Two Pro Se Section 230 Rulings–Scott v. Carlson & Watkins v. Carr

While we wait for the next big Section 230 ruling (so many cases are on appeal!), today I’m recapping two recent pro se cases.

Scott v. Carlson. The complaint alleges that: Carlson created online content to attack Scott; Moon published Carlson-submitted false information about Scott to a message board Moon operates called Kiwi Farms (self-described as being “about eccentric individuals and communities on the Internet. These people are commonly referred to as Lolcows and are each distinct thanks to their erratic public behavior”); and DiGrippo published Carlson-submitted false information about Scott to the Encyclopedia Dramatica wiki operated by DiGrippo. In a footnote, the court observes that “This is Scott’s eighth pro se case filed in this court within the last two years. All of them have been dismissed.”

The lawsuit also fails. In particular, the defamation claims against Moon and DiGrippo fail due to Section 230. The court tersely says that they “are not liable for enabling the unlawful content of others to be posted online.”

Case citation: Scott v. Carlson, 2018 WL 6537145 (W.D. Va. Dec. 12, 2018)

[UPDATE: in a related ruling, the court says “Moon and Zaiger can only be held liable for the speech on Kiwi Farms and Encyclopedia Dramatica that is properly attributable to them,” and “Scott does not provide any evidence making it plausible that Moon and Zaiger created the content at issue themselves.” Thus, Section 230 immunizes most claims. The remaining defamation claim also fails: “Moon’s allegedly defamatory statements — that Scott is “the dumbest person, possibly ever,” “really fucking stupid,” a “moron,” a “slut whore,” that she writes like she uses “crayola magic marker,” and she has “ha[d] like a dozen husbands by age 30” — are rhetorical hyperbole rather than assertions of fact.” Scott v. Moon, 2019 WL 332415 (W.D. Va. January 24, 2019).]

Watkins v. Carr. Oh great–yet another Trump-related lawsuit. #MALGA. This one involves the JQPUBLIC blog, which covers Air Force-related items. The blog post “After Trump Event, New Questions About Air Force Vet’s Backstory” explored some apparent inconsistencies in the background of Watkins, who asked a question at a Trump media event and got a job offer from Trump on the spot. If Watkins did in fact play fast-and-loose with the truth about her background (something I have no opinion about), maybe she’d be a perfect candidate to work for Trump after all.

Watkins didn’t like the blog post and sued the blogger and the blog operator for $30M. The defendants sought summary judgment per Section 230. The court punts:

Although Defendants seek CDA immunity, the record evidence viewed most favorably to Watkins does not demonstrate what role, if any, Defendants played in creating or developing the content of the post. Defendants did not, for example, submit affidavits or other documentary evidence to establish that it did not contribute or otherwise participate in the creation of the blogpost content. Nor can the Court consider as evidence Defendants’ mere averments included within their pleadings. Accordingly, the Court declines to reach whether Defendants are immune from suit under the CDA.

The court treats the defendants as having the burden of establishing the 230 defense, consistent with its general characterization as an affirmative defense. However, the court could have expected Watkins to produce record evidence establishing her prima facie case against the defendants, including their role in the publication that would have clarified the applicability of Section 230. Surely the court was being gentle because of her pro se status. No matter, because Watkins’ defamation claim failed for other reasons. The court says “Watkins identifies as defamatory 26 separate passages of the blogpost. However, Watkins has not generated any evidence to prove any of this content is false or conveys a ‘provably false factual connotation.'” The false light claim fails for the same reason. As for IIED, the court says “Defendants’ publishing a blogpost alone is not the kind of ‘extreme and outrageous’ conduct contemplated by this rarely invoked common law tort.”

So overall, I’ll rule this as a net win for bloggers. The result would have been even better with a robust anti-SLAPP law leading to a quicker pre-discovery dismissal with fee shifts.

Case citation: Watkins v. Carr, 2018 WL 6570686 (D. Md. Dec. 13, 2018)