1 To provide some brief historical context for the Court, www.DirtyScottsdale.

com
2 was initially created to provide a forum for Mr. Richie to express humorous satirical
3 commentary and criticism based on his perception of moral and social decay in
4 Scottsdale’s nightlife and club scene. When the site first began, Mr. Richie authored and
5 posted his own comments which were often focused on lampooning “fake” (a/k/a “dirty”)
6 people living in Scottsdale colloquially referred to as “$30k millionaires”. This is a
7 derogatory term used to refer to young people (usually males in their early 20s) who live
8 far beyond their financial means—driving expensive cars they cannot afford and living a
9 lavish lifestyle often funded by maxed-out credit cards. In addition to his criticism of this
10 lifestyle, Mr. Richie also published commentary and criticism of a wide variety of topics
11 including, but not limited to: “beer-bong-chugging athletes, puking co-eds, drunken
12 drivers and provocatively posing clubbers … .”
13 Mr. Richie’s brutally honest sense of humor struck a nerve with his viewers and
14 the site became incredibly popular literally overnight. Within a short period of time,
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15 www.DirtyScottsdale.com expanded nationwide, eventually growing to cover more than

16 50 different U.S. cities and more than 20 cities in Canada. In the process, the site adopted
17 a more geographically neutral name—www.TheDirty.com—and Mr. Richie (who initially
18 kept his true identity a secret) gained significant fame if not infamy. In January 2009 the
19 Arizona Republic newspaper named Mr. Richie one of the top ten most fascinating people
20 of 2008, noting, “what makes him interesting is that his site has prompted a dialogue
21 about public and private space and about what is and is not celebrity.”
22 http://www.azcentral.com/ent/calendar/articles/2009/01/09/20090109toparizonans-
23 richie.html (visited April 13, 2011).
24 As the site has grown, its focus and format has changed. Among other things, Mr.
25 Richie no longer creates every post that appears on the site. DSOF ¶ 4. Rather, users are
26 now permitted to “submit dirt” which can include news, photos, video or text, and users
27 can post their own comments about material submitted by others. DSOF ¶ 5. The
28 submission form provided by the site is 100% content neutral; it does not ask users to post
2
MOTION FOR SUMMARY JUDGMENT
CASE NO.: 2:11-CV-00074-SRB
 1 anything about any particular individual, nor does the site suggest what the author should
2 say. The only instructions given by the site are as follows: “Tell us what’s happening.
3 Remember to tell us Who, What, When, Where, Why.” DSOF ¶ 6.
4 As part of the submission process, users are asked to enter a “title” for their
5 submission, along with basic information about the material they are submitting.
6 Specifically, users are asked to identify the “City”, “College”, and “Category” for their
7 submission. DSOF ¶ 7. In terms of categories, the user is required to pick from a list of
8 more than 40 different options provided by the site which include: “I HAVE NO IDEA”,
9 “Business”, “News”, “Spring Break” and “Would You?” DSOF ¶ 8.
10 This last category—“Would You?”—is generally understood to apply to requests
11 for Mr. Richie to express an opinion as to whether he would be romantically interested in
12 the person submitted; e.g., “Would you date this person?” DSOF ¶ 9. As part of his
13 intentionally hyperbolic satirical process, Mr. Richie responds “NO” to nearly every such
14 submission, regardless of whether the individual submitted is an attractive celebrity,
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15 supermodel, actress, athlete, etc., or simply the girl next door. DSOF ¶ 10.
16 Once a user submits a post to the site, in most cases Mr. Richie will briefly review
17 it and remove certain types of information which may be unduly offensive (i.e., threats of
18 violence, profanity, racial slurs, etc.), but he not does fact-check user submissions for
19 accuracy. DSOF ¶ 11. In addition and as a general rule, Mr. Richie will normally redact
20 some portion of any first/last names appearing in user-submitted posts (e.g., the name
21 “David Gingras” might be redacted to read: “David ***gras”). DSOF ¶ 12. This is done
22 to provide some measure of privacy to the individual depicted. DSOF ¶ 13.
23 This case arises from a single post on www.TheDirty.com about the Plaintiff
24 which was submitted to the site on August 10, 2010. DSOF ¶ 14. According to her
25 Complaint, Ms. Dyer alleges the post was submitted by her ex-boyfriend, non-party
26 TOMMY DUECKER (“Mr. Duecker”). DSOF ¶ 15. In short, Mr. Duecker’s post
27 (quoted verbatim in ¶ 9 of the Complaint) alleges that Ms. Dyer gave him “the clap”
28 (gonorrhea) while she was “sleeping around” with Mr. Ducker and another individual at
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MOTION FOR SUMMARY JUDGMENT
CASE NO.: 2:11-CV-00074-SRB
 1 the same time. DSOF ¶ 16. Ms. Dyer’s full name is not used in the post (it was redacted
2 to read “Danie*le D***r”), but the post is accompanied by two photos depicting Ms. Dyer
3 posing in front of a mirror wearing a bikini. DSOF ¶ 17.
