“Shitty Media Men” List Operator Doesn’t Qualify for Section 230 (Yet)–Elliott v. Donegan

[Note: I will blog the Senate Judiciary Committee’s EARN IT bill in a blog post next week, after I stop crying.]

This case involves a Google spreadsheet called “Shitty Media Men,” created by the defendant. The defendant’s goal was to “encourag[e] women to anonymously publish allegations of sexual misconduct by men” in the media sector. Someone added an entry about the plaintiff, though who did that remains unresolved. The plaintiff’s entry was highlighted in red, which signaled that multiple women had accused him of physical sexual violence. The list went viral, and the defendant shut it down after about 12 hours. The plaintiff sued the defendant for defamation. Among other defenses, the defendant asserted a Section 230 defense on a 12(b)(6) motion.

ICS Provider. The defendant qualified by operating a Google spreadsheet, which the court says is “akin” to a message board.

Third-Party Content. The court says it’s not apparent on the complaint’s face that the content came from a third party.

The plaintiff alleged that the defendant fabricated and inputted the spreadsheet entry about him. If true, everyone agrees that Section 230 does not apply.

If the entry came from a third party, the court said it can’t dismiss the complaint now because the defendant may have materially contributed to the alleged unlawfulness, and that can’t be resolved on the complaint’s face. The plaintiff also alleged a Batzel issue, where the defendant received third-party information not meant for publication and posted it to the spreadsheet anyways.

However, the court rejected the plaintiff’s arguments that the defendant “specifically encouraged” the unlawful content based on the warning legend added to the spreadsheet and the spreadsheet column headings. Referencing Roommates.com, the court says that the spreadsheet is analogous to a free-text comment box because “Neither this header nor the design of the spreadsheet urges or requires users to input defamatory statements—or otherwise unlawful content—to view or contribute to the List.”

The court also rejected the plaintiff’s argument that the red highlighting and associated legend removed Section 230 protection:

Plaintiff’s entry included “rape accusations,” in the plural form. In highlighting Plaintiff’s entry in red, denoting that Plaintiff was “accused of physical sexual violence by multiple women,” Defendant provided neutral assistance or generally augmented the content. Again, the Court rejects, in the strongest possible terms, any argument by Plaintiff that the Defendant materially contributed to the unlawful meaning of the allegations which is premised on a belief that rape does not necessarily involve physical sexual violence. And the Court will not take the absurd position that where more than one woman accused Plaintiff of rape, categorizing those allegations as “accused of physical sexual violence by multiple women” materially altered the content.

I don’t know what “neutral assistance” means, but the court is on the right track. Mostly the court is trying to say that Section 230 applies to metadata generated from third-party content.

While the court rejects the motion to dismiss, the court fast-tracks summary judgment on Section 230 because it could still be dispositive:

CDA immunity may prove to be a gating issue in this case and the Court wishes to avoid an unnecessary expenditure of judicial resources. As such, the parties shall proceed without delay to narrowly tailored discovery to address factual issues related to Defendant’s CDA immunity defense. Once such discovery is completed, the parties may move for summary judgment on CDA immunity

This case reminded me of DF Pace v. Baker-White from earlier this year. That case involved a website republishing social media posts by police officers that allegedly evidenced their discriminatory mindset. That court did unwise things to Section 230, basically trying to reach the conclusion that the website’s framing/context created implied defamation. This court struck a sounder path with Section 230 than the DF Pace case. Still, the defendant won the DF Pace case, and that seems likely in this case as well.

Case citationElliott v. Donegan, 2020 WL 3545155 (E.D.N.Y. June 30, 2020)