(Updated below)
We’ve written before about Section 230 of the Communications Decency Act of 1996 — a federal law that protects the robust diversity of free speech we’ve come to know and love (and hate) on the Internet. Last night, the ACLU and the had a chance to put our money where our mouth is. We filed a friend of the court brief on behalf of the user-generated gossip website (warning: not just a clever name) and its publisher Nik Richie, who were recently — and wrongly — held legally responsible for someone else’s internet trolling. Our brief, filed alongside a - of dedicated to free speech, argues that the decision could be a disastrous precedent for Internet speech.
Section 230, which immunizes websites from legal liability for the comments of their users, defines Internet culture as we know it. You know how you could, if you were so inclined, go on Yelp and trash a business? Section 230 ensures that if you lie, and the company sues you for defamation, ˛â´ÇłÜ’r±đ on the hook for lying, not Yelp. Similarly, if you use Facebook to harass someone — don’t do that, by the way — Facebook doesn’t become the defendant; you do.
When Congress enacted Section 230, it wisely recognized that holding every website legally responsible for user-generated content would cripple the rapidly developing online world. Section 230 liberates websites from the chilling effect caused by the fear of being sued every time an Internet user exercises bad judgment.
The vast majority of courts have honored Section 230’s robust immunity. But a court recently bucked this principled tradition when faced with the salacious set of facts in this case.
TheDirty.com is probably best known for its role in the latest Anthony Weiner scandal. In 2009, the site posted an anonymously submitted story stating that Sarah Jones, a high school teacher and Cincinnati Bengals cheerleader, slept with the entire Bengals team. A second post alleged Jones had sex with her husband in her classroom and had STDs. TheDirty.com’s publisher, Nik Richie, then added his own fateful commentary at the bottom of this post: “Why are all high school teachers freaks in the sack? – nik.”
Jones then filed a lawsuit against Richie and the site, claiming the two posts alleging she had STDs were defamatory. To be clear, the posts accusing Jones of having STDs and sleeping with the team were absolutely defamatory. But Jones didn’t sue the person who wrote the posts. She sued TheDirty.com and Richie for hosting them.
The defendants claimed that Section 230 provided immunity because those posts were authored by a third party, but the judge (incorrectly) disagreed. He held, basically, that Richie was asking for it, due to the name of the site, Richie’s general “encouragement” of gossip, and his “adoption” of the anonymous defamation by wondering aloud why teachers are freaky. (It’s important to note that asking why all teachers are freaky is absolutely not itself defamatory, and no one in this case claimed otherwise.) The judge then instructed the jury that Richie was on the hook for the anonymous poster’s defamation of Jones; the jury awarded her $338,000 in damages. (Interestingly, this took two jury trials — the first jury couldn’t reach a after hearing about Jones’ intervening felony conviction for having sex with one of her students.)
The judge was flat wrong on the law. But this decision is even worse public policy. That’s because the essence of the trial court’s judgment was that by seeking critical, disparaging speech (gossip), Richie and TheDirty.com were actively seeking unlawful speech (defamation), and didn’t deserve immunity. But dirt simply doesn’t equal defamation. And equating the two would be disastrous for other sites that offer a wide array of extremely valuable speech.
For example, consumer watchdog sites encourage users to submit reports of corporate malfeasance — speech that is inherently critical, disparaging, even damaging for the companies complained about. But is clearly a great public service, not a hub for criminal activity. Similarly, environmental activists at sites like invite users to submit horror stories about fracking in their communities; the asks users to report bed bug infestations.
These sites, just like TheDirty.com, solicit and collect (truthful) negative commentary that could absolutely ruin a business or individual’s reputation. They rely on user-generated content to populate their sites, and sometimes react to it as though it’s true. Their users, like anyone else on the net, and like the anonymous troll on TheDirty.com, might lie. And Section 230 places the consequences for those lies squarely on the shoulders of the liar — not the website that hosted the speech just because it waded into critical waters.
But the Jones decision threatens to turn every troll’s comments into a lawsuit that a website will have to defend.
It’s important this decision is overturned, not only for these defendants, but for every website offering platforms for user speech, especially critical speech. This decision risks eroding the certainty websites currently enjoy that they won’t spend every day litigating over their comment section. We proudly join the chorus of voices asking the appeals court to overturn it.
