By Eric Goldman

Steele v. Mengelkoch, 2008 WL 2966529 (Minn..App. Ct. Aug. 5, 2008)

A professor at Bemidji State University wrote a story saying some putatively unflattering things about a local journalist, who didn’t take kindly to the allegations and brought a lawsuit alleging defamation and related torts against a number of defendants, including seeking $50 BILLION from Google. (GOBOGH!) This opinion is unclear exactly how the plaintiff alleged that Google was involved in the defamation, but it wouldn’t matter because we know that 47 USC 230 fully protects Google in all cases. The trial court knew this too, and granted a dismissal per 230. The trial court went further and sanctioned the pro se in pauperis defendant under the state law equivalent of Rule 11 by sua sponte ordering him to pay Google’s attorney’s fees of over $12k. As far as I know, this was the first time a judge issued Rule 11 sanction for filing a lawsuit preempted by 47 USC 230.

The appellate court glibly upholds the 230 dismissal, but it reverses Google’s attorney’s fees award on a technicality–Google didn’t ask for the sanctions and the plaintiff didn’t have the chance to withdraw the filing before being punished, which precluded Rule 11 sanctions in this case. However, even though this plaintiff dodged the bullet here, make no mistake–courts are getting tired of lawsuits that are plainly preempted by 230, and I expect judges to become increasingly willing to do more than just kick out a lawsuit quickly. Even if the sanction award didn’t stick this time, it’s only a matter of time before it will. Just one more reminder for plaintiffs to pick the right defendants to try to hold responsible for their alleged wrongs.