Sixth Circuit to Review TheDirty Bengals Cheerleader CDA Case - U.S. Sixth Circuit
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Sixth Circuit to Review TheDirty Bengals Cheerleader CDA Case

This case has everything: a Cincinnati Bengals cheerleader, who slept with (and later became engaged to) a student, sued a gossip website over posts submitted by users claiming that she had multiple sexually transmitted diseases and that she had slept with the entire Bengals football team.

Yes, that's a very loaded sentence, as is the case. Actually, check that: this wouldn't be a loaded case, were it not for a district court judge misapplying the Communications Decency Act of 1996, a law which has unanimously (at least, outside of this single Kentucky-based federal court) been interpreted as protecting websites from being sued for user-submitted content.

The Gossip

Though the relevant posts have been taken off TheDirty.com, the district court's opinion provides the text of the two passages.

On October 27, 2009, a visitor posted:

Nik, this is Sara J, Cincinnati Bengal[sic] Cheerleader. She's been spotted around town lately with the infamous Shayne Graham. She also has slept with every other Bengal Football player. This girl is a teacher too! You would think with Graham's paycheck he could attract something a little easier on the eyes Nik!

On December 7, 2009, another post appeared:

Nik, here we have Sarah J, captain cheerleader of the playoff bound cinci bengals. . Most ppl see Sarah has [sic] a gorgeous cheerleader AND highschool teacher. . yes she's also a teacher . . but what most of you don't know is . . Her ex Nate . . cheated on her with over 50 girls in 4 yrs.. in that time he tested positive for Chlamydia Infection and Gonorrhea . . so im sure Sarah also has both . . what's worse is he brags about doing sarah in the gym . . football field . . her class room at the school where she teaches at DIXIE Heights.

For each, as is the procedure at the site, the user submits the content. Without editing or changing the content, the site's moderator, "nik," adds a quip or comment to the end before publishing it to the site.

The Gaffe

The CDA is pretty clear: "No 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."

What's an "information content provider?" It is "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service."

The district court held that because TheDirty approved posts before they went live, and because of the moderator's one-liners, that the site took part in the development of the information at issue here. That interpretation runs contrary to nearly every other circuit in the country, all of which have held that the CDA provides a broad, robust shield against suit for sites that merely republish user-submitted content.

In fact, the CDA was explicitly passed in response to Stratton Oakmont v. Prodigy, a case where, contrary to a prior case's holding, an Internet computer service was held liable for a third-party's comments due to Prodigy's active role in moderating user-submitted content.

The CDA was intended to fix the problem created by that holding, and to encourage sites like TheDirty.com to moderate user-submitted content.

The Sixth

Notice we said nearly every circuit. The Sixth Circuit has not yet addressed the issue, making this a case of first impression. Should the unlikely happen, and the Sixth Circuit uphold the district court's seemingly-erroneous decision, TheDirty.com's attorney noted, in a preface to his opening brief that he shared online, that his client is willing to appeal the issue to the Supreme Court.

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