4 Because Mr. Duecker’s post was submitted in the category, “Would You?”, Mr.
5 Richie posted a response which read as follows: “No, it looks like she just had a baby, and
6 if a girl is willing to take 2 guys on then I suggest you use a rubber.” DSOF ¶ 18. Based
7 on Ms. Dyer’s request, Mr. Duecker’s post was subsequently removed. DSOF ¶ 19.
8 This action was filed on Jan. 10, 2011. In her Complaint, Ms. Dyer alleges,
9 “Defendant [Dirty World] routinely permits and/or encourages contributors to its web site
10 to make defamatory statements about third parties. In this instance, Defendant not only
11 encouraged defamatory statements to be made about Plaintiff, Defendant directly
12 participated in and contributed to the defamatory statements.” Compl. ¶ 5 (emphasis
13 added). However, as they relate to the material facts of this case, these allegations are
14 completely false and Ms. Dyer has no evidence whatsoever to support them.
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15 Specifically, before Mr. Duecker’s post was submitted to the site in August 2010,
16 Mr. Richie had never met, spoken to, or otherwise communicated with either Mr. Duecker
17 or Ms. Dyer. DSOF ¶ 20. In fact, Mr. Richie has never had any contact of any kind with
18 Mr. Duecker or Ms. Dyer. DSOF ¶ 21. In addition, other than generally permitting users
19 to post comments and submit material on any topic they choose, Mr. Richie did nothing to
20 encourage Mr. Duecker to submit the post concerning Ms. Dyer, nor did Mr. Richie
21 materially change any part of Mr. Ducker’s post. DSOF ¶ 22.
22 All of these facts are undisputed. As such, the disposition of this case is purely a
23 matter of law. As explained herein, Defendant is entitled to summary judgment for two
24 separate reasons. First, to the extent that Defendant created any statements about the
25 Plaintiff, these statements are non-actionable expressions of opinion which are fully
26 protected by the First Amendment regardless of their offensive nature. Second, to the
27 extent that Plaintiff’s claims seek to impose liability on Defendant for material created by
28 a third party, her claims are barred by 47 U.S.C. § 230(c). Each point is explained infra.
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CASE NO.: 2:11-CV-00074-SRB
 1 II. ARGUMENT
2 As a starting point, it should be noted that both causes of action in Plaintiff’s
3 Complaint—public disclosure of private facts and false light invasion of privacy—appear
4 to be based on common law. However, “[t]here is no federal general common law[]”
5 Martin ex rel. Heckman v. Midwest Exp. Holdings, Inc., 555 F.3d 806, 811 (9th Cir. 2009)
6 (quoting Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)), and
7 as a federal action based in diversity, this Court must apply the substantive state law of
8 Arizona. See In re Larry’s Apartment, L.L.C., 249 F.3d 832, 837 (9th Cir. 2001)
9 (observing, “federal courts sitting in diversity apply state substantive law…”) (citing
10 Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427, 116 S.Ct. 2211, 2219, 135
11 L.Ed.2d 659 (1996)).
12 The Arizona Supreme Court has recognized that causes of action for both false
13 light and public disclosure of private facts are available under Arizona law based on
14 Section 652 of the Restatement (Second) of Torts (1977). See, e.g., Godbehere v.
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15 Phoenix Newspapers, Inc., 162 Ariz. 335, 338, 783 P.2d 781, 784 (1989) (explaining
16 Arizona law recognizes both torts). To establish a claim for false light invasion of
17 privacy, a plaintiff is required to show that the defendant knowingly or recklessly gave
18 publicity to a matter that places the plaintiff in a false light that a reasonable person would
19 find highly offensive. Godbehere, 162 Ariz. at 340, 783 P.2d at 786; see also Hart v.
20 Seven Resorts, Inc., 190 Ariz. 272, 947 P.2d 846 (App. 1997). Several Arizona cases
21 have briefly discussed claims for public disclosure of private facts, see, e.g., Rutledge v.
22 Phoenix Newspapers, Inc., 148 Ariz. 555, 715 P.2d 1243 (App. 1986) (overruled on other
23 grounds by Godbehere, supra); Medical Laboratory Management Consultants v.
24 American Broadcasting Companies, Inc., 30 F.Supp.2d 1182 (D.Ariz. 1998), but none of
25 these cases have extensively analyzed the elements of that tort beyond simply quoting the
26 Restatement. See Pooley v. National Hole-In-One Ass’n, 89 F.Supp.2d 1108, 1111
27 (D.Ariz. 2000) (explaining in absence of Arizona law to the contrary, courts will follow
28 the Restatement).
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 1 For the purposes of summary judgment, the exact legal parameters of Plaintiff’s
2 tort claims are irrelevant. To the extent these claims arise from Defendant’s own non-
3 defamatory speech, they are subject to significant (and in this case, insurmountable) First
4 Amendment restrictions. In addition, to the extent these claims seek to impose liability
5 on a website operator (Dirty World) for material created by a third party (Mr. Duecker),
6 Plaintiff’s claims are barred as a matter of law by 47 U.S.C. § 230(c)(1).
7 a. Defendant’s Own Statements Are Non-Actionable Opinions
8 Protected By The First Amendment

