Pamela Roskowski, former police chief of Corvallis, Oregon, sued the Corvallis Police Officers’ Association (“CPOA”) and the International Brotherhood of Teamsters, Local 223, alleging libel, false light, and intentional infliction of emotional distress. Among many, MANY other things, Roskowski claimed that the defendants published numerous false and defamatory statements on a website created by CPOA. Magistrate Judge Donald C. Ashmanskas found that the website “allowed, if not encouraged, the public to post messages about Plaintiff. The website was advertised in the local newspaper and was intended to be used as a public forum for discussion about Plaintiff and her service as chief of police.” Roskowski challenged the publication of “unverified” anonymous e-mail on CPOA’s website:

The information complained about is the anonymous e-mails critical of Plaintiff’s performance as chief of police that were made available through the website. Defendants claim that each of these e-mails was posted directly to the website by the anonymous author and that Defendants had no control over who posted or what was posted on the website. Plaintiff has offered no evidence to the contrary. All of the e-mails presented to the court were addressed to the mayor, members of the Corvallis city council and/or radio talk show host Lars Larson and were written by individuals under fictitious names. There is no evidence that the e-mails were forwarded to Defendants prior to being posted to the website or that Defendants had any control over the information contained in the e-mails that were posted on the website. The information complained about by Plaintiff was provided solely by an information content provider other than Defendants.

Playing right into the defendants’ hands, Roskowski asserted that the Defendants were liable for “publishing” the emails. Not unexpectedly, Magistrate Judge Ashmanskas rightfully concluded that “[p]laintiff is clearly treating Defendants as publishers or speakers of the information. Defendants qualify for protection under [Section 230] and can not be held liable for any defamatory information posted by others on its website.”

In a memorandum opinion filed last week (designated as not appropriate for publication/non-precedential), a Ninth Circuit panel affirmed Judge Anna Brown’s grant of summary judgment in favor of the defendants (which was granted after Judge Brown adopted Magistrate Ashmanskas’ Findings and Recommendation quoted from above). Citing Section 230 and several Ninth Circuit decisions, the panel ruled that Roskowski did not demonstrate that CPOA itself made the subject postings, thus, “she cannot hold CPOA liable for the content of the postings.”

No surprises here. However, some of the language in the Magistrate’s F&C (which was left untouched by the District Court and the Ninth Circuit) concerns me. In fact, it would seem that with a few different (but innocuous) facts, this case could have gone the other way.

First, why is a federal magistrate relying upon a 2001 Washington state appellate court decision when reciting the Section 230 immunity framework?

Second, the F&C states that “[t]o qualify for protection under the Act, the interactive computer service . . . can not control the information provided in any way” (emphasis added). I think this is an overstatement. See, uh, Section 230 case law.

Third, in support of the aforementioned quotation, the F&C cites the district court decision in Carafano. While that opinion was affirmed by the Ninth Circuit, it was done so on other grounds, and contrary to the Ninth Circuit’s opinion, concluded that Section 230 immunity did not apply to the subject website. Why is the F&C citing this ruling?

Fourth, and perhaps most disconcerting, the F&C states that “[t]here is no evidence that the e-mails were forwarded to Defendants prior to being posted to the website or that Defendants had any control over the information contained in the e-mails that were posted on the website.” I already made my point about the ‘control’ issue, so I won’t address that again. But as for how the e-mails came to be published on the CPOA website, would it have made a difference if the emails had been faxed to the website owner, and then posted by the website owner on the website? I’m reminded of the Ninth’s Circuit Batzel decision, which was issued well before the Magistrate ruled here. Because in my example the emails would have been provided to CPOA in its role as a provider of an interactive computer service, I tend to think this indirect transmission route would not have made a difference for immunity purposes. Yet the F&C makes no reference to Batzel, and in fact suggests a different outcome would be appropriate under my example.

Bottom line, had CPOA posted material intended for the website, but that it had received via regular mail, or edited materials posted on the website to, say, remove the names of private citizens, it’s possible this case (at least as far as the Magistrate is concerned) would have come out differently.