Former BenGal cheerleader and high school teacher Sarah Jones yesterday won a $338,000 jury verdict against Dirty World Entertainment in a defamation suit. Jones, who last year plead no contest to criminal charges relating to her sexual relationship with one of her high school students -- claimed that comments about her sex life posted by third parties on “the dirty.com” Web site (operated by Dirty World) tarnished her reputation.

As a First Amendment/Free Speech advocate, I have to say, it may not be a bad thing that Dirty World lost.  If that sounds counter intuitive, let me explain. The key decision in this case may be less the jury verdict than the court’s order in January 2012 denying Dirty World’s Motion for Judgment as a Matter of Law. In that order, Judge William Bertelsman ruled that the federal Communications Decency Act did not shield Dirty World from liability for the third party posts. And that allowed the case ultimately to go to the jury.

Congress passed the CDA in 1996. As acts of Congress go, it’s pretty simple  -- a Web site operator cannot be deemed the publisher of “any information provided by another information content provider.” So if I host a Web site, and a third party posts nasty comments about someone, the poster is potentially liable, but not me. On this basis, it’s pretty tough to see how Sarah Jones’ case survived.

But it did. In his order, Judge Bertelsman looked at the CDA’s definition of “information content provider” and decided Dirty World fit under it. According to that definition, “information content provider” means 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.”

Judge Bertelsman reached his conclusion for three reasons. First, the dirty.com – by virtue of its name and tone “encourages the posting only of ‘dirt,’ that is material which is potentially defamatory or an invasion of the subject’s privacy.” Second, Richie selected which posts would actually appear on the site, apparently posting the juiciest ones. And he refused to remove the posts about Jones, despite her requests that he do so.

Finally, the court noted that Nik Richie added his own comments to the third party posts. According to the court, this was the most significant factor. The court pointed to this exchange as an example:

On December 7, 2009, another post was made to “the dirty.com:”
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.

In response, Richie posted: “Why are all high school teachers
freaks in the sack? – nik.”

All three factors led Judge Bertelsman to conclude that Dirty World “encouraged what is offensive about the content of the site.” (I added the emphasis). And for that reason, in Judge Bertelsman’s view, Dirty World became an information content provider.

So why is it a good thing that Dirty World got hit with the verdict? Because the January 12 order was not a final order, and couldn’t be appealed at the time the court issued it. And if dirty.com had won at trial, it would have had no need to appeal. Which means the 6th Circuit Court of Appeals would not have had a chance to review the order and weigh in on the legal issue. Now that Dirty World has 338,000 reasons to appeal the 6th Circuit will have its chance.

And ideally the appellate court will provide answers to several questions. For instance, should the name and the tone of the Web site have anything to do with the simple question of who created the content of the offending post? Why? If someone creates a Web site called “Impeach Obama” and encourages readers to vent about their distaste for President Obama, is the site operator liable for any potentially defamatory post made by a third party?

Should the fact that the site operator screens and filters posts affect its immunity? How does that square with prior case law that states the CDA protects the editorial decision “whether to publish”? Are site operators advised not to screen at all? And isn’t that inconsistent with the provision of the CDA that protects operators who “restrict access to or availability of material”? And how does choosing which posts to put online make anyone a “content creator” with respect to any given post?

And if the site operator makes a non-actionable comment in response to a third party post, why should that create any liability? The question “why are all high school teachers freaks in the sack” may be crude, but it’s not defamatory. And again, how does the fact that the site operator made that comment make it a creator of the preceding post?

I hope the 6th Circuit takes a careful look at Judge Bertelsman’s comment that Dirty World “encouraged what is offensive about the content of the site.” Because that may be the key issue. By the CDA’s express terms, the question about who created the content focuses on the particular content at issue –in this case, the third party posts. And so the only question should be whether the operator had anything to do with the creation (not the posting) of that specific comment. Given that the poster was anonymous, Dirty World had nothing to do with creating that specific post.

But Judge Bertelsman’s order by its terms looks beyond the specific post to the site itself. And he concludes that if the site operator creates a space where a third party might post actionable content, the operator’s role in creating the site is sufficient to lose the CDA protection. It is one thing to expand a statute; it is another to stretch it like a wad of Silly Putty.

Predicting what an appellate court will do is almost as difficult as predicting a jury outcome. But it is safe to say lots of folks will be anxious to see if there is anything to cheer about when the decision comes down.