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The 'Coarse Conversation' of Tucker Max: Are Traditional Concepts of Defamation Law Dead?

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By: Jonathan Frieden

In June, the United States District Court for the Eastern District of Pennsylvania ruled that Section 509 of the Communications Decency Act (CDA), codified at 47 U.S.C. § 230, bars a defamation claim based upon anonymous postings to a message board not authored by the defendant. The defendant in the case of DiMeo v. Max was Tucker Max, a self-described "aspiring celebrity" and operator of the website (www.tuckermax.com) which hosts the message board at issue in the suit.

After a New Year’s Eve party hosted by plaintiff Anthony DiMeo III’s public relations firm ended prematurely, over-attended and under-supplied, angry partygoers and others took to the Tucker Max message boards to comment upon the party and its host. The message board posts, "many of them [found by the court to be] laden with vulgarity", criticized the event, ridiculed DiMeo, or expressed outright animosity toward him. DiMeo filed suit, alleging that some of the posts constituted defamation. The matter was removed to federal court, where Max filed his motion to dismiss.

In granting Max’s motion, the District Court held that the content of the offending posts constituted "information provided by another information content provider [other than Max]," despite the fact that Max selected and edited posts which appeared on the website. As such, DiMeo’s defamation claim was barred by Section 509 of the CDA. Though the site "could be a poster child for . . . vulgarity," the court found that the freedom to communicate anonymously over the Internet should be protected, even in the case of "the coarse conversation that, it appears, never ends on tuckermax.com."

Traditional concepts of defamation law may, indeed, be dead if this court’s interpretation of the CDA is widely applied. The CDA prevents most victims from seeking redress from the operators of websites containing defamatory statements and it is difficult, if not impossible, to identify an anonymous Internet source of defamatory statements.

Tens of millions of Americans communicate regularly on the Internet. In many instances, they make statements which they would not make absent the anonymity provided by this new communications medium. Some of those statements are untrue and have the potential to unreasonably and severely harm another person. Fairness and traditional legal principles require that a person harmed by such statements have some way to address that harm.

The American legal system has for decades successfully balanced freedom of speech with the rights of individuals to be free from the harm caused by defamatory statements. Now, our legal system must balance these concerns in the context of the Internet, a global communications mechanism which reaches hundreds of millions of people in a fairly unregulated environment.

The anonymity afforded by the Internet encourages the free exchange of ideas in a way that no other medium can, encouraging discourse that ultimately benefits society on a multitude of levels. However, that same anonymity is subject to abuse and the Internet’s worldwide reach increases the potential audience for, and damage caused by, defamatory statements. Balancing these two interests is imperative.

Jonathan D. Frieden is a principal of Odin, Feldman & Pittleman, P.C., a law firm in the Washington, D.C. metropolitan area. His practice includes the litigation of intellectual property matters and other complex commercial disputes and the counseling of e-commerce businesses in a variety of industries. He is admitted to practice law in the Commonwealth of Virginia and runs the E-Commerce Law blog, a regularly updated discussion of news, trends, and legal issues affecting e-commerce businesses.

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