9 Few rights in this country are as highly valued as those enshrined in our First
10 Amendment. Indeed, as the U.S. Supreme Court has repeatedly explained, “If there is a
11 bedrock principle underlying the First Amendment, it is that the government may not
12 prohibit the expression of an idea simply because society finds the idea itself offensive or
13 disagreeable.” Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342
14 (1989). This principle is not subject to arbitrary application based on matters of taste, nor
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15 does the First Amendment’s protection depend on whether a statement is benevolent or

16 offensive; “the point of all speech protection ... is to shield just those choices of content
17 that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay,
18 Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 574, 115 S.Ct. 2338, 132
19 L.Ed.2d 487 (1995).
20 On the contrary, “[T]he fact that society may find speech offensive is not a
21 sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives
22 offense, that consequence is a reason for according it constitutional protection.” FCC v.
23 Pacifica Foundation, 438 U.S. 726, 745, 98 S.Ct. 3026, 3038, 57 L.Ed.2d 1073 (1978)
24 (emphasis added); see also NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910, 102
25 S.Ct. 3409, 3424, 73 L.Ed.2d 1215 (1982) (“Speech does not lose its protected character
26 ... simply because it may embarrass others or coerce them into action”) (emphasis added);
27 Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 1788 (1971) (noting, “it is
28 nevertheless often true that one man’s vulgarity is another’s lyric.”)
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CASE NO.: 2:11-CV-00074-SRB
 1 Based on these principles, courts have consistently held that claims which seek to
2 punish a defendant for expressing his opinion raise serious First Amendment concerns:
3
It is well established that tort liability under state law, even in the context of
4 litigation between private parties, is circumscribed by the First Amendment
… . Thus, regardless of the specific tort being employed, the First
5 Amendment applies when a plaintiff seeks damages for reputational,
6 mental, or emotional injury allegedly resulting from the defendant’s speech.

