Thankfully, Section 230 Protects NBC From Its Monumental Stupidity

What NBC Universal was thinking when it decided to not merely point to Teri Buhl, but attribute credibility to her, may never be known, now that dismiss of defamation claims against Buhl, and by extension, NBC, has been affirmed on appeal.  And it shows the vitality of the Safe Harbor provision, even in the face of such dubious conduct.

Wait. Teri Buhl?  This Teri Buhl?  Yup. That’s the one.  The Teri Buhl of “publish my twits and I’ll sue you” fame.  Because her twits are special.  After all, she is an “investigative journalist,” and it doesn’t get much cooler than that.  To be fair, not only did Buhl think well of her mad investigative journalist skillz, but NBC did too.

In December, 2011, and January, 2012, Teri Buhl published several online news articles containing defamatory statements about the plaintiff on her website. On January 6, 2012, John Carney, a senior editor for, published an online article entitled, ‘‘The Sex and Money Scandal Rocking Hedge Fund Land’’ on, a website owned and operated by the defendant. Carney’s article referred to Buhl as a ‘‘veteran financial reporter’’ who ‘‘knows her way around the Connecticut hedge fund beat,’’ and urged viewers to read Buhl’s articles by stating, ‘‘I don’t want to steal Buhl’s thunder, so click on her report for the big reveal.’’ The word ‘‘report’’ was a hyperlink to Buhl’s online articles containing the defamatory statements.

So while it was Buhl who wrote the “defamatory statements,” it was Carney who promoted Buhl’s post, who lent the credibility of CNBC to her words by wrapping her up in a “knows her way around” ribbon, and gave her the platform so that her “defamatory statements” would be read by a great many rather than the twelve plus her cat that might otherwise see Buhl’s posts.

And the court affirmed dismissal under Section 230.

The interesting aspect of the argument relates to Carney’s involvement in Buhl’s post, and this is a matter that a great many “content providers” fear.  For example, if bloggers actively clean up the mess in their comments, do they become responsible for the content or are they still protected by Section 230’s safe harbor?  Or if they link to content and rely on it to provide further comment, are they assuming liability for the original content?

We conclude that the meaning of ‘‘development in part,’’ as defined in case law interpreting the language of § 230 (f) (3), covers conduct ranging from ‘‘material contribution’’ to ‘‘solicitation’’ of the information at issue.

The plaintiff has not alleged any actions,  individually or in combination, from which to conclude that the defendant ‘‘materially contributed,’’ ‘‘prompted,’’ ‘‘specifically encouraged,’’ ‘‘apparently requested,’’ or ‘‘actively solicited’’ the defamatory statements in Buhl’s articles. Rather, the actions alleged by the plaintiff are fairly characterized by him to have ‘‘amplified,’’ ‘‘endorsed,’’ and ‘‘adopted’’ those statements.

It is immaterial whether the defendant amplified, endorsed, or adopted the defamatory statements, because the defendant played no role in their composition.(Emphasis added.)

This is a critical distinction, and without it, it would be impossible for content providers, including bloggers, to allow anyone other than themselves to express themselves online.  Let’s face it, I’m not taking a hit for defamation so that you can write whatever craziness pops into your heads.  While I am fully responsible for the posts I create, I will not take responsibility for yours.

And for anyone who wants the internet to remain a place where interactive speech exists, where you can tell the New York Times to bite you, or tell me that I dress funny, then the safe harbor of Section 230 is critical.

While there are some who contend that its safe harbor is too safe, too protective of nutjobs, liars and haters, and must give way to a means of stopping content providers from allowing anything by making the provider culpable for the words, images, thoughts and ideas of others that displease people, the result will be an internet that looks nothing like the one that now exists.

There is no question that harm happens, and that harm is real.  The problem is that no one has as yet come up with a mechanism that would prevent the harm without chilling anything that would remotely cause liability to those of us who provide a platform for expression.  It has nothing to do with how defamatory (or not) Teri Buhl’s post was, or the terrible, horrible (insert adjective of choice) damage caused by the wrong.  There are very real, very harmful wrongs committed. Yes, there are trivial wrongs as well, which are hyped up by breathless whiners, but that doesn’t diminish the real ones.

And yet, without the full panoply of protections offered by Section 230, there is no way the internet can continue to serve as a platform for expression without risk of massive liability.  Should someone come up with a brainstorm that would magically only stop bad stuff without chilling unbad stuff, I’m all ears.  Until then, even a dumbass like Carney needs to be protected for bolstering the cred of someone as unworthy as Buhl, because that’s how the internet happens.

H/T Eugene Volokh at WaPo Conspiracy

22 thoughts on “Thankfully, Section 230 Protects NBC From Its Monumental Stupidity

  1. Wheeze The People™

    You dress funny, talk funny, look funny, and are funny — funny like an insane clown, posse . . .

