As noted in the district court opinion, Tucker Max is a professional “asshole” and “drunk” who posts about his exploits on his website, tuckermax.com. Anthony DiMeo III is a party promoter and blueberry farm heir, who threw a New Year’s Eve party in 2005. Unfortunately, the party ended in disaster when the liquor stopped flowing at 10: 30p.m. Mayhem ensued.

The disastrous affair and its unfortunate host, DiMeo, were the subjects of several rude, coarse and irreverent message board posts on Max’s website. One of the more polite posts remarked that “Maybe [DiMeo] should find [his] validation elsewhere… preferably at the end of a magnum.” Other comments were even more unrefined and will not be repeated here. But here is the cite to the district court opinion if you are interested in the scandalous repartee on the message board, which was quoted extensively: DiMeo v. Max, 433 F.Supp.2d 523 (E.D.Pa. 2006).

But onto the law!

DiMeo sued Max for six message board comments that he found offensive and defamatory. However, DiMeo did not allege that Max authored the posts. Instead, he alleged that Max “through his [web site] publishe[d] defamatory statements aimed at Plaintiff….” DiMeo’s claim was dismissed by the district court; there was no question that Max’s website was an “interactive computer service” under 47 U.S.C. §230, and DiMeo alleged that Max published (rather than authored) the offending posts. In a straightforward application of §230, which provides a safe harbor for interactive computer services who allow third parties to post, Max was given immunity, and the blueberry farm heir was voted off the island.

The Third Circuit affirmed the district court opinion on September 19 in DiMeo v. Max, No. 06-3171, 2007 WL 2717865 (3d Cir. Sept. 19, 2007). DiMeo, in his appeal brief, made an argument that Max was an “information content provider” rather than just an “interactive computer service,” because “he solicited and encouraged members of his message board community to engage in defamatory conduct.” This hypothetical exception to the §230 safe harbor was also articulated in the controversial opinion in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 489 F.3d 921, 928 (9th Cir. 2007). The relevant part of the Roommates.com opinion is quoted below:

Imagine, for example, www. harrassthem. com with the slogan “Don’t Get Mad, Get Even.” A visitor to this website would be encouraged to provide private, sensitive and/or defamatory information about others-all to be posted online for a fee. To post the information, the individual would be invited to answer questions about the target’s name, addresses, phone numbers, social security number, credit cards, bank accounts, mother’s maiden name, sexual orientation, drinking habits and the like. In addition, the website would encourage the poster to provide dirt on the victim, with instructions that the information need not be confirmed, but could be based on rumor, conjecture or fabrication.

It is not clear to us that the operator of this hypothetical website would be protected by the logic of Carafano. The date match website in Carafano had no involvement in the creation and development of the defamatory and private information; the hypothetical operator of harrassthem.com would. By providing a forum designed to publish sensitive and defamatory information, and suggesting the type of information that might be disclosed to best harass and endanger the targets, this website operator might well be held responsible for creating and developing the tortious information. Carafano did not consider whether the CDA protected such websites, and we do not read that opinion as granting CDA immunity to those who actively encourage, solicit and profit from the tortious and unlawful communications of others. [my emphasis]

Oddly enough, the 9th Circuit opinion had advanced the above-mentioned argument merely as an instructive hypothetical and ultimately decided that it need not map the outer limits of protection of websites that solicit and post users’ responses; instead, the 9th Circuit held in Roommates.com that by “categorizing, channeling and limiting the distribution of users’ profiles,” the defendant “provides an additional layer of information” and was therefore responsible in part for the actual creation and development of the allegedly illegal content. However, as a result of the 9th Circuit’s articulation of the hypothetical harrassthem.com fact pattern and holding, aggrieved individuals may latch onto the argument developed in the hypothetical in an attempt to attach liability to online publishers who encourage and solicit complained-of posts but who do not author them themselves. DiMeo may have attempted to do just that.

However, this argument was not even considered by the judge in the Third Circuit, who dispensed with it by noting that DiMeo failed to allege such solicitation and encouragement in the complaint; the Third Circuit did not even cite the Roommates.com opinion. Instead, the Third Circuit based its affirmation on a broad reading of §230 protection, which is in line with the vast majority of §230 case law.