Sunday, July 28, 2013

Defamation and the NFL Cheerleader: Gossip Website found liable for $338,000

Sarah Jones - former Bengal Cheerleader
Writers and bloggers need to be keeping an eye on the case of a former Cincinnati Bengals cheerleader who won a $338,000 judgment against, a website most recently known for exposing (pardon the expression) the latest Anthony Weiner photos. 

The case revolves around Section V of the Telecommunications Act of 1996, commonly known as the Communications Decency Act, and specifically Section 260.  Provisions of that Act provide immunity to website operators for content posted by third parties and not edited by the website.

Traditional common law rules of defamation held that a person who republishes a libelous statement is equally culpable with the person who made the original statement.  With the growth of the Internet and spread of electronic communications such as message boards,  internet providers such as Yahoo, Comcast, AOL and AT&T ran to Congress to obtain an exemption.  They did not want to be held responsible for content that people posted on the internet.

Congress agreed, and in 1996 enacted Section 260 of the Federal Communications Decency Act.  The provision granted immunity to internet content providers for content posted by others, so long as the provider did not select or edit the content.  In other words, as long as the provider was simply providing the mechanism of the communication, and had no part in the content, it was immune from defamation liability.

Enter our fair cheerleader and  In 2009, published two posts from anonymous contributors asserting that  Sarah Jones, a school teacher and cheerleader for the NFL's Cincinnati Bengals, had sex with every player on the Bengals, and in a separate post, that she had two sexually transmitted diseases.  Under common law established long before the internet - or electricity for that matter - statements attributing unchaste behavior to a woman (but not a man) or a "loathsome disease" (old speak for sexually transmitted disease) to anyone, are considered defamatory per se - that is, by the statement itself without any proof of damages.

The Arizona judge denied a motion to dismiss the case based on Section 260, finding that, through its operator Nik Richie, had selected the posts for publication and had then added comments to the post, thereby taking it outside the protection of federal law.

The case was previously tried in January, 2013, resulting in a hung jury.  This recent jury deliberated more than 10 hours before finding Nik Richie had acted with malice, and awarding damages of $338,000.  

An additional issue was presented by Ms. Jones well-publicized conviction for her sexual relationship with an underage former student.  In criminal proceedings in Ohio, Ms. Jones avoided jail but was banned from ever teaching again.  In a trial strategy move, Ms. Jones sought damage only until February 1, 2011, apparently the date she was charged for her conduct with the former student.  Her attorney argued (apparently successfully) that the jury should ignore Ms. Jones conduct after that date.

Lawyers for are promising an appeal on the judge's refusal to dismiss the case on the basis of statutory immunity under the Communications Decency Act.

NOTE:  Ms. Jones, now 28, and her former student, now 18, have announced plans to marry.  Truly, "There are more things in heaven and earth, Horatio, Than are deamt of in your philosophy."

photo credit: <a href=""></a> via <a href="">photopin</a> <a href="">cc</a>

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