Paul Watler's Podcast: Milo v. Martin: First Texas Case Applying Section 230

Paul Watler's Podcast: Milo v. Martin: First Texas Case Applying Section 230

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A watchdog website that promised the “unfiltered truth” about local politics in Conroe was immune from a defamation claim in the first Texas appellate court application of a federal Internet free-speech statutory provision.

On April 29th in Milo v. Martin, the Ninth Court of Appeals in Beaumont held that section 230 of the Communications Decency Act of 1996 prevents a court from imposing publisher liability on a website operator for allegedly libelous content contributed by readers. The Ninth Court upheld the district court’s grant of the website’s no-evidence summary judgment motion.

The Beaumont appellate court rejected the argument by the libel plaintiffs that the website lost its federal statutory immunity by promoting the accuracy of the website’s content. But the court was less than enthusiastic in applying the express preemption provision of the statute.

Milo v. Martin arrives in the midst of rising concern over unfiltered reader comment sections of news websites. A columnist for the First Amendment Coalition labeled the “Comments” sections of many websites a “cesspool.” Often web comments degenerate into hate speech and personal attacks. Indeed, the justices of the Ninth Court noted their unease that the federal statute allows website operators to turn a blind-eye to venomous comments by anonymous posters.

Section 230 provides that no provider of an interactive computer service shall be treated as a publisher of any information provided by another content provider.

Although Congress enacted the statute nearly 15 years ago, the Ninth Court found that no reported Texas opinion has addressed whether section 230 pre-empts Texas defamation law relating to situations involving Internet service providers who provide access to allegedly defamatory third-party created content. The opinion noted that federal courts have broadly applied section 230 to protect interactive computer services from suits for injury based on third-party content.

One federal decision in 2008 — Fair Housing Council of San Fernando Valley v. Roommates.com — permitted liability where a website “developed” the posts by materially contributing to the alleged defamatory content. The plaintiffs in Milo v. Martin sought to exploit this opening in section 230. The court noted that the plaintiffs contended that by the website’s promise of delivering the unfiltered truth, it had vouched for the truthfulness of the third-party statements and thereby developed the material. The Beaumont court rejected the argument, finding that nothing on the “Guest Book” page of the site indicated to a reasonable reader that the Watchdog had investigated the information contained in the posts.

The Ninth Court noted that Congress had enacted the statute “regardless of the grave potential that false and defamatory posts can have on the lives of citizens”.

“We note our concern that section 230 does not provide a right to request a website’s owner to remove false and defamatory posts placed on a website by third parties, and does not provide the injured person with a remedy in the event the website’s owner then fails to promptly remove defamatory posts from its site,” the court wrote.

The Ninth Court is but the latest of many, outside Texas, to discuss problems with the breadth of section 230. Whether Congress heeds the concerns remains to be seen.

Jackson Walker partner Paul Watler regularly provides podcasts for Texas Lawyer. An archive of previous First Amendment podcasts can be found here.