Blumenthal v. AOL Motion for Summary Judgement

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

SIDNEY BLUMENTHAL, et al.,
Plaintiffs,

v.

MATT DRUDGE, et al.,
Defendants.

Civil Action No. 97-1968 (PLF)

____________________________________

MOTION FOR SUMMARY JUDGMENT

INTRODUCTION

This lawsuit arises out of a story concerning one of the plaintiffs that defendant Matt Drudge ("Drudge") published in his electronic publication called the "Drudge Report" and out of oral statements that Drudge allegedly made to reporters about the story. In a 136-page, 21-count Complaint, plaintiffs Sidney and Jacqueline Blumenthal claim that what Drudge said in the story and to reporters constituted defamation, invasion of privacy, and intentional infliction of emotional distress.

The Blumenthals name America Online, Inc. ("AOL") as an additional defendant on a theory that AOL "jointly and severally published" (along with Drudge) the allegedly defamatory material. Their asserted basis for this joint-publisher theory is a license agreement between Drudge and AOL under which Drudge posted editions of his Drudge Report -- which he independently published to tens of thousands of readers through other means -- onto AOL’s interactive computer service in exchange for a monthly royalty payment from AOL.

Both Drudge and AOL have numerous constitutional and common law defenses to the Blumenthals’ claims. But, as AOL shows in the present motion, Congress has recently enacted a statute, 47 U.S.C. § 230, that was specifically designed to protect operators of interactive computer services, such as AOL, from lawsuits that seek to treat them as the "publisher or speaker" of online content that originates from a third party. As the courts that have construed Section 230 to date have uniformly held, Section 230 immunizes operators of interactive computer services from defamation and other types of tort actions in which the plaintiff alleges injury stemming from statements made by another person that were disseminated through the interactive service.

The Blumenthals’ claims against AOL -- which are based entirely on alleged statements made by another person (Drudge) -- are precisely the sort of claim that Section 230 was crafted to block. Section 230 therefore bars the Blumenthals’ claims against AOL at the threshold and without need for consideration of the sort of constitutional and common law defenses that typically arise in traditional defamation litigation.^/

Recognizing that Section 230 is dispositive of their claims against AOL, the Blumenthals attempt to circumvent it (and also to make AOL liable for Drudge’s alleged "off-line" oral statements to reporters) by alleging in a conclusory fashion that Drudge was AOL’s "employee" or "agent." But, as the accompanying declarations of both Drudge and representatives of AOL establish, Drudge indisputably was not an employee or agent of AOL and all of the statements at issue originated solely with Drudge. Accordingly, AOL is entitled to summary judgment.

STATEMENT OF FACTS

The AOL Service

AOL operates the world’s largest interactive computer service.^/ AOL’s more than nine million subscribers use the AOL service as a conduit to receive and disseminate vast quantities of information by means of modem connections to AOL’s computer network. (Jennings Dec. ¶ 4.) The types of information that are transmitted through the AOL service are as diverse and varied as human thought itself. They include:

Information of all sorts that originates with AOL subscribers in the form of electronic messages posted on electronic message boards, exchanged in electronic "chat rooms," and sent via electronic mail or "instant messages." (Id. ¶ 5(a).)

Information provided by numerous independent third-party publishers -- ranging from large, well-known news organizations such as the New York Times and Newsweek to smaller speciality information sources such as Bicycle World Magazine to one-person information content providers such as Drudge -- who enter into licensing agreements to make their content available through the AOL service in exchange for royalty payments or other consideration. (Id. ¶ 5(b).)

Information posted on the Internet, including the portion of the Internet known as the World Wide Web, which is available to AOL subscribers because Internet access is a basic feature of the AOL service. (Id. ¶ 5(c).)

The Blumenthals

Plaintiff Sidney Blumenthal describes himself as a former journalist who previously worked for such publications as The New Yorker, The New Republic, and The Washington Post. (Complaint ("Comp.") ¶ 14.) Earlier this year, he was appointed to a position in the Clinton White House. (Id. ¶ 13.) His wife, Jacqueline Jordan Blumenthal, has worked in the Clinton White House since 1996. (Id. ¶ 17.)

Matt Drudge and the Drudge Report

Matt Drudge is the sole creator, developer, author and publisher of the "Drudge Report," an electronic publication that contains topical reports relating to (among other things) personalities, news and events in the fields of politics and entertainment.^/ Drudge conceived of, and began to publish, the Drudge Report in early 1995. (Drudge Dec. ¶ 3.) From the outset through the time of the events at issue in this case, the Drudge Report has always consisted of content created and written by Drudge. (Id. ¶ 4.) Drudge does not publish the Drudge Report according to any set schedule, but instead issues new editions sporadically, whenever he believes he has information that merits the attention of his readers.^/

Between February 1995 and May 1997, operating out of an office in his apartment in Los Angeles, Drudge single-handedly developed a substantial readership for the Drudge Report. (Drudge Dec. ¶¶ 3-11.) He started out by posting the Drudge Report in areas of the Internet known as news groups.^/ (Id. ¶ 6.) Shortly thereafter, he began to develop a list of regular readers, or subscribers, to whom he e-mailed each new edition of the Drudge Report for free. (Id. ¶¶ 6-7.) By March 1995, the Drudge Report had 1,000 e-mail subscribers, and the number has grown steadily ever since. (Id. ¶ 7.) According to the Complaint, by 1997 Drudge had in excess of 85,000 subscribers to his e-mail service. (Comp. ¶ 47.)

