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Tucker Max and Section 230

Tucker Max publishes books, websites, and blogs that some people find humorous. I certainly do.

He also owns a website upon which one finds online forums in which people all over the world engage in discussion. I have never read them, but I presume that they trend to the juvenile, disgusting, and any other nasty adjective you can think of. I presume that Mr. Max would find great pride in this description.

As usual, someone took offense and filed a defamation claim against Max for statements published by others on his web forum. 47 U.S.C. Section 230 has been on the books for nearly a decade, and virtually every court has held it to be an absolute bar against claims of this type against message board operators. Nevertheless, the plaintiff in this case joins a long line of disappointed parties who find out that Section 230 is alive and well and not going anywhere.

The Third Circuit held, in pertinent part:

We agree with the District Court that DiMeo’s defamation claim is barred by 47 U.S.C. § 230. Section 230 provides, in relevant part, that “[n]o 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.” 47 U.S.C. § 230(c)(1) (emphases added). “No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3); see also Green v. America Online, 318 F.3d 465, 471 (3d Cir. 2003) (stating that § 230 “‘precludes courts from entertaining claims that would place a computer service provider in a publisher’s role,’ and therefore bars ‘lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions–such as deciding whether to publish, withdraw, postpone, or alter content.’” (quoting Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997)). (source)

When will lawyers begin to learn the art of client control? Why was such a patently unsupportable case filed in the first place? The Plaintiff is fortunate that he escaped with nothing more than a dismissal. Max should have counterclaimed and sought sanctions under Rule 11. It is a testament to his mercy that he did not. If I were, hypothetically speaking of course, involved in such a case, I would not be so charitable.

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