tough time imagining any misreading Section 230(c)(2) that’s more incorrect or ahistorical. Fortunately, the appellate court appropriately shut down that misreading. Interestingly, Section 230(c)(2)’s good faith requirement didn’t come up, though it makes sense because the blogger didn’t actually rely on a Section 230(c)(2) defense.

Case citation: Griffith v. Wall, 2017 WL 3713534 (Miss. Ct. App. Aug. 29, 2017)