In the summer of 1995, Drudge established his own site on the World Wide Web to serve as an additional platform for publishing the Drudge Report. (Drudge Dec. ¶ 8; see also Jennings Dec. ¶ 8.) Since then, Drudge has published each new edition of the Drudge Report on this Web site. (Comp. ¶ 53; Drudge Dec. ¶¶ 8, 17; see Jennings Dec. ¶¶ 8, 13.) Anyone in the world with access to the Internet may electronically visit this site -- at the Internet address of "www.drudgereport.com" -- and read the current edition of the Drudge Report for free. (Drudge Dec. ¶ 8; see also Jennings Dec. ¶¶ 8, 13.) This Web site also contains numerous computerized links to other online publications and news articles that Drudge believes are likely to be of interest to his readers. (Drudge Dec. ¶ 8.) The Drudge Report Web site has become enormously popular. According to an Exhibit to the Complaint, the number of separate electronic visits to the site exceeded 500,000 during a recent thirty-day period. (Comp. ¶¶ 208, 214 & Ex. 3.)

In late 1996, Drudge entered into a six-month licensing agreement with Wired magazine pursuant to which he gave Wired the right to receive and display future editions of the Drudge Report on Wired’s Internet site in exchange for royalty payments. (Drudge Dec. ¶ 10.) During the term of this agreement, Drudge continued to distribute each new edition of the Drudge Report by e-mailing it to his thousands of subscribers and by posting it to his own Internet Web site. (Id. ¶ 11.) This agreement expired in May 1997. (Id. ¶ 10.)

Drudge’s License Agreement With AOL

Effective June 1, 1997 -- more than two years after Drudge had established the Drudge Report as an independent, free-standing publication -- Drudge and AOL entered into a written license agreement under which Drudge posts new editions of the Drudge Report to a designated "Drudge Report" area on the AOL service in exchange for a royalty payment of $3,000 per month.^/ The agreement calls for Drudge to provide and license to AOL, for a period of one year, the very same content of the Drudge Report that he sends to his thousands of e-mail subscribers and publishes on his own Web site. (See Agreement, Ex. A; Drudge Dec. ¶¶ 13-14; Jennings Dec. ¶ 13.)

The Drudge-AOL license agreement leaves all responsibility for generating the content of the Drudge Report exclusively to Drudge. (Agreement, Ex. C; Drudge Dec. ¶¶ 13-14; Jennings Dec. ¶¶ 13-14; see Wooldridge Dec. ¶ 12.) It specifies that it is Drudge’s responsibility to "create," "edit," "update" and "otherwise manage" all content within the scope of the agreement "in a timely and professional manner." (Agreement, Ex. C.) The parties further agreed that AOL would not edit or alter any aspect of the Drudge Report as it appeared on the AOL service, subject only to a right on the part of AOL to remove content that AOL reasonably determined to violate AOL’s then standard terms of service. (Agreement, Ex. C; Jennings Dec. ¶¶ 13, 16; see Drudge Dec. ¶¶ 13, 21, 23-25; see also Comp. ¶ 126 ("defendant Drudge and defendant AOL agreed that defendant AOL would not edit the Drudge Report").) Under the agreement, Drudge retains ownership of the copyright for the content of each edition of the Drudge Report. (Agreement ¶ 1.2; Drudge Dec. ¶ 38.)

The Drudge-AOL license agreement expressly contemplates that Drudge will continue, during the term of the agreement, to publish the Drudge Report independently through his e-mail subscription service and on his Web site. (Drudge Dec. ¶¶ 13-15, 17; Jennings Dec. ¶ 13; see Agreement, Ex. A.) Indeed, the agreement expressly defines the "Licensed Content" that Drudge is to provide to AOL as the "Drudge Report Web site (at www.drudgereport.com)" and the "Drudge Report e-mail newsletters." (Agreement, Ex. A.) Throughout the term of the license agreement, Drudge has in fact continued to use his Web site and e-mail subscription service -- which are entirely separate and independent from AOL -- as his principal platforms for publishing the Drudge Report. (See Drudge Dec. ¶¶ 13, 15, 17, 21; Jennings Dec. ¶ 13, 22.) Therefore, from the standpoint of AOL subscribers -- who always have been and still are able to read the Drudge Report by using the Internet-access feature of AOL’s service to visit Drudge’s Web site -- the practical effect of the license agreement is simply to create an electronic space on the AOL service where they may read the Drudge Report without having to access the Internet. (Jennings Dec. ¶ 13; see also Drudge Dec. ¶ 13.)

The Drudge-AOL license agreement expressly created an independent contractor relationship between Drudge and AOL, and expressly disclaimed any intent to create an employment or agency relationship. It provides:

The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an . . . agency . . . between the Parties or to impose any liability attributable to such a relationship upon either Party.

(Agreement, Ex. C, p.3.)

Drudge has never considered himself to be an employee or agent of AOL, and would not have entered into the license agreement with AOL if doing so would have given him that status. (Drudge Dec. ¶ 19.) Over the years that he has been publishing the Drudge Report, Drudge has always jealously guarded his status as an independent writer and reporter who is not beholden to any corporate or other third-party. (Id.) Being an employee or agent of AOL would be anathema to Drudge’s vision of himself and his publication. (Id.) AOL has never considered Drudge to be an employee or agent and intended to establish an independent contractor relationship.^/

Availability of the Drudge Report on the AOL Service

The Drudge Report began to be available on the AOL service as contemplated by the license agreement in mid-July, 1997. (Drudge Dec. ¶ 16; Wooldridge Dec. ¶ 5.) Drudge’s activities and routine for creating, preparing, writing and publishing new editions of the Drudge Report did not change as a result of his new contractual relationship with AOL, except that he now also e-mails the content of each new edition to AOL for posting on the AOL service. (Drudge Dec. ¶ 17.) This added step takes Drudge less than fifteen seconds per edition. (Id.) Drudge generally performs this step after he has already sent each new edition to his own subscribers and posted it on his own Web site. (Id.)