7 Snyder v. Phelps, 580 F.3d 206, 217–18 (4th Cir. 2009) (emphasis added), aff’d, 131 S.Ct.
8 1207 (2011) (citing New York Times Co. v. Sullivan, 376 U.S. 254, 264-65, 84 S.Ct. 710,
9 11 L.Ed.2d 686 (1964); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 53, 108 S.Ct. 876,
10 99 L.Ed.2d 41 (1988)).
11 In this context, no matter how offensive or hurtful they may be, expressions of
12 opinion are simply per se non-actionable; “although there is no categorical constitutional
13 defense for statements of ‘opinion,’ the First Amendment will fully protect ‘statements
14 that cannot ‘reasonably [be] interpreted as stating actual facts’ about an individual.”
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15 Snyder, 580 F.3d at 218 (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 22, 110
16 S.Ct. 2695, 111 L.Ed.2d 1 (1990)). The Ninth Circuit has expressly adopted this logic:
17
The First Amendment protects “statements that cannot ‘reasonably [be]
18 interpreted as stating actual facts’ about an individual.” Courts have
extended First Amendment protection to such statements in recognition of
19 “the reality that exaggeration and non-literal commentary have become an
20 integral part of social discourse.” By protecting speakers whose statements
cannot reasonably be interpreted as allegations of fact, courts “provide[]
21 assurance that public debate will not suffer for lack of ‘imaginative
22 expression’ or the ‘rhetorical hyperbole’ which has traditionally added
much to the discourse of our Nation.”
23
24 Knievel v. ESPN, 393 F.3d 1068, 1074 (9th Cir. 2005) (quoting Milkovich, supra);
25 Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 128 (1st Cir. 1997)).
26 With these legal principles in mind, it is apparent that Defendant’s statements
27 about the Plaintiff are non-actionable expressions of opinion, not fact. As noted above,
28 the one single sentence created by Defendant reads as follows: “No, it looks like she just
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MOTION FOR SUMMARY JUDGMENT
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 1 had a baby, and if a girl is willing to take 2 guys on then I suggest you use a rubber.”
2 Obviously, Defendant’s assertion that Plaintiff “looks like she just had a baby” is a purely
3 subjective statement about Plaintiff’s physical appearance as reflected in the photos
4 posted by Mr. Duecker. This type of statement does not imply the existence of any other
5 “facts” beyond those shown in the photos of the Plaintiff. As such, the statement about
6 Ms. Dyer’s appearance qualifies as a “pure opinion” which is protected under the First
7 Amendment regardless of how rude or hurtful or offensive it may be. See Gardner v.
8 Martino, 563 F.3d 981, 988 (9th Cir. 2009) (recognizing, ““pure” opinions (those that do
9 not imply facts capable of being proven true or false) are protected by the First
10 Amendment … .”) (citing Milkovich, 497 U.S. at 19); Unelko Corp. v. Rooney, 912 F.2d
11 1049, 1053 (9th Cir. 1990) (same).
12 Apparently aware that an expression of opinion cannot be actionable unless it
13 implies the existence of additional undisclosed defamatory facts, Plaintiff’s Complaint
14 attempts to alter the facts of this case by directly misquoting Defendant’s statement,
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15 suggesting that Defendant made a specific factual assertion “that Plaintiff ‘is willing to
16 take 2 guys on’ … .” Compl. ¶¶ 12, 19 (emphasis added).
17 As noted above, Defendant made no such statement. Rather, the actual words used
18 by Defendant were: “No, it looks like she just had a baby, and if a girl is willing to take 2
19 guys on then I suggest you use a rubber.” DSOF ¶ 14. This clearly conditional
20 response—that if Plaintiff dated two men at the same time, then the use of a condom
21 would be advisable—does not imply the existence of any additional facts beyond those
22 contained in Mr. Duecker’s original post. Again, such an expression of “pure opinion” is
23 fully protected by the First Amendment, no matter how offensive it may be. See Rinsley
24 v. Brandt, 700 F.2d 1304, 1307 (10th Cir. 1983) (explaining, “the defense available in a
25 defamation action that the allegedly defamatory statements are opinions, not assertions of
26 fact, is also available in a false light privacy action.”)
27 Although no directly analogous Arizona cases exist with comparable facts, a
28 similar outcome was reached by the U.S. District Court in Stanley v. General Media
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MOTION FOR SUMMARY JUDGMENT
CASE NO.: 2:11-CV-00074-SRB
 1 Communications, Inc., 149 F.Supp.2d 701 (W.D.Ark. 2001). In Stanley, the plaintiffs
2 were two female high school students on spring break in Panama City, Florida who were
3 photographed participating in a contest which “required each participant to place a
4 blindfold over her eyes, unwrap a condom, and place the condom on a ‘demonstrator,’
5 which was a white plastic phallus.” Stanley, 149 F.Supp.2d at 704. One of the plaintiffs
6 won the contest and photos of both underage girls subsequently appeared in Penthouse
7 magazine along with a story about the event and suggestive comments about the
8 plaintiffs. See id.
9 The plaintiffs sued the publisher of Penthouse for a variety of state-law torts
10 including libel, intentional infliction of emotional distress, invasion of privacy-false light,
11 and invasion of privacy-appropriation. The defendants moved for summary judgment on
12 all claims, arguing that the facts of the case could not support a judgment in favor of the
13 plaintiffs on any theory. Without discussing any specific First Amendment issues, the
14 District Court granted summary judgment in favor of defendants on all claims, explaining:
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15
The Plaintiffs agree that the photo is an accurate, unmanipulated depiction
16 of themselves participating in the condom-fitting contest. In her deposition,
Stanley complained that the text referred to them as “skilled participants,”
17 in a “test of dedication and dexterity,” and characterizes the event as an
18 “ecstatic moment.” The plain text accompanying the photo can only
logically be understood as describing the events in the photo. The plain text
19 refers to the Plaintiffs’ skills at the game being played. Any game which
20 has a blind-folded participant to complete an activity using the small motor
skills required to unwrap a condom and place it on a phallus in a short
21 amount of time is certainly a game of dexterity and some degree of
dedication. Finally, from the expression on the Plaintiffs’ faces in the
22 photo, it appears to be an “ecstatic moment.” The editor’s comment in
23 italics cannot be reasonably understood to be a statement of fact. The photo
of Plaintiffs and the accompanying text published by Penthouse magazine is