    God bless Section 230, one of the few more recent and significant laws that would probably please the Founding Fathers . . .

    1. SHG Post author

      But for 230, the internet would be a handful of pundits with advertisements on the sidebar and a digital shopping mall. Wait, then we could all go back to living real life…

      1. Wheeze The People™

        But you have to admit, the “virtual” life is more interesting than “real” life, as in, “May you live in interesting times . . .”

  2. Catherine Mulcahey

    Once again we are stuck with the fact that the darn old First Amendment protects nutjobs, liars, haters and people who dress funny.

    1. Marc Randazza

      Please remember that this is not a First Amendment issue. Section 230 is a federal statute. The First Amendment is there to protect the author’s rights.

      Section 230 was a congressional decision. Fact, Congress wasn’t even intending to do what section 230 became. Will Congress was really trying to do was to ban indecency from the Internet. But, certain portions of the communications decency act was struck down as unconstitutional, and what we had left was section 230.

      You can argue that section 230 is a great thing. You can argue that it promotes free-speech principles. But, you will lose points on the exam if you try to say that is a First Amendment protection.

      1. SHG Post author

        Yes, but you can be so humorless when grading exams. Next thing is that we can’t do the bluebook in crayon. Anything else to make people cry?

        1. Catherine Mulcahey

          I only cry when it will give me an advantage over opposing counsel. Randazza doesn’t scare me because I passed Con Law in 1974 so I’m grandmorthered in. And I’m guessing that if we didn’t have the Amendment, we never would have got to the statute.

          1. SHG Post author

            While I appreciate Randazza’s purpose, since there is constant invocation of 1st Amendment when it’s not applicable, I also appreciate your point that absent 1st Amendment, government regulation of speech could run rampant, and 230 is one of those sections that is a bulwark against the impairment of speech.

      2. Catherine Mulcahey

        So “certain portions of the communications decency act was (sic ’em) struck down as unconstitutional, and what we had left was section 230.” How did that happen?

        1. Jim Tyre

          See Reno v. ACLU, 521 US 844 (1997). On the day CDA became law, ACLU and others filed a case challenging the constitutionality of certain provisions of CDA (not all) before a special three judge district court. The district court held those provisions to be unconstitutional. In the first “Internet” case it decided, SCOTUS affirmed. 230 was not one of the challenged provisions, so the SCOTUS decision had no effect on it:

          At issue is the constitutionality of two statutory provisions enacted to protect minors from “indecent” and “patently offensive” communications on the Internet. Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three-judge District Court that the statute abridges “the freedom of speech” protected by the First Amendment.

          1. SHG Post author

            I can’t speak for Catherine, but I would have preferred this comment if it was written in comic sans. Just sayin.

          2. MuffKnuckle

            Clear, accurate and incredibly boring. There’s nothing more enjoyable than a blog comment that’s more suited to a footnote in a law review article.

            Lighten up, Jim. It’s a fucking blog.

            1. Jim Tyre

              A footnote hater could never appreciate the miracle that is 123 U.Pa.L.Rev 1474 (1975).

  3. Tom

    The wapo story says the libel suit against Buhl was dismissed or withdrawn. I think your post is wrong when you write Buhl publised defaming news. That was never proven in court right? I read the decision as Buhl and NBC won? She is actually a pretty well known journalist and respected for reporting on finance fraud

    1. SHG Post author

      The appellate court’s opinion refers to Buhl’s content as defamatory, but offers no explanation for its characterization. I merely repeat it. In footnote 1 of the opinion, it says that Buhl “was named a defendant in the complaint, but subsequently, the plaintiff withdrew the action as against her.” The reason isn’t given for either, and since this isn’t a post about the content at issue in the case, it’s immaterial.

      As for your reading the decision, you are wrong. NBC won. Buhl did not, because she was no longer a defendant, but would not have won because she would not have been protected by Section 230. Similarly, what was “proven in court” is immaterial. Perhaps she settled. Don’t know. Doesn’t matter. And as to whether she’s “actually a pretty well known and respect journalist,” your opinion as an unknown, pseudonymous, first time, here-to-try-to-rehab-Buhl’s-reputation commenter doesn’t make you particularly persuasive.

      Instead reflects just the opposite, that Buhl has shills trolling the internet to try to salvage her besmirched reputation by putting in garbage comments like yours on her behalf. Shill commenting is frowned upon. On the other hand, it appears that there are a great many others who do not think much of Buhl, but rather take the view that she’s a nutjob.

      Based upon her twitter bio, that her twits aren’t publishable, the nutjob faction seems to have a far better argument. If she’s paying you to do this, you should give her a refund.

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