From approximately July 15, 1997 to approximately August 5, 1997, Drudge transmitted new editions of the Drudge Report to AOL by e-mailing them to an AOL employee who merely oversaw the technical details of posting them onto the AOL service. (Wooldridge Dec. ¶¶ 5-6; see Drudge Dec. ¶ 41.) Since approximately August 6, 1997, Drudge has transmitted new editions of the Drudge Report to AOL by e-mailing them directly to an AOL computer that automatically posts them onto the AOL service without any intervening action by any AOL employee.^/

The content of all editions of the Drudge Reports that have been available on the AOL service pursuant to the license agreement has been created and developed entirely by Drudge, and none of it has originated with AOL. (Drudge Dec. ¶¶ 22-23, 25; Jennings Dec. ¶¶ 14, 18.) Just as he did before entering the agreement, Drudge has continued to exercise complete and unfettered discretion over all aspects of the Drudge Report’s content, including choice of topics, order of stories, style, word choice and grammar. (Drudge Dec. ¶¶ 22-23, 25; Jennings Dec. ¶ 14.) No one from AOL has ever made any editorial changes to the content supplied by Drudge, directed Drudge to cover or not cover any particular topic, or otherwise said or done anything to affect or alter the content of the Drudge Report. (Drudge Dec. ¶¶ 22-23, 25; see Jennings Dec. ¶¶ 14-15, 18 see Wooldridge Dec. ¶12.) Indeed, no one from AOL ever knows in advance what topics will be covered in the next edition of the Drudge Report, or even when the next edition will be issued. (Drudge Dec. ¶¶ 26-29; Jennings Dec. ¶ 17; see Wooldridge Dec. ¶¶ 8, 12.)

Drudge’s Publication of the Blumenthal Story

Late at night on Sunday, August 10, 1997 (west coast time), Drudge published a new edition of the Drudge Report containing five separate stories. (Drudge Dec. ¶ 47; see Comp., Ex. 4.) One was a story about Sidney Blumenthal (the "Blumenthal story"). (Comp., Ex. 4.) The Blumenthal story stated that two unnamed officials of the Republican Party had accused Mr. Blumenthal, who was about to start work in the White House as an Assistant to President Clinton, of having a "spousal abuse past." (Id.) The story quoted an anonymous White House source as saying that the allegation was "pure fiction." The story further stated that Drudge’s attempts to reach Mr. Blumenthal for comment had been unsuccessful. (Id.)

Drudge wrote the Blumenthal story and was its sole author. (Drudge Dec. ¶ 46.) No one at AOL played any role whatsoever in the creation or writing of the Blumenthal story. (Id. ¶ 46; see Wooldridge Dec. ¶ 12.) No one at AOL supervised Drudge’s work in creating and writing this story. (Drudge Dec. ¶ 46; see Jennings Dec. ¶ 15; Wooldridge Dec. ¶ 12.) No one at AOL edited the Blumenthal story. (Drudge Dec. ¶ 46; see Jennings Dec. ¶ 16; Wooldridge Dec. ¶ 12.) Indeed, before Drudge actually published the Blumenthal story, no one at AOL was aware that he had been working on any story concerning Mr. Blumenthal or even that a new edition of the Drudge Report was about to be issued. (Drudge Dec. ¶¶ 46-47; see Jennings Dec. ¶ 17; Wooldridge Dec. ¶¶ 8, 12-13.) Drudge had no communication whatsoever with anyone at AOL concerning the Blumenthal story before he published and distributed it on August 10, 1997. (Drudge Dec. ¶ 46; Wooldridge Dec. ¶ 12.)

Drudge published and distributed the edition of the Drudge Report containing the Blumenthal story in accordance with his normal routine. (Drudge Dec. ¶ 47.) He first began the process of e-mailing it to his thousands of direct subscribers. (Id.) At approximately the same time, he also posted both a headline concerning the Blumenthal story and the full text of the edition containing the story on the Drudge Report Web site. (Id.) Thereafter, he transmitted the full text of the edition (but not the Web site headline) to an AOL computer address, resulting in its automatic posting to the AOL service. (Drudge Dec. ¶¶ 47-48; see Wooldridge Dec. ¶ 10, 19 & Ex. A.) No one at AOL reviewed, or had any opportunity to review, this edition of the Report before Drudge caused it to be published to his subscribers, on his Web site, and on the AOL service. (Drudge Dec. ¶¶ 46-47; see Wooldridge Dec. ¶¶ 8, 12-13; see Jennings Dec. ¶ 17.)

The edition of the Drudge Report containing the Blumenthal story was plainly identified on the AOL service as content that had originated with Drudge, not AOL. A legend at the bottom of the report stated that it had been "Filed by Matt Drudge" and that it was copyrighted by the "DRUDGE REPORT 1997." (Wooldridge Dec., Ex. A.)

Drudge’s Retraction of the Blumenthal Story

Late in the day (west coast time) on Monday, August 11, 1997, the Blumenthals’ attorney faxed a letter to Drudge stating that the Blumenthal story "contained scurrilous lies" and "demand[ing]" that the article be removed "from the Internet." (See Drudge Decl ¶ 49; Comp., Ex. 5.) The letter also made the unusual demand that Drudge immediately disclose the identities of his sources for the story, and threatened Drudge that if he did not, "the Blumenthals will take the appropriate action against you." (Comp., Ex. 5.) Neither the Blumenthals, their attorney, nor anyone else acting on their behalf ever made any similar demand on AOL or otherwise communicated with AOL about the article. (Jennings Dec. ¶ 23.)