Update (June 16, 2014):
This decision was overturned; blog post here.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
Press ReleaseDec 2024
National Security
Religious Liberty
ACLU Statement on New White House Strategy to Counter IslamophobiaACLU Statement on New White House Strategy to Counter Islamophobia
WASHINGTON – The Biden administration today released the first-ever national strategy to counter Islamophobia and related forms of bias and discrimination, including hate against Arab, Sikh, and South Asian Americans. In advance of the strategy, American Civil Liberties Union and its partners had urged the administration to overhaul government programs that reflect anti-Muslim discrimination. In particular, we have called for urgent action to constrain governmental agencies from continuing to exercise their authorities and technology to wrongly surveil and investigate, watchlist, and question and detain Muslims at the border, as well as deny immigration benefits to people from Muslim-majority countries. While the White House raised expectations that many of these issues would be addressed, the final strategy ended up falling far short. The following is a statement from Hina Shamsi, director of the ACLU’s National Security Project: “While this strategy acknowledges discrimination and its harms, it does little to end them and is a squandered opportunity. For decades, American officials have invoked national security to pass laws and implement programs that disproportionately harm Muslims and people perceived to be Muslim. A serious anti-discrimination strategy would concretely address multiple bias-infused government practices that deny our communities equal participation in civic life and our democracy, like federal watchlisting, surveillance, and investigation. We’re profoundly frustrated that the administration didn’t take even the basic, overdue step of recognizing that anti-Muslim discrimination is uniquely normalized and embedded in government policies.” -
VirginiaDec 2024
National Security
Trabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted ManTrabelsi v. Crawford, et al. – Lawsuit Challenging Unlawful Detention and Inhumane Treatment of Acquitted Man
Our client, Nizar Trabelsi, is in the United States against his will. The federal government brought him here from Belgium more than a decade ago and charged him with terrorism-related crimes. At trial, the government’s case failed: a federal jury found Mr. Trabelsi not guilty. But instead of allowing Mr. Trabelsi to return to Belgium after his acquittal, the United States placed him in highly restrictive immigration detention and began an ongoing effort to force him to Tunisia, where he was born and where he will very likely be tortured. Mr. Trabelsi’s detention violates the Constitution, immigration law, and the extradition treaty between the United States and Belgium. Through this lawsuit, he seeks to return to Belgium, and he demands an immediate improvement of his detention conditions. -
Press ReleaseDec 2024
National Security
Immigrants' Rights
Federal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is UnlawfulFederal Judge Rejects Acquitted Man’s Argument That His Immigration Detention Is Unlawful
ALEXANDRIA, Va. — This week, the U.S. District Court for the Eastern District of Virginia ruled that the court does not have jurisdiction to decide whether the government can continue to detain Nizar Trabelsi, a Tunisian national who was brought to the United States against his will for prosecution and was cleared of all charges last year. The ruling means the United States will be able to continue to detain Mr. Trabelsi while it attempts to deport him to Tunisia, where he was born and where, as an immigration judge ruled earlier this year, he will likely face torture. The court also concluded that even if it did have jurisdiction over Mr. Trabelsi’s case, his claims challenging the government’s detention of him would fail. “Reviewing claims that the government is holding someone unlawfully is at the core of the judicial function, and we’re heartbroken for our client that the court got this so wrong,” said Brett Max Kaufman, senior staff attorney with the ACLU’s Center for Democracy. “The government’s arguments in defense of Mr. Trabelsi’s detention makes a hash of the Constitution, immigration laws, and its own extradition treaty.” In 2013, the United States forcibly extradited Mr. Trabelsi from Belgium to face criminal charges in the United States. In July 2023, after almost 10 years of highly restrictive pretrial detention, a federal jury cleared Mr. Trabelsi of all charges. But instead of releasing Mr. Trabelsi or returning him to Belgium, the U.S. transferred him to immigration detention, wrongly treating him as an applicant for admission and placing him in the deportation process. Over the years, the Belgian government has issued multiple formal diplomatic requests asking the U.S. to facilitate his return, but the U.S. has refused to send him back. Mr. Trabelsi filed a lawsuit challenging the government's authority to detain him. He also sought immediate improvements to his detention conditions. Those claims were not part of the court’s ruling today, and will continue to be litigated on a separate track. “Mr. Trabelsi only wants to return to Belgium after being illegally extradited to the United States, held for ten years, and then acquitted by a jury of any crimes,” said Nicole Hallett, clinical professor of law and director of the Immigrants’ Rights Clinic at the University of Chicago Law School. “He cannot be held indefinitely and we will continue to fight to make sure that justice ultimately prevails.” Mr. Trabelsi is represented by the American Civil Liberties Union, the University of Chicago Law School’s Immigrants’ Rights Clinic, the ACLU of Virginia, and Professor Jonathan Hafetz of Seton Hall Law School. The complaint in Trabelsi v. Crawford was filed against Jeffrey Crawford, warden of the Farmville Detention Center where Mr. Trabelsi is being held; Liana Castano, ICE field office director for the Washington Field Office; Alejandro Mayorkas, secretary of the Department of Homeland Security; and Merrick Garland, U.S. attorney general.