24 not false. Therefore, the Defendants could not have intentions that the
25 public take false information as true, and this Court cannot find any
evidence of reckless disregard for the truth or actual malice. Defendant
26 General Media did not show the Plaintiffs in a false light.
27
28 Stanley, 149 F.Supp.2d at 707 (emphasis added); see also Barnhart v. Paisano
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 1 Publications, LLC, 457 F.Supp.2d 590 (D.Md. 2006) (summary judgment properly
2 entered in favor of defendant; defendant’s accurate publication of a photo depicting
3 plaintiff lifting her shirt could not support false light claim).
4 To be sure, Mr. Richie’s comment that in her self-portrait Plaintiff “looks like she
5 just had a baby” was rude, insulting, and probably highly offensive to her, but this is
6 simply irrelevant in a First Amendment context; “the fact that protected speech may be
7 offensive to some does not justify its suppression.” Carey v. Population Services, Intern.,
8 431 U.S. 678, 701, 97 S.Ct. 2010, 2024 (1977) (citing Cohen, supra). In addition, Mr.
9 Richie’s critical comments about Ms. Dyer’s appearance were intended to illustrate an
10 important point about a matter of serious public concern—the risk of participating in this
11 type of conduct; i.e., sending a nude, semi-nude or revealing self-portrait taken with a cell
12 phone camera. This practice is commonly referred to as “sexting”. See
13 http://en.wikipedia.org/ wiki/Sexting (visted April 14, 2011) (defining “sexting” as “the
14 act of sending sexually explicit messages or photographs, primarily between mobile
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15 phones.”) “Sexting” has become such a serious concern that in July 2010 the Federal
16 Bureau of Investigation issued a law enforcement bulletin seeking to raise awareness
17 about the dangers of the practice. See “Sexting–Risky Actions And Overreactions”;
18 http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/july-2010/
19 sexting (visited April 14, 2011). Having made the regrettable decision to engage in his
20 conduct, Ms. Dyer simply cannot object to Defendant’s criticism of her or her actions.
21 By the same token, Defendant’s response that “if a girl is willing to take 2 guys on
22 then I suggest you use a rubber” is plainly a non-actionable expression of Mr. Richie’s
23 opinion based on Mr. Duecker’s assertion that Ms. Dyer was dating two men
24 simultaneously. As a matter of law, this statement cannot support either of Plaintiff’s
25 claims no matter how “distasteful and repugnant” it may be to her. Synder, 580 F.3d at
26 226 (noting, “judges defending the Constitution ‘must sometimes share their foxhole with
27 scoundrels of every sort, but to abandon the post because of the poor company is to sell
28 freedom [too] cheaply.’”) (quoting Kopf v. Skyrm, 993 F.2d 374, 380 (4th Cir. 1993)); see
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 1 also Global Telemedia, Inc. v. Doe, 132 F.Supp.2d 1261, 1266–67 (C.D.Cal. 2001)
2 (explaining, “If the statements are opinion rather than fact, then they are not actionable.”)
3 In sum, there is no dispute that Defendant wrote this statement about Plaintiff and
4 posted it on www.TheDirty.com: “No, it looks like she just had a baby, and if a girl is
5 willing to take 2 guys on then I suggest you use a rubber.” Its minimal literary value
6 aside, as a matter of law this expression of opinion is protected by the First Amendment
7 and therefore neither of Plaintiff’s tort claims can succeed as to this statement. For that
8 reason, Defendant is entitled to summary judgment as to Plaintiff’s claims pursuant to
9 Fed. R. Civ. P. 56.
10 b. Defendant Is Not Liable For 3rd Party Speech
11 The single sentence created by Defendant is non-actionable for the reasons
12 expressed above. However, it is apparent that Plaintiff is not limiting her action solely to
13 Defendant’s own words. Rather, she is attempting to impute liability to Dirty World for
14 material created by a third party—Mr. Duecker. This theory fails as a matter of law.
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15 Prior to 1996, website hosts who took an active role in monitoring, editing, or
16 removing material created or posted by third parties could be subject to liability as
17 publishers of any material they did not remove. See generally Batzel v. Smith, 333 F.3d
18 1018, 1026–27 (9th Cir. 2003) (citing Stratton Oakmont, Inc. v. Prodigy Services Co.,
19 1995 WL 323710 (N.Y.Sup. May 24, 1995)). Realizing that that this rule created an
20 unacceptable disincentive for website hosts to refrain from taking any part in removing
21 offensive material, Congress enacted the Communications Decency Act, 47 U.S.C. §
22 230(c)(1) which provides in relevant part:
23
No provider or user of an interactive computer service shall be treated as the
24 publisher or speaker of any information provided by another information
content provider.
25
26 47 U.S.C. § 230(c)(1). Through the CDA, “Congress sought to remove disincentives to
27 self-regulation and ‘encourage service providers to self-regulate the dissemination of
28 offensive material over their services’ without fear they would incur liability as a result of
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 1 their trouble.” Austin v. Crystaltech Web Hosting, 211 Ariz. 569, 125 P.3d 389 (App.
2 2005) (quoting Zeran v. Am. Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997)).
3 The impact of the CDA on cases arising from postings on Internet message boards
4 such as www.TheDirty.com is very simple: “Through the CDA, ‘Congress granted most
5 Internet services immunity from liability for publishing false or defamatory material so
6 long as the information was provided by another party.’” Global Royalties, Ltd. v.
7 Xcentric Ventures, LLC, 544 F.Supp.2d 929, 933 (D.Ariz. 2008) (emphasis added)
8 (quoting Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1122–23 (9th Cir. 2003)).
9 Notwithstanding the relatively new status of this case, courts have consistently held it is
10 appropriate to apply the CDA as soon as reasonably possible:
11
Section 230 immunity, like other forms of immunity, is generally accorded
12 effect at the first logical point in the litigation process. As we have often
explained in the qualified immunity context, “immunity is an immunity
13 from suit rather than a mere defense to liability” and “it is effectively lost if
14 a case is erroneously permitted to go to trial.” We thus aim to resolve the
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question of § 230 immunity at the earliest possible stage of the case because
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15 that immunity protects websites not only from “ultimate liability,” but also
16 from “having to fight costly and protracted legal battles.”