Within hours of receiving the Blumenthals’ demand, Drudge posted on his Web site and transmitted to all of his e-mail subscribers a special edition of the Drudge Report stating that he was "issuing a retraction of my information regarding Mr. Sidney Blumenthal that appeared in the Drudge Report on August 11, 1997." (Drudge Dec. ¶ 50; see Wooldridge Dec., Ex. B.) Before 2:00 a.m. (west coast time) on August 12, 1997, Drudge also e-mailed the same special edition to an AOL computer, causing it automatically to be posted on the AOL service. (Drudge Dec. ¶ 52; Wooldridge Dec. ¶¶ 14-15 & Ex. B.) As a result, AOL subscribers who thereafter sought to access the current Drudge Report on the AOL service did not see the Blumenthal story, but instead saw only the retraction. (Drudge Dec. ¶ 52; Wooldridge Dec. ¶¶ 4, 17.) Later that same morning, Drudge contacted AOL and requested that the edition of the Drudge Report containing the Blumenthal story be removed from the electronic archive of previous editions of the Drudge Report that are available to AOL’s subscribers. (Drudge Dec. ¶ 54; Wooldridge Dec. ¶ 18.) AOL complied with this request later that same day. (Wooldridge Dec. ¶ 18.)

During the less-than-48-hour period that the Blumenthal story was available on the AOL service, fewer than 2100 people accessed the area on the AOL service where the Drudge Report is displayed. (Jennings Dec. ¶ 22.) This pool of potential readers was nearly sixty-times smaller than the combined pool of potential readers represented by the more than 85,000 persons to whom (according to plaintiffs’ Complaint) Drudge directly e-mailed the story (see Comp. ¶¶ 47, 209) and the approximately 40,000 persons who (according to plaintiffs) reportedly had visited Drudge’s Web site on August 11, 1997. (See Comp. ¶ 214 & Ex. 3.)

Drudge’s Alleged Oral Statements to the Press

According to the Complaint, shortly before and shortly after Drudge published the Blumenthal story in the Drudge Report, Drudge made oral statements about the story to reporters for the Washington Post and the New York Post and a producer for ABC News. (Comp. ¶¶ 218-252.) Although these statements included a public apology from Drudge to the Blumenthals (Drudge Dec. ¶ 51; Comp., Ex. 6 & 7), the Blumenthals allege that these statements caused them further injury. Despite a complete absence of any involvement on AOL’s part with respect to these alleged oral statements (Jennings Dec. ¶ 24), despite Drudge’s sworn declaration that any statements he made to the press were made solely on his own behalf (Drudge Dec. ¶ 55), and despite uncontroverted evidence that AOL did not request or authorize Drudge to speak on its behalf about the Blumenthal story (Jennings Dec. ¶ 24), the Complaint alleges that AOL is vicariously liable for these statements.

The Lawsuit

On August 27, 1997, just sixteen days after Drudge published the edition of the Drudge Report containing the Blumenthal story, the Blumenthals rushed into this Court with a 136-page, 21-count, 561-paragraph Complaint seeking $30 million in compensatory and punitive damages on the theory that the story (and Drudge’s alleged oral statements to the press) had defamed them, invaded their privacy, and inflicted emotional distress on Mrs. Blumenthal. The Complaint makes plain that the Blumenthals fully recognize that all of the allegedly defamatory statements at issue in the case originated with Drudge, not AOL. Nonetheless, without conducting any serious inquiry into the nature of AOL’s relationship with Drudge, and relying instead on conclusory and unsubstantiated allegations that Drudge is an employee and agent of AOL, the Blumenthals named AOL as an additional defendant.

On September 12, 1997, this Court granted AOL an extension of 30 days to file an answer to the massive Complaint. AOL filed its Answer four days ago, on October 16, 1997.

ARGUMENT

Summary judgment must be granted where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. See, e.g., Nelson v. American National Red Cross, 26 F.3d 193, 196 (D.C. Cir. 1994). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment: the requirement is that there is no genuine issue of material fact." Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986) (emphasis in original). Summary judgment plays an especially important role in the context of defamation actions generally, and particularly in cases like this one involving public figure plaintiffs, because "[u]nless persons . . . desiring to exercise their First Amendment rights are assured freedom from the harassment of lawsuits, they will tend to become self-censors." Washington Post v. Keogh, 365 F.2d 965, 968 (D.C. Cir. 1966).

The Complaint contains two categories of claims against AOL, the first based on statements allegedly made by Drudge in the online Drudge Report and the second based on Drudge’s alleged oral statements to members of the press.^/ AOL is entitled to summary judgment on the first set of claims because they are barred by 47 U.S.C. § 230, and it is entitled to summary judgment on the second set because AOL was not responsible in any way for Drudge’s alleged oral statements to the press.

For purposes of this motion, AOL assumes (for the sake of argument only) that almost all of the allegations in the Complaint are true, as it would in a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). For purposes of this motion, the only factual allegations in the Complaint that AOL controverts are the Blumenthals’ conclusory and unsubstantiated allegations that Drudge was an employee or agent of AOL, which, as demonstrated below, are indisputably wrong.

