WASHINGTON -- The $30 million libel suit brought this week by White House aide Sidney Blumenthal against America Online challenges one of the most sacred tenets of the information superhighway: that an Internet service provider cannot be held responsible for content provided by third parties.
That rule would seem to be enshrined in law. Section 230 of the Telecommunications Act of 1996 states that "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another content information provider." But William McDaniel, Blumenthal's lawyer, believes that law, which was inserted into the Telecommunications Act specifically to protect Internet service providers against libelous statements that may crop up in chat rooms, does not protect AOL in this case.
The other defendant in Blumenthal's suit is Internet gossip columnist Matt Drudge, who wrote on Aug. 10 in his widely read Drudge Report that Blumenthal, a senior advisor to President Clinton, "has a spousal abuse past that has been effectively covered up." Drudge quoted one anonymous source as saying the story of Blumenthal's alleged wife-beating "has been in circulation for years." He quoted another unnamed source as saying that "there are court records of Blumenthal's violence against his wife."
Blumenthal, who has been married to Jacqueline Jordan Blumenthal, also a White House aide, for more than 21 years, says he has no history of wife-beating, no such story about him has ever been in circulation and that no such court records exist. He says Drudge, who has boasted publicly of his practice of posting unsubstantiated rumors, made no effort to check whether the wife-beating allegations were true. Moreover, his suit complains that Drudge is an admitted "Clinton hater," charging the columnist wrote his allegations with the malicious intention to embarrass the administration.
While Drudge's vulnerability to prosecution is clear, AOL's is a bit murkier. Noting that AOL distributes the Drudge Report to its 8.6 million subscribers, McDaniel says that the contractual arrangement between AOL and Drudge makes him much more than just "another content information provider."
"There is a strong case to be made that Drudge is, in fact, an AOL employee and that AOL is therefore liable for his torts," McDaniel told Salon.
Exhibit A in Blumenthal's 137-page complaint, filed Wednesday in the Washington, D.C., federal court, is a July 15 AOL press release stating: "AOL Hires Runaway Gossip Success Matt Drudge." The press release goes on to say that Drudge and America Online have "teamed up," adding that their arrangement "opens up the floodgates to an audience ripe for Drudge's aggressive brand of reporting" and his "take-no-prisoners newsbreaks."
In a telephone interview, AOL spokeswoman Wendy Goldberg rejected Blumenthal's complaint and said AOL felt confident the court would recognize the protections provided under the Telecommunications Act. "As soon as we were alerted to the issue of Mr. Drudge's column, we acted quickly and responsibly to remove it from our service," she told Salon, reading from a prepared statement. "We've seen Mr. Blumenthal's complaint and believe it has no merit."
AOL hopes that its success in beating previous libel suits will provide legal precedent. Earlier this year, AOL was sued in two separate complaints by individuals who claimed they had suffered damages after Internet users maligned them in AOL chat rooms. In both cases, courts dismissed the suits, citing the protections afforded AOL under Section 230 of the Telecommunications Act.
As for the AOL press release trumpeting Drudge's hiring, AOL is likely to argue that the communiqui was hyped for commercial purposes. The company will probably argue that Drudge is, in fact, an independent contractor and that their contractual arrangement is no different than those AOL has with other content providers, like the New York Times.
But McDaniel says he's ready for that argument. Even if the court determines that Drudge is an independent contractor, he says AOL still may be liable for his sins. Under the law, "If you hire an independent contractor to cut down a tree in your yard and he drops the tree onto your neighbor's house, you are not liable," he says. "But if that independent contractor has a known reputation for dropping trees onto other people's houses and you hire him anyway, and then he flattens your neighbor's house, you are liable.
"When AOL hired Mr. Drudge, they knew he had a reputation for dropping trees through people's houses, journalistically speaking," McDaniel continued. "In fact, that's why AOL hired him."
Mike Godwin, an expert on telecommunications law at the San Francisco-based Electronic Frontier Foundation, predicts that line of argument is doomed to failure. "How many libel judgments does Matt Drudge have against him? I would say the number is zero," he said. "The fact that he is known to play fast and loose with the facts is not enough to spread liability to AOL. It might be a better world if it did, but it would also have a chilling effect on free speech. Not to mention the fact that there would be a lot fewer AOLs around."