17 Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254–55 (4th Cir. 2009)
18 (quoting Brown v. Gilmore, 278 F.3d 362, 366 n. 2 (4th Cir. 2002)); see also Fair Housing
19 Council v. Roommates.com, LLC, 521 F.3d 1157, 1175 (9th Cir. 2008) (en banc)
20 (explaining, “section 230 must be interpreted to protect websites not merely from ultimate
21 liability, but from having to fight costly and protracted legal battles.”)
22 As noted above, the facts of this case are entirely undisputed—Ms. Dyer’s ex-
23 boyfriend, Mr. Duecker, submitted the post about her which gave rise to this action.
24 Other than simply providing a forum for speech in which users are permitted to post
25 material on any subject they choose, Defendant did nothing whatsoever to “encourage”
26 Mr. Duecker to submit this post about Ms. Dyer. Merely operating a forum in which the
27 posting of controversial material is impliedly encouraged is insufficient as a matter of law
28 to defeat the CDA’s “robust” protection. See Best Western Int’l, Inc. v. Furber, 2008 WL
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 1 4182827, *10 (D.Ariz. 2008) (noting “[plaintiff] claims that the homepage [of defendant’s
2 site] impliedly suggests that visitors should make statements defaming BWI. The Court
3 does not agree. But even if this were true, it is insufficient to strip [defendant] of CDA
4 immunity.”) (emphasis added) (citing Roommates 521 F.3d at 1173–74).
5 In addition, it is undisputed that Defendant did not alter Mr. Duecker’s submission
6 in any material way; the only change Defendant made to Mr. Duecker’s content was to
7 partially redact Ms. Dyer’s name. This type of editorial conduct is expressly permitted
8 and indeed encouraged by the CDA; “[A]ny activity that can be boiled down to deciding
9 whether to exclude material that third parties seek to post online is perforce immune
10 under section 230.” Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009) (quoting
11 Roommates, 521 F.3d at 1170–71); see also Global Royalties, 544 F.Supp.2d at 932
12 (explaining, “the CDA is a complete bar to suit against a website operator for its ‘exercise
13 of a publisher’s traditional editorial functions-such as deciding whether to publish,
14 withdraw, postpone or alter content.’”)
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15 The fact that Defendant may have “added” its own content (the single sentence
16 quoted in ¶ 10 of the Complaint) to Mr. Duecker’s prior submission does not change this
17 analysis. See Gentry v. eBay, Inc., 99 Cal.App.4th 816, 833 note 11, 121 Cal.Rptr.2d 703,
18 717 note 11 (Cal.App.4th 2002) (explaining, “the fact appellants allege eBay is an
19 information content provider is irrelevant if eBay did not itself create or develop the
20 content for which appellants seek to hold it liable. It is not inconsistent for eBay to be an
21 interactive service provider and also an information content provider; the categories are
22 not mutually exclusive. The critical issue is whether eBay acted as an information content
23 provider with respect to the information that appellants claim is false or misleading.”)
24 (emphasis added).
25 Again, although there is no directly analogous Arizona case on point, a helpful
26 discussion of this aspect of CDA is set forth in Hung Tan Phan v. Lang Van Pham, 182
27 Cal.App.4th 323, 105 Cal.Reptr.3d 791 (4th Dist. Ct. App. 2010), a case arising from very
28 similar facts. In Phan, the defendant received an email which allegedly defamed the
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MOTION FOR SUMMARY JUDGMENT
CASE NO.: 2:11-CV-00074-SRB
 1 plaintiff in various ways. See Phan, 182 Cal.App.4th at 325–26. The defendant
2 forwarded the email (which he did not write) to a third party along with an introductory
3 comment (which he did write). With these facts, the court framed the question as follows:
4 “What happens when you receive a defamatory e-mail and you forward it along, but, in a
5 message preceding the actual forwarded document, introduce it with some language of
6 your own?” Id. at 325 (emphasis added). To the extent Ms. Dyer is attempting to impose
7 liability on Dirty World for Mr. Duecker’s statements based on the single sentence
8 “added” by Defendant, this scenario is closely analogous to the facts of Phan.
9 In arguing that the CDA should not apply, the plaintiff in Phan suggested that
10 because the defendant added his own comments to the defamatory email before passing it
11 along, he became responsible for the entire message including the text he did not create.
12 See id. The trial court rejected this argument and the California Court of Appeals
13 affirmed, finding the defendant was entitled to CDA immunity even though he added his
14 own original content to the third party’s email. This conclusion was based on “the rule
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PHOENIX, ARIZONA 85048