I. PLAINTIFFS’ CLAIMS AGAINST AOL RELATING TO THE CONTENT OF THE DRUDGE REPORT ARE BARRED BY 47 U.S.C. § 230.

Interactive computer services -- which enable people to communicate with one another with unprecedented speed and efficiency through the Internet and related electronic networks -- are rapidly revolutionizing how people and businesses share and receive information. "The Internet is a unique and wholly new medium of worldwide human communication." Reno v. American Civil Liberties Union, 117 S.Ct. 2329, 2334 (1997) (quotation omitted). Unlike traditional media such as television, radio, newspapers, and books, where content typically flows from a single, centralized "publisher," information and content on interactive computer services is created and disseminated by millions of different content providers ranging from individuals to amateur and professional journalists to established news organizations. Interactive computer services such as AOL function as the conduits through which millions of subscribers throughout the world may instantaneously receive information from these myriad information content providers in a single online space. One of the great challenges of the information revolution created by the Internet is to develop legal rules to govern this new medium that recognize this fundamental distinction between traditional media and interactive services. In February 1996, Congress enacted 47 U.S.C. § 230 as a response to this challenge.^/

Section 230 was designed to eliminate uncertainties in the law governing whether providers of interactive computer services, such as AOL, could be liable for harms resulting from the dissemination of tortious content that other persons or entities create and make available using such services. As we show below, Congress determined in Section 230 that providers of interactive computer services are immune from such liability. Congress made this policy decision because it recognized that saddling interactive computer services with liability for harm caused by third-party communications and content would be inconsistent with, and ultimately could cripple, the vigorous and vibrant development of this new and important medium of communication.

The Blumenthals’ claims against AOL relating to statements made by Drudge in the Drudge Report seek to impose on AOL liability for allegedly tortious statements in a third party’s publication that was available on AOL’s interactive computer service. These claims are barred by Section 230 as a matter of law.

A.    Section 230’s Plain Terms Bar All of the Blumenthals’ Claims Against AOL Relating to the Content of the Drudge Report.

The plain terms of Section 230 bar the Blumenthals’ claims against AOL that are based on Drudge’s statements in an issue of the Drudge Report that was available to the public from, among other sources, AOL’s interactive service.^/ Section 230(c)(1) states:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Section 230(d)(3) further provides that

No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

The only two reported cases to have discussed Section 230 to date establish that the statute immunizes interactive service providers such as AOL from tort liability for online content that originates with other people. In Zeran v. America Online, Inc., 958 F. Supp. 1124 (E.D. Va. 1997) (appeal docketed), the court held that making AOL liable for allegedly false and defamatory statements posted by a third party on an AOL message board would treat it as "the publisher or speaker" of third-party content in contravention of Section 230 and accordingly dismissed all claims against AOL. Id. at 1133. The court in Doe v. America Online, Inc., 1997 WL 374223 (Fla. Cir. Ct. June 26, 1997), reached the same conclusion when it dismissed all claims against AOL based on statements by an AOL subscriber in an AOL chat room. Id. at *2.^/ As the Doe court stated, "[m]aking AOL liable for [the subscriber’s] chat room communications would treat AOL as the ‘publisher or speaker’ of those communications" in violation of Section 230. Id. at *3.

As these cases demonstrate, a straightforward application of Section 230 bars all of the Blumenthals’ claims against AOL arising from Drudge’s statements in the Drudge Report.

1. AOL Is a "Provider of an Interactive Computer Service."

The Blumenthals concede that AOL is a "provider . . . of an interactive computer service" for purposes of Section 230. (Comp. ¶ 94.) Section 230(e)(2) defines the term "interactive computer service" to include "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet." 47 U.S.C. § 230(e)(a). AOL’s electronic information service, which enables millions of AOL subscribers to access AOL’s computer servers and the Internet through telephone modem connections (Jennings Dec. ¶ 4), clearly meets this definition, see Zeran, 958 F. Supp. at 1132; Doe, 1997 WL 374223 at *2.

2. The Drudge Report Story Concerning Mr. Blumenthal Was "Information Provided by Another Information Content Provider."

The second prerequisite for Section 230 immunity -- that the content at issue have been provided by "another information content provider" -- is also met in this case. Section 230(e)(3) defines an information content provider as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." As the sole creator, developer, author, and owner of the Drudge Report in general and the Blumenthal story in particular, Drudge unquestionably meets this definition. (See, e.g., Drudge Dec. ¶¶ 3-4, 21-30, 46.) Not surprisingly, then, the Complaint specifically concedes that Drudge was an "information content provider" within the meaning of Section 230(e)(3). (Comp. ¶¶ 40-41.)

The remaining issue, then, is whether Drudge is "another" information content provider for purposes of Section 230. Under the plain meaning of the term, Drudge is "another" information content provider if he is "different or distinct" from AOL. Webster’s Collegiate Dictionary 48 (10th ed. 1995). Drudge easily meets this definition. He is a self-employed person who invented the entire concept of the Drudge Report and then developed it into a free-standing electronic publication in its own right that he distributed to subscribers and the general public for two years before he had any involvement with AOL. (Drudge Dec. ¶¶ 3-11.) Operating out of his own office some three-thousand miles away from AOL’s Virginia headquarters, Drudge single-handedly -- without even an iota of supervision or involvement by AOL -- researches and writes each edition of the Drudge Report. (Id. ¶¶ 21-31; see Jennings Dec. ¶¶ 8, 12-18.) Moreover, Drudge also electronically disseminates each edition of the Drudge Report through a variety of methods, including his own e-mail subscription service and his own World Wide Web site, both of which are totally separate from AOL. (Drudge Dec. ¶¶ 6-11; Jennings Dec. ¶ 8.) In fact, the Drudge Report reaches far more readers through modes of dissemination controlled entirely by Drudge than it does through Drudge’s posting of it on the AOL service. (See supra at p. 13.) In sum, Drudge runs "his business" (Comp. ¶ 58) as an enterprise that is distinct from AOL and he therefore is "another" information content provider within the meaning of Section 230.

