The firing of a high school football coach in Mississippi, which is no doubt a big deal in and of itself, became a bigger deal when the coach filed a federal lawsuit over the firing. The case involves a long and twisted set of facts, with which I will not bore readers. Suffice to say, the gist of the dispute is largely whether the firing was justified by the coach’s allegedly poor performance, or whether it was a matter of local politics.
But in the course of dealing with a summary judgment motion filed by the defendants, the court dealt with a portion of the Communications Decency Act that does not get as much attention as other parts of that law.
Specifically, in one count of the complaint, the coach, Richard Samsel, contended he was defamed by one sentence in a long e-mail chain. The defendant was the school superintendent, Milton Kuykendall. Samsel claimed that Kuykendall forwarded the chain and thereby became liable for the defamatory content.
The e-mail chain originated with a lengthy message written by Todd Abernathy, a math teacher at the high school. In that message, Abernathy criticized comments made by Heather Fox, who ran the DeSoto County Reform website. That website had been critical of certain DeSoto County school staff and administrators. The sentence at issue said: “[Fox] attacks Alyson Killough [the high school principal] because she fired a football coach that [sic] refused to go teach his class and stole money from the school.”
School Board Chairman Steve Dodd forwarded Abernathy’s e-mail to Kuykendall. Dodd added a comment before Abernathy’s e-mail that said:
“I spoke with Mr. Abernathy the other night. I have known him for many years and have always found him to be even tempered and calm. Two things he was not when we spoke. He is representing the feelings of a lot of teachers I fear and they are frustrating. He said they have been told not to respond to the DCR posts and that bothers me. We have an army of teachers out there who are willing to battle the lies and accusations but if they are being told the [sic] cannot respond, then I fear we are doing them an injustice.”
Kuykendall then forwarded Dodd’s e-mail to approximately forty-eight principals of Desoto County schools. Kuykendall began his e-mail as follows: “Please share this email with your staff from the Chairman of our School Board. As Superintendent I agree with Mr. Dodd 100 percent! Tell your staff they have permission to respond at will. We just finished a great school year. Our teachers are the best and deserve better than to be attacked on a Facebook page. MK”
Samsel was looking to hold Kuykendall liable for Abernathy’s comment that Samsel had “refused to go teach his class and stole money from the school.” Included in the defenses to the defamation claim was the federal Communications Decency Act. Section 230 of the CDA states: “[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.” Most of the cases and commentary have focused on the “provider” part of the Act. That classification covers Facebook, Google, YouTube, etc. And it pretty much allows those interactive services to thrive. They don’t have to fact check or otherwise vet third party content.
The “user” classification has gotten a little less attention. But it was this portion at issue in the case. Kuykendall argued that by forwarding the e-mail, he was a “user” of the service and for that reason, not the publisher of Abernathy’s comment. The court grudgingly agreed with this argument in the broad sense. As the court noted: “[i]n their brief, defendants correctly note that, while there is no binding precedent on point in this context, persuasive authority from other trial courts suggests that, as a general matter, one who forwards an email written by another which contains defamatory statements enjoys immunity under the CDA.”
But the court had some serious heartburn over that rule of law. “This court certainly shares the reservations expressed by the Virginia district court in Supermedia, since granting broad immunity to “users” in this context has an obvious potential to eviscerate state defamation law. Indeed, the act of logging onto a computer (or smart phone) and sending an email is a trivial one, in which, this court believes, most people in this country engage on an almost daily basis. One the other hand, the importance of being able to vindicate one’s reputation through the defamation cause of action has ancient roots in the law. Why the simple act of forwarding an email, even if it is known to be false and defamatory, should trump this hallowed right is not at all clear to this court. This court suspects that few individuals are aware of the authority holding that blanket immunity exists for the forwarding of emails; indeed, its own first impression of defendants’ argument was that it simply could not be the law. And yet it does appear to be the law, at least as the general rule applied by several trial courts.”
But while the court conceded the point generally, it was not willing to let Kuykendall off the hook. In its view, by forwarding the e-mail, given his position as Superintendent, Kuykendall “endorsed and confirmed the veracity of the accusations.” Kuykendall’s comment about agreeing with Dodd’s e-mail “100 percent” didn’t hurt the court’s analysis. But that really was not the determinative factor. The court’s key holding is this: “In his deposition, Abernathy testified that his email was simply referencing “gossip” he had heard at the school, but, when forwarded by Kuykendall, this court believes that this “gossip” became much more than that. [Abernathy depo. at 11] Under these circumstances, a jury could reasonably find that Kuykendall implicitly added defamatory content to Abernathy’s email and that he essentially became a publisher of defamatory material himself, within the meaning of the CDA.”
This passage suggests that even if Kuykendall had said nothing in his forwarding e-mail, the result would be the same. The mere act of “using” the system, in these circumstances, would vitiate the CDA protection.
This is a troubling result. Besides the court’s re-writing the CDA, it creates a rather amorphous standard. When does a system user lose the CDA protection precisely? What level of responsibility does it take? What are the other factors? Are users protected or not?
There is an old cliché about “hard facts making bad law.” This case demonstrates the truth to that platitude.