Judge drops AOL from Drudge libel suit

Thursday, April 23, 1998

In a sweeping victory for Internet service providers, a federal district court judge ruled in Blumenthal v. Drudge Wednesday that America Online cannot be held liable for the allegedly defamatory comments posted by Net gossip columnist Matt Drudge.


The controversy arose last August when The Drudge Report said that White House aide Sidney Blumenthal had a “spousal abuse past that has been effectively covered up.” Drudge retracted the claim 24 hours after it appeared and apologized.


Blumenthal and his wife, Jacqueline Jordan Blumenthal, sued Drudge and AOL in a Washington, D.C., federal court for $30 million. The Blumenthals sued AOL because the online service had a contractual arrangement with Drudge in which he was paid $3,000 a month for his reports.


In fact, Robert O'Neil, founder of the Thomas Jefferson Center for the Protection of Free Expression, wrote in a recent article published in The First Amendment and the Media 1998 that “the existence of a contractual arrangement between America Online and Drudge may indeed support the idea that American Online is liable in this instance.”


However, Judge Paul L. Friedman ruled that section 230 of the Communications Decency Act exempted Internet service providers from lawsuits based on content created by others.


Section 230 states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”


Last November, the 4th Circuit Court of Appeals ruled in Zeran v. AOL that “by its plain language, § 230 creates a federal immunity to a cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, § 230 precludes courts from entertaining claims that would place a computer service provider in a publisher's role.”


The Zeran case, which has been appealed to the U.S. Supreme Court, and the Drudge case are considered to be the two test cases of section 230 and Internet service provider defamation.


In his decision, Friedman took an approach similar to that of the 4th Circuit, writing: “Whether wisely or not, [Congress] made the legislative judgment to effectively immunize providers of interactive computer services from civil liability … with respect to material disseminated by them but created by others.”


Cyberlaw expert Eugene Volokh said that “the Zeran and Drudge cases are indeed the two major cases dealing with ISP defamation liability after the enactment of the Communications Decency Act.”


Volokh said that there is a difference between the two cases. “An argument can be made that there should be some sort of policy distinction in the Zeran case, which dealt with allegedly defamatory material posted by an anonymous, random user and Drudge with whom AOL had a special agreement.


“However, that distinction is not visible anywhere in the statute,” he said.


Washington, D.C., First Amendment attorney Michael Kovaka told said that “the decision to dismiss AOL from the lawsuit makes a lot of sense. The whole idea behind section 230 of the Communications Decency Act was to prevent online services from being held liable for the accuracy of material published by another content provider.


Kovaka said: “If the decision had gone the other way, we would have a huge chill on online speech. If the judge ruled AOL could be liable, then AOL would basically have to hire a separate set of reporters to re-investigate material contained in all the Drudge columns and vast amounts of other posted material. That would be an incredible burden.


“AOL is like a virtual newsstand. Imposing liability on AOL would be the equivalent of imposing liability on a bookstore for some statements made in a magazine that it carried,” he said.


However, First Amendment attorney Kevin Goldberg of Cohn & Marks takes a somewhat different view. “AOL is benefiting from its status as an Internet service provider and a general desire in society to let the Internet grow as a medium,” he said.


“A true Internet service provider should get the protections of section 230. However, AOL is not quite the passive conduit of information as envisioned by section 230. Had this been a traditional newspaper online, they would not get the same protections from the Communications Decency Act. What I've seen from AOL and their news packaging is that AOL is similar to a newspaper,” he said.


AOL officials released a statement saying that “the judge's dismissal of the case against AOL is consistent with Congress's intent and previous court decisions.”


The attorney for the Blumenthals, Jo Bennett Marsh, told The Washington Post that Wednesday's ruling would be appealed. Marsh told the paper that the she was encouraged by the judge's reference to Drudge as “simply a purveyor of gossip.”


In the ruling, Friedman cited AOL's own statements that the law does not
free AOL from legal responsibility with respect to “any information AOL
developed or created entirely by itself” or in instances where the company
joins with one or more content providers to jointly develop information
that it disseminates.


Kathy Bushkin, chief communications officer for AOL, said although the
company does develop some of its own content, most of the material is
“aggregated from partners.”


“We check and bear responsibility for our content,” she said, “but it would
be impossible for us to check content” of material from other providers.


Jane Kirtley of the Reporters Committee for Freedom of the Press said the
ruling was “the appropriate judgment. Otherwise, AOL is in a hopeless Catch
22,” in which individuals rightly or wrongly could force the company by just
voicing a complaint or leaving the company “in a position that is really
unconscionable, being liable for stuff they had no concept of.”


“Is ATT liable if somebody uses the phone lines to commit wire fraud?
They're not, because they're just a conduit,” Kirtley said. “What are
these people (AOL), content providers or just a conduit?”


Kirtley also said another element of the judge's ruling — the decision to
keep the lawsuit in Washington rather than move it to California as Drudge
had requested — may be a little more expensive for Drudge in terms of his
travel costs but could ultimately work to his financial advantage.


“I can certainly understand why he would prefer to have it tried in
California,” Kirtley said. “I suspect he thinks he would get a more
sympathetic hearing in California, but I think that there is some logic in
saying he should have to face a jury in the venue where Blumenthal thinks
he is most severely damaged. But I have to wonder: How has he been harmed
by it, who believes it, what detriment (is there) beyond his own hurt feelings …? It could be that Drudge might get a more sympathetic hearing (in
Washington). People here might just raise an eyebrow.”


Robert O'Neil from the Thomas Jefferson Center for the Protection of Free
Expression said the court ruling extended Section 230 of
the law well beyond where it has been in previous cases. He said he
expects Blumenthal and his wife to appeal the judgment because their
position has been that AOL was just a “passive conduit” of Drudge's
material.


“This is a quite different kind of case,” O'Neil said. “Whether Congress
intended (Section) 230 to extend beyond Zeran where the (Internet service
provider) had no knowledge of the material, that seems to me a very
difficult question. Last summer, AOL did advertise the making of this
agreement with Drudge and identified him as a well-known online gossip
columnist.”


Cheryl Arvidson of the World Center contributed to this report.