The circumstances surrounding Drudge’s publication of the Blumenthal story further confirm that he is "another" information content provider and that the story constituted content "that was not [AOL’s] own." H.R. Conf. Rep. No. 104-458, at 194 (1996).^/ As with the Drudge Report generally, AOL had no role whatsoever in the research, writing, or editing of that story. (Drudge Dec. ¶¶ 46-47; Jennings Dec. ¶ 17; Wooldridge Dec. ¶ 12.) Indeed, AOL was not even aware that Drudge was working on a story about Mr. Blumenthal until after it was publicly available. (Drudge Dec. ¶¶ 46-47; Wooldridge Dec. ¶¶ 8, 12-13.) Drudge posted the Report containing the story directly onto AOL’s system without intervention by anyone at AOL. (Drudge Dec. ¶ 47; Wooldridge Dec. ¶ 10.) The legend at the bottom of the Report stated that it had been "Filed by Matt Drudge" and was copyrighted by the "DRUDGE REPORT 1997." (Wooldridge Dec., Ex.A, at p. 2; see Drudge Dec. ¶ 18.)

The Blumenthals’ own response to the story reveals that even they saw it as content that had been created and developed by someone who was separate and apart from AOL. While the Blumenthals sent Drudge a letter demanding that he remove the story from the Internet and provide them with information about his sources (see Comp., Ex. 5), they never made any similar approach to AOL (Jennings Dec. ¶ 23). In every respect, Drudge -- and not AOL -- was responsible for the creation and development of the Blumenthal story, and it therefore was "information provided by another information content provider." 47 U.S.C. § 230.

3. Imposing Liability on AOL Would "Treat [AOL] as the Publisher or Speaker" of the Drudge Report Story Concerning Mr. Blumenthal.

Finally, imposing liability on AOL for Drudge’s allegedly defamatory statements in the Drudge Report would treat AOL as the "publisher or speaker" of those statements within the meaning of Section 230. As both the Zeran and Doe courts have held, a lawsuit that seeks to impose liability on an interactive service based on allegedly tortious third-party content impermissibly "treats" the service as "the publisher or speaker" of that content from at least three critical perspectives.

First, under well-settled common law principles, liability for harm flowing from the dissemination of defamatory or otherwise tortious material may be imposed only on a party who is deemed to have "published" the material. Basic hornbook law provides that an entity may be liable for harm caused by a defamatory statement if and only if the entity "published" the statement. The essential elements of any defamation action include both "an unprivileged publication to a third party" and "fault amounting to at least negligence on the part of the publisher." Restatement (Second) of Torts § 558 (1977) (emphasis added). Similarly, the most basic element of the tort of invasion of privacy for placing an individual in a false light -- the other tort theory on which the Blumenthals principally rely -- is that the defendant must have "publicized" the information at issue. See id. § 652E (false light invasion of privacy action requires showing that defendant gave "publicity" to allegedly harmful information).^/ Not surprisingly, then, each count of the Complaint relating to Drudge’s online statements explicitly alleges that AOL "published" or "publicized" the statements at issue.^/ Accordingly, under basic common law concepts, holding AOL liable for dissemination of Drudge’s statements in the Drudge Report would treat AOL as the "publisher or speaker" of those statements. See Zeran, 958 F. Supp. at 1133.^/

Second, making AOL liable here "would impose on AOL, as a matter of law, a standard of care that would require AOL to monitor, screen and censor the great volumes of information transmitted over its system by third parties, which are the quintessential activities in which traditional publishers must engage." Doe, 1997 WL 374223 at *3 (emphasis added). If AOL can be held liable in a suit such as this, then before it could allow any other issue of the Drudge Report, any article from The New York Times, or any other item of third-party content to be posted on its system, it would have to investigate the truth or falsity of each and every item and then make and implement a judgment about whether or not to edit or censor each item. Such a regime would not only impose an impossible burden on interactive computer services due to the huge quantities of third-party information that flow through such services every day (see infra, at p. 39), but also would "treat" AOL as the "publisher or speaker" of third-party content in derogation of Section 230. Id.

Third, the Blumenthals’ suit also treats AOL as the "publisher or speaker" of third-party content in the sense that it seeks to "[su]bject AOL to precisely the same legal treatment that plaintiff has sought with respect to [Drudge], who is the actual ‘publisher or speaker’ of the statements at issue." Doe, 1997 WL 374223 at *3. Every count of the Blumenthal’s Complaint relating to Drudge’s online statements in the Drudge Report alleges that AOL "jointly and severally" published each statement along with Drudge.^/ By equating the actions of AOL with those of Drudge, and by bringing precisely the same claims against each, the Blumenthals’ suit clearly "treats [AOL] as the publisher or speaker" of the statements in the Drudge Report.

B. The Blumenthals’ Conclusory Allegations That Drudge Is an Employee or Agent of AOL Are Unfounded and Do Not Defeat the Section 230 Defense.

Apparently recognizing that Section 230 bars their claims against AOL unless they find some way to show that Drudge was not "another information content provider," the Blumenthals attempt to circumvent the straightforward reading of Section 230 by resorting to conclusory and unsubstantiated allegations that Drudge was an "employee" and/or "agent" of AOL. (Comp. ¶¶ 160-61.) But, even assuming that an employment or agency relationship between AOL and Drudge would be sufficient to make Section 230 inapplicable (which AOL does not concede^/), the Blumenthals’ allegations that Drudge was an employee or agent of AOL are simply wrong. Overwhelming and indisputable evidence establishes that Drudge is neither an employee nor an agent of AOL.