15 that a defendant’s own acts must materially contribute to the illegality of the internet
16 message for immunity to be lost.” Id. at 326 (emphasis in original). Because the
17 defendant’s own words were not defamatory, the Court of Appeals found the CDA
18 applied because, “the only possible defamatory content … found in the e-mail was the
19 original content received by defendant Pham from [the original author]. Nothing
20 ‘created’ by defendant Pham was itself defamatory.” Id. at 328. For that reason, the
21 appellate court affirmed the application of CDA immunity. See id.
22 Applying this logic here, to the extent that Plaintiff’s claims against Dirty World
23 are based on Mr. Duecker’s submission to TheDirty.com website, Defendant is plainly
24 entitled to summary judgment based on CDA immunity. As the California Supreme
25 Court succinctly explained in Barrett v. Rosenthal:
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The prospect of blanket immunity for those who intentionally redistribute
27 defamatory statements on the Internet has disturbing implications.
Nevertheless, by its terms section 230 [of the CDA] exempts Internet
28 intermediaries from defamation liability for republication. The statutory
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CASE NO.: 2:11-CV-00074-SRB
 1 immunity serves to protect online freedom of expression and to encourage
2 self-regulation, as Congress intended. Section 230 has been interpreted
literally. It does not permit Internet service providers or users to be sued as
3 “distributors,” nor does it expose “active users” to liability. Plaintiffs are
free under section 230 to pursue the originator of a defamatory Internet
4 publication. Any further expansion of liability must await Congressional
5 action.

