A case from the U.S. District Court for the Eastern District of Kentucky has gotten a fair amount of attention from the local Cincinnatimedia because it involves a former Ben Gal cheerleader. But aside from the plaintiff’s job, the case raises some potentially troubling legal issues. Sarah Jones, the former Ben Gal was the subject of some really unflattering comments posted on a Web site called “thedirty.com.” According to the posts, Ms. Jones slept with every Bengalfootball player and probably contracted two types of STDs from a former boyfriend. Not surprisingly, Ms. Jones brought a libel lawsuit. But she filed it against the operator of the Web site, Nik Richie. And that complicated things a bit. Section 230 of the federal Communications Decency Act provides that the operator of an interactive Web site is not deemed the publisher of comments posted on the Web site by third parties. And if the operator isn’t the publisher, he can’t be liable for defamation. But Judge Bertelsman, the judge in the case, decided that Richie wasn’t eligible for the CDA protection because it “specifically encourage[d] the development of what is offensive about the content.” The judge felt that the very name of the site – “thedirty” encourages the posting of “dirt” about the subjects of the postings. The judge also felt that the fact that Richie added comments to the postings contributed to the development of the offensive content. For example, following the posting about Ms. Jones alleged STDs, Richie added the comment “why are all high school teachers freaks in the sack.” But the court found the most significant fact for its analysis was this comment from Richie: “I love how the Dirty Army has war mentality.” According to the court, “[o]ne could hardly be more encouraging of the posting of such content than by saying to one’s fans (known not coincidentally as “the Dirty Army”): ‘I love how the Dirty Army has war mentality.’” I get that Richie is a punk. And I get why the court was unsympathetic. But this holding goes too far and its precedent could cause more upstanding sites to lose the valuable protection offered by Section 230. The key analysis under Section 230 should be who created the content – if the site creator didn’t create it, then 230 should apply. The notion that the site operator created content supplied by a third party because he created a site conducive to that type of content shifts the responsibility in a fashion that directly contradicts the law. If a newspaper site encourages its online readers to “let us know which candidate you don’t like” is that encouraging and therefore creating offensive content? What if I believe politicians tend to shade the truth to advance their own interests and I set up a blog to advance that notion? Am I at risk of losing Section 230 protection because I ask my readers to supply examples to prove my point? I don’t think I should be, but Judge Bertelsman’s opinion would certainly give some disgruntled politician some encouragement. And the frustrating thing is, the court could have found that Richie blew the Section 230 protection by virtue of the content he actually created. His comment about “all high school teachers are freaks in the sack”, when read in context with the prior posting, would in itself support a libel claim. And since Richie admittedly created that content, there’d be no Section 230 protection anyway. There’s a cliché about hard facts making bad law. This may be an example.