1. Drudge Is Not an Employee of AOL.

Under the general common law of agency, "[a] servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control." Restatement (Second) of Agency § 220 (1958).^/ In applying this common law "right to control" test to determine whether a person is an employee or an independent contractor, courts examine a variety of factors. See, e.g., Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751 (1989) ("CCNV"); Restatement (Second) Agency § 220.^/ An analysis of these factors in this case compels the conclusion that Drudge is not an AOL employee.

The dominant factor in assessing whether a person is an employee is "the hiring party’s right to control the manner and means by which the product is accomplished." CCNV, 490 U.S. at 751; Spirides v. Reinhardt, 613 F.2d 826, 831 (D.C. Cir. 1979) ("[T]he extent of the [alleged] employer’s right to control the ‘means and manner’ of the worker’s performance is the most important factor to review"). Efforts to monitor and control the results of a contractual relationship are not the relevant form of control; the central inquiry is whether the alleged employer controls the "means and manner" of the performance by "regulat[ing] the actual activities undertaken by the employee in the course of his occupation." Local 777, Democratic Union Org. Comm. v. NLRB, 603 F.2d 862, 873-75 (D.C. Cir. 1978); C.C. Eastern, Inc. v. NLRB, 60 F.3d 855, 858 (D.C. Cir. 1995).

In this case, the central factor of control weighs as heavily as possible in favor of finding that Drudge was an independent contractor rather than an AOL employee. The license agreement between Drudge and AOL provides that Drudge "shall review, delete, edit, create, update, and otherwise manage all Content" within the agreement’s scope. (Agreement, Ex. C.) Thus, as even the Blumenthals concede, AOL simply has no supervisory or controlling role in Drudge’s creation or publication of the Drudge Report or its content: "At all times relevant to the allegations of this Complaint, no person, other than Drudge himself, edited, checked, verified, or supervised the researching, writing, or publication of the Drudge Report." (Comp. ¶ 86 (emphasis added).)

From all perspectives, AOL has no control (or right of control) over the means and manner by which Drudge creates each issue of the Drudge Report, just as it has no control over the means and manner by which the New York Times, Newsweek, Highlights for Children Magazine, Compton’s Encyclopedia, or many other third-party content providers with which AOL has similar contractual arrangements create their content. (See Jennings Dec. ¶ 18.) Drudge performs every aspect of creating each edition of the Drudge Report on his own. (Drudge Dec. ¶¶ 3-5, 22-29; see Jennings Dec. ¶¶ 17-19.) He is his own boss. He alone determines which stories to write, which sources to rely on, and when to publish any given story or edition. (Drudge Dec. ¶¶ 3-5, 22-23, 25; see Jennings Dec. ¶¶ 14-17.) The text of each Drudge Report comprises words chosen and written entirely by Drudge. (Drudge Dec. ¶ 25; Jennings Dec. ¶ 14; see Wooldridge Dec. ¶ 12.) As the Complaint concedes, AOL does not even edit the version of the Drudge Report that Drudge posts onto the AOL service.^/

In fact, AOL plays no role whatsoever -- supervisory or otherwise -- in any aspect of Drudge’s creation of the Drudge Report, including his selection of story topics, communications with sources, and writing of each individual story. (Drudge Dec. ¶¶ 22, 25; Jennings Dec. ¶¶ 15, 17-18.) Indeed, AOL does not even know what the content of the Drudge Report will be until after he has published it to the world, because Drudge posts the Report directly on AOL’s system after he has disseminated it via his e-mail subscription service and Web site and without ever providing anyone at AOL with an advance copy. (Drudge Dec. ¶¶ 28-29; see Jennings Dec. ¶ 17; Wooldridge Dec. ¶ 8.) Moreover, even the frequency with which Drudge creates and publishes the Drudge Report is left entirely to his discretion. (Drudge Dec. ¶ 26; Jennings Dec. ¶ 19.) In sum, AOL plainly does not control the means and manner of Drudge’s performance.^/

Cubby v. CompuServe, 776 F. Supp. 135 (S.D.N.Y. 1991), a case whose facts are strikingly similar to this one, strongly supports the conclusion that Drudge is not an employee of AOL. In Cubby, the plaintiff brought a defamation action against CompuServe, alleging that CompuServe was vicariously liable for a purportedly defamatory statement posted onto its interactive computer service by a third-party (CCI) pursuant to a contract resembling the Drudge-AOL license agreement.^/ The court granted summary judgment in favor of CompuServe on the ground that CompuServe lacked sufficient control over the manner of CCI’s performance to create any type of agency or employment relationship. Id. at 142-43. The court relied in particular on language in the CompuServe-CCI contract providing that CCI would "manage, review, create, delete, edit and otherwise control" the content "in accordance with editorial and technical standards and conventions of style as established by CompuServe." Id. at 143. The court concluded that under this language, "CompuServe has . . . delegated control over the assembly of the content[] . . . to CCI" and therefore lacked "sufficient control over CCI" to create an employee or agency relationship.^/ Id. Drudge’s contract with AOL contains almost identical language: Drudge shall "review, delete, edit, create, update, and otherwise manage all" content "in accordance with the terms of the Agreement [between Drudge and AOL], AOL’s then-standard Terms of Service, and any generally applicable guidelines and service standards for interactive content providers." (Agreement, Ex. C.)

