No. 13-5946
Jones v. Dirty World Entm’t Recordings, et al.
Page 23
Unlike in Roommates, the website that Richie operated did not require users to post
illegal or actionable content as a condition of use. Cf. Roommates, 521 F.3d at 1165−68. Nor
does the name of the website, www.TheDirty.com, suggest that only illegal or actionable content
will be published. Unlike in Accusearch, Richie or Dirty World did not compensate users for the
submission of unlawful content. Cf. Accusearch, 570 F.3d at 1200−01. The website’s content
submission form simply instructs users to “[t]ell us what’s happening. Remember to tell us who,
what, when, where, why.” The form additionally provides labels by which to categorize the
submission. These tools, neutral (both in orientation and design) as to what third parties submit,
do not constitute a material contribution to any defamatory speech that is uploaded. See Nemet,
591 F.3d at 256 (finding that the “structure and design of [defendant’s] website” and the
website’s “solicit[ion of] its customers’ complaints [and] steer[ing] them into specific
categor[ies]” did not constitute development under § 230(f)(3)” (fifth alteration in original)
(internal quotation marks omitted)); Roommates, 521 F.3d at 1173−74 (holding that § 230 barred
the fair housing councils’ claims grounded on the discriminatory statements displayed through
Roommate’s operation of the “additional comments” section of its website).
Further, Richie’s comment on the December 7 post—viz., “Why are all high school
teachers freaks in the sack?”—although absurd, did not materially contribute to the defamatory
content of the statements uploaded on October 27 and December 7, 2009. Richie’s remark was
made after each of the defamatory postings had already been displayed. It would break the
concepts of responsibility and material contribution to hold Richie responsible for the
defamatory content of speech because he later commented on that speech. Although ludicrous,
Richie’s remarks did not materially contribute to the defamatory content of the posts appearing
on the website. More importantly, the CDA bars claims lodged against website operators for
their editorial functions, such as the posting of comments concerning third-party posts, so long as
those comments are not themselves actionable. See Zeran, 129 F.3d at 330; see also 47 U.S.C.
§ 230(f)(3).
To be sure, Richie was an information content provider as to his comment on the
December 7 post. But Jones did not allege that Richie’s comments were defamatory. And the
district court did not hold that Richie’s comments were themselves tortious. Rather, the court
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