Sixth Circuit: Section 230 is not Absolute

One of the first posts here summarized a federal district court decision involving The court dismissed plaintiff’s claims (all 14 of them) against the website, relying on both FRCP 12(b)(6) and Section 230.

On appeal, the Sixth Circuit affirmed the lower court’s dismissal, but on non-Section 230 grounds. I only mention it here because of a few lines in the opinion that strongly hint at how the panel viewed the district court’s application of Section 230:

Because we agree with the district court that Doe’s complaint failed to state a claim, we do not reach the question of whether the Communications Decency Act provides SexSearch with immunity from suit. We do not adopt the district court’s discussion of the Act, which would read § 230 more broadly than any previous Court of Appeals decision has read it, potentially abrogating all state- or common-law causes of action brought against interactive Internet services. We do not have before us any issue concerning the criminal liability of the parties or the voidability of contracts for sexual services. . . . [We] explicitly reserve the question of [Section 230’s] scope for another day.

To my knowledge this would have been the Sixth Circuit’s first foray into constructing Section 230. While it took a rain check, the panel clearly signaled to lower courts that it doesn’t consider the statute an absolute bar to all causes of action.

I’m not sure why the ruling noted the absence of any criminal liability or contract voidability issues. Presumably neither issue would have been quashed by Section 230. But then again perhaps I’m just a little rusty.


What I’ve been up to –

It’s been awhile since I last posted here, and for good reason. Going back to the summer of 2007 I’ve been developing an idea I’ve had about helping home buyers and sellers make more informed decisions when selecting a local real estate agent. Last month it came to fruition – Here’s the text of our launch announcement:

Consumer-centric Helps Prospective Chicagoland Home Buyers and Sellers Make More Informed Decisions When Selecting a Real Estate Agent

Chicago, IL – July 7, 2009 – Consumer-centric website, launching today in Chicagoland, helps prospective home buyers and sellers make more informed decisions when selecting a real estate agent.  The site lets consumers efficiently discover, evaluate and compare – on an apples to apples basis – competing local agents on the criteria most important to them, such as an agent’s track record (success stories, relevant statistics, etc.), price (commissions, rebates, etc.), specialties (first time buyers, short sales, REOs, etc.), local market knowledge, and over a dozen others.  Prospective home buyers and sellers can use to see how a referral stacks up against competing agents, and find other local agents that may offer better value, greater expertise, etc.

“I’m not a Realtor®, but I think it’s fair to say that none of the current “Find an Agent” websites appear to have been created with the consumer firmly in mind,” explained Chicago lawyer Michael Erdman, founder of  “The space has unfortunately become stagnant, to the detriment of both consumers and agents. will deliver some much needed innovation to the process of selecting a local real estate agent,” Erdman added. is unlike existing “Find an Agent” websites.  It does not restrict the number or types of agents that can join the site or appear in relevant search results, or attempt to match consumers with agents.  “Featured” placements and broker advertisements are not displayed in search results.  Consumers simply run a search, review the results, and choose whether to make direct contact with an agent.  They are not asked to pay a fee, register, provide personal information, navigate through multiple pages, or wait for an email in order to search the site or obtain results.

“Who you choose as your real estate agent can obviously make a big difference to your bottom line, end result, and overall experience when buying or selling real estate. helps prospective home buyers and sellers understand their choices and ask important questions when selecting an agent, something that is especially important in the current housing market,” stated Erdman.

For Chicagoland real estate agents, offers an opportunity to stand out from competing agents, and attract prospective home buyers and sellers that are looking for a local agent, by distinguishing themselves across a variety of categories that are important to consumers, and on a level playing field.

For additional information contact:

Michael Erdman
President & Founder

or visit

Features, pricing, availability and specifications set forth herein are subject to change without notice.

# # #

Bloomberg liable for United Airlines’ stock nosedive?

Interesting post today on one of Wired’s blogs (links to a recent post at The Volokh Conspiracy) relating to the potential applicability of Section 230 to Bloomberg’s “role” in United’s free fall earlier this week.

Lots of juicy issues here, but time constraints force me to simply take this opportunity to quickly vent on a longstanding pet peeve of mine.  Why don’t all “news” articles on the web contain a static publication date in or very near the article text?  I’m not necessarily sympathetic to all of Google’s positions on this matter, but one thing I will agree with is that I find it terribly annoying when I view a news article on the web, whether following a search or while browsing a media outlet’s website, and find myself struggling to determine when the article was written.  How difficult can it be for online publishers to get this right?  Maybe there is some SEO, advertiser and/or “staleness” issue out there that is beyond my comprehension.  But they should all take a backseat to including critical information such as a publication date when disseminating “news” articles.

Kudos to the New York Times, which in my experience not only consistently lets you know the date an article was published, but whether, when, and where the article appeared in the hard copy version of the newspaper.

*  *  *

A note to my faithful readers (if there are any of you left):  It’s been an unusually busy summer for me.  I won’t bore you with any of the details, but I do hope to get back on the horse here soon and resume regular postings.  If that proves to be impossible, I may accept the invitation (if it’s still outstanding when the time comes) of one of my favorite technology bloggers to submit occasional posts on his blog.  In the meantime, I hope you’ll continue to subscribe/stop by here.


Fifth Circuit issues its first Section 230 opinion

Last month the Fifth Circuit issued its first (to my knowledge) ruling that turned on Section 230. Affirming the lower court in Doe v. MySpace Inc., Circuit Judge Clement, writing on behalf of herself and Judges Garwood and Elrod, ruled that the statute protected MySpace from claims that it was negligent for not “instit[uting] and enforc[ing] appropriate security measures and policies that would substantially decrease the likelihood of danger and harm that MySpace posed to” the minor-plaintiff.

The minor had lied about her age, enabling her to create a public MySpace profile. A nineteen year old male MySpace user (“Pete”) subsequently discovered her profile and initiated contact with her. The minor eventually shared her phone number with Pete and agreed to meet him in person, at which time he sexually assaulted her. Plaintiffs believe that had MySpace been utilizing age verification software, the assault never would have occurred.

The Court ruled that the plaintiffs’ negligence claims are barred by Section 230,

notwithstanding [plaintiffs’] assertion that they only seek to hold MySpace liable for its failure to implement measures that would have prevented [the minor] from communicating with [her assailant]. Their allegations are merely another way of claiming that MySpace was liable for publishing the communications and they speak to MySpace’s role as a publisher of online third-party-generated content. . . . [plaintiffs’] negligence and gross negligence claims are barred by the CDA, which prohibits claims against Web-based interactive computer services based on their publication of third-party content.

Read here about MySpace’s commitment earlier this year to forty-nine state AGs to make the site safer for minors. owner back in court

I understand that earlier this week Ed Magedson and XCentric Ventures filed suit in an Arizona (Maricopa County) state court against Whitney Information Network and the law firm Rothstein Rosenfeldt Adler P A, as well as a number of individuals – Russell Whitney, Ronald Simon, Christopher Sharp, Shawn Birken, Scott Rothstein and Steven Lippman (Case Number: CV2008-011196).  I’m thinking it’s related to a dispute/suit Eric Goldman recently wrote about here and here, but unfortunately I’m not going to have a chance to dig into this one anytime soon (sorry for the radio silence as of late by the way).

Anybody care to enlighten us?