Other courts have similarly rejected claims that independent writers are employees of the organizations through which their work product is disseminated, even where -- unlike this case -- the disseminating organization exercises significant editorial control over the ultimate work product. In Chaiken v. VV Publishing Corp., 119 F.3d 1018 (2d Cir. 1997), for example, the court held that a freelance reporter was not an employee of a newspaper even though the newspaper edited his stories before they were published. The court reasoned that the newspaper lacked sufficient control over the reporter to make him an employee because he "selected topics and conducted research independently" and "wrote articles without any guidance from" the newspaper. Id. at 1034. Similarly, in Nelson v. Globe International, Inc., 626 F. Supp. 969 (S.D.N.Y. 1986), the court found that even a newspaper that had selected an article topic and then edited the resulting article lacked sufficient control over the author’s performance to make the author an employee because the author selected and interviewed sources and chose the words, style, and order of the copy he supplied. See id. at 978; see also Price v. Viking Penguin, Inc., 881 F.2d 1426, 1446 (8th Cir. 1989) (editor of book did not exercise sufficient control over author’s performance to render author an employee even though editor functioned as "sounding board" and was consulted on "structural matters" and "expository decisions"). Drudge has each of the freedoms from control relied upon by these courts in finding that these authors were not employees, and AOL has none of the involvement in the writing process mentioned in these cases.

All of the other factors that courts typically examine to determine whether a person is an employee similarly point to the conclusion that Drudge is not an employee of AOL. Each of the following undisputed facts confirm Drudge’s status as an independent contractor:

The license agreement between Drudge and AOL explicitly provides that "[t]he Parties to this Agreement are independent contractors "and that "neither Party is an agent, representative, or partner of the other Party." (Agreement, Ex. C § VII.) Such contractual language is an "important" factor in establishing that a party was an independent contractor. Local 777, 603 F.2d at 878; see also Cilecek v. Inova Health System Services, 115 F.3d 256, 262 (4th Cir. 1997); Spirides v. Reinhardt, 486 F. Supp. 685, 687 (D.D.C. 1980).

Drudge operates out of an office that he maintains entirely at his own expense in Los Angeles, and he has never performed any work or services on AOL’s premises. (Drudge Dec. ¶ 30.) Indeed, Drudge has visited AOL’s facilities only once for less than two hours^/, and no one from AOL has been to Drudge’s California office. (Drudge Dec. ¶¶ 32-24.) See CCNV, 490 U.S. at 752 (fact that contractor "worked in his own studio in Baltimore," making "daily supervision of his activities from Washington practically impossible," weighs in favor of independent contractor status). See also Marco v. Accent Publishing, 969 F.2d 1547, 1550 (3d Cir. 1992) (fact that photographer worked from his own studio is evidence that he was not a magazine employee).

The extent of communication and interaction between Drudge and AOL during the time that he has been posting onto the AOL service is extremely limited. (See Drudge Dec. ¶ 22 (during approximately first month of posting, Drudge had no face-to-face contact and fewer than ten phone calls with anyone from AOL and received fewer than five e-mail or written communications from AOL).) See CCNV, 490 U.S. at 752-53 (absence of daily supervision is significant factor); Spirides, 486 F. Supp. at 688; Restatement (Second) Agency § 220(a).

Drudge has complete discretion over when and how long to work and exclusive control over the frequency and timing of new editions of the Drudge Report. (Drudge Dec. ¶¶ 26-27; Jennings Dec. ¶ 19.) His complete freedom to "work on any day, at any hour, and for any stretch of time he [chooses]" confirms his independent contractor status. Marco, 969 F.2d at 1550; CCNV, 490 U.S. at 753.

Drudge owns and controls, and has never disclosed to AOL, his own valuable e-mail subscriber list. (Drudge Dec. ¶ 37.) See CCNV, 490 U.S. at 752-53.

AOL had no role in whether Drudge hired any assistants and, if so, the manner and amount of their compensation. (Drudge Dec. ¶ 30; Jennings Dec. ¶ 20.) Drudge’s "total discretion in hiring and paying assistants" is a further indication of his independent contractor status. CCNV, 490 U.S. at 753.

AOL had no right to assign additional projects to Drudge. (See Jennings Dec. ¶ 10; see generally Agreement ¶ 1.) Indeed, Drudge even declined to include terms in his contract with AOL that would have required him to (1) place a promotional banner for AOL on his own Drudge Report site on the World Wide Web, (2) provide AOL with content other than the content that he would already disseminate through his Web site and to his e-mail subscribers, and (3) participate in efforts to promote the AOL service. (Drudge Dec. ¶ 14.) See CCNV, 490 U.S. at 753.

Drudge uses his own computer equipment, telephone, and other tools to produce the Drudge Report. (Drudge Dec. ¶ 36.) AOL did not provide Drudge with any of the instrumentalities to produce the Drudge Report. (Drudge Dec. ¶ 35-39; Jennings Dec. ¶ 21; Warnock Dec. ¶ 8.) See Nelson, 626 F. Supp. at 978 (fact that writer used his own telephone and typewriter indicated he was not an employee); CCNV, 490 U.S. at 752.

AOL has never reimbursed Drudge for any of his expenses in connection with creating the Drudge Report, including expenses for computers and other office equipment, office rent, travel, or long distance phone calls. (Drudge Dec. ¶ 39; Jennings Dec. ¶ 21; see Warnock Dec. ¶ 8.) See, e.g., Wolcott v. Nationwide Mutual Ins. Co., 884 F.2d 245, 251 (6th Cir. 1989) (payment of one’s own operating and business expenses evidences lack of employee status) ; Building Material v. NLRB, 669 F.2d 759, 765 (D.C. Cir. 1981) (same).

Drudge, not AOL, retained ownership and control of the intellectual property and other intangibles associated with his activities, including