Amber Hunt

The Cincinnati Enquirer

CINCINNATI — What are the rules for the Internet? Tech companies as large as Google and individuals as ordinary as commenters on websites have a stake in the legal drama posing that question that will unfold in a downtown courtroom Thursday.

The companies and individuals, not to mention First Amendment lawyers nationwide, are watching to learn the fate of a federal defamation lawsuit filed by former Bengals cheerleader Sarah Jones against the gossip website TheDirty.com — a potentially precedent-setting case that some predict is destined for the U.S. Supreme Court.

Jones won the suit and a $338,000 judgment last summer in U.S. District Court in Covington. But the verdict was so unprecedented that it prompted some of the country's largest technology companies to file briefs asking the appellate court to reverse the decision.

Lawyers representing Jones and TheDirty.com will argue their cases in the 6th U.S. Circuit Court of Appeals in Cincinnati. Legal experts say that if the verdict isn't overturned, the case could land in the nation's highest court.

"The decision at the trial court level was counter to all the others that came before it," said Lawrence Walters, a First Amendment lawyer in Orlando, Florida. "It's inconsistent with virtually all of the other trial court and appellate court decisions in the nation. It's one that people in my circles have been talking about and following since the verdict."

In 2012, Jones pleaded guilty to criminal charges and admitted to a judge that she had sex with a 17-year-old student she taught at Dixie Heights High School. She later became engaged to the student.

Like a lot of websites, TheDirty.com allows commenters to leave posts, some of which could be considered offensive. Jones, for one, said she was offended when two posts appeared in 2009 that said she'd had sex with every Bengals player on the team and likely had gonorrhea and chlamydia.

Jones sued and won, largely because U.S. District Judge William Bertelsman ruled the website wasn't shielded from liability by the Communications Decency Act of 1996, or CDA. Bertelsman ruled that because TheDirty.com operator Nik Richie comments on people's posts and invites people to post "dirt," he's responsible for the content posted by others.

The verdict has tech companies including Google, eBay, Facebook, Amazon and Microsoft worried. Those and others have filed briefs with the court warning that, if the verdict stands, the legal precedent it sets could cripple the free expression and commerce that has flourished on the Internet.

Walters said the tech giants' worries are founded. "Most people these days have a stake in the outcome of this case," he said. "We're all publishers these days, whether we're commenting or operating a forum or a blog or a Facebook page."

Jones' lawyer, Chris Roach, disagrees. He said most sites allowing users to comment behave different from Richie, who reviews all posts that are submitted to him and often leaves comments alongside them.

For example, in a post claiming that Jones had venereal diseases, Richie allegedly wrote, "Why are high school teachers freaks in the sack?" and signed his first name.

"The issue here is really narrow, it's about whether or not TheDirty.com is entitled to immunity under the CDA," said Roach, who added that Jones doesn't have chlamydia or gonorrhea. "Richie reviews all the posts. He's said he's looking specifically for things that will cause a rise. He wants to put dirt out on the Internet about private people."

Rob Linneman, a Cincinnati lawyer who's handled First Amendment and defamation cases, said if the appellate court interprets the law differently than other courts have, the case could be destined for the Supreme Court. The high court hasn't considered the question of immunity under section 230 of the Communications Decency Act, which states that a provider of a computer service shouldn't be considered to be the "speaker" of information provided by a third party.

"Circuit splits are particularly attractive for the Supreme Court, and First Amendment cases are attractive, too," Linneman said.

Lawyer David Gingras, who represents Richie and TheDirty.com, doesn't think the case will get that far. He is confident the appellate court will reverse the trial judge's verdict.

"I'd like to believe it'll sort of die a quiet death. They should rule in our favor and completely reject the trial judge," Gingras said.

The website case is unrelated to Jones' sexual relationship with a student when she taught at Dixie Heights High School in Edgewood, for which Jones pleaded guilty in October 2012 in state court to misdemeanor sexual misconduct and felony custodial interference. She isn't likely to serve prison time if she abides by the rules of her five-year probation.

In Thursday's case, Roach and Gingras each will argue before the appellate court panel for 15 minutes. The panel is expected to issue a written ruling later.

What the law says

Section 230 of the Communications Decency Act of 1996 provides legal protections to operators of websites and other types of interactive computer services. It grants those services broad immunity from certain types of legal liability stemming from the content created by others. The immunity covers defamation and privacy claims, as well as negligence and other tort claims associated with publications.

Operators of the services are guaranteed not to lose immunity even if they edit the content, whether for accuracy or civility, so long as the edits don't materially alter the meaning of the original content.

At issue in the Sarah Jones case is whether TheDirty.com operator Nik Richie is entitled to this immunity.