6
7 Barrett v. Rosenthal, 40 Cal.4th 33, 62–3, 51 Cal.Rptr.3d 55, 77–8, 146 P.3d 510, 529

8 (2006) (emphasis added). This rule applies fully to the facts of this case and under those

9 facts, Ms. Dyer cannot impute liability to Dirty World for material posted on the site by

10 Mr. Duecker. Of course, Ms. Dyer remains free to pursue her claims against Mr.

11 Duecker, but any further expansion of liability is expressly prohibited by the CDA.

12 III. CONCLUSION

13 For the reasons stated herein, the Court should grant summary judgment in favor of

14 Defendant and against Plaintiff as to all claims in this matter.

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RESPECTFULLY SUBMITTED: May 15, 2011.

PHOENIX, ARIZONA 85048

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16 GINGRAS LAW OFFICE, PLLC
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/S/ David S. Gingras
18 David S. Gingras
Attorneys for Defendant
19 Dirty World, LLC
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 1 CERTIFICATE OF SERVICE
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3 I hereby certify that on April 15, 2011 I electronically transmitted the attached document
4 to the Clerk’s Office using the CM/ECF System for filing, and for transmittal of a Notice
5 of Electronic Filing to the following CM/ECF registrants:
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Mitchell B. Stoddard, Esq.
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Consumer Law Advocates
8 11330 Olive Blvd., Suite 222
St. Louis, MO 63141
9 Attorney for Plaintiff
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11 And a courtesy copy of the foregoing delivered to:
12 Honorable Susan R. Bolton
U.S. District Judge
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/s/David S. Gingras
GINGRAS LAW OFFICE, PLLC

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PHOENIX, AZ 85048

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MOTION FOR SUMMARY JUDGMENT

CASE NO: 2:11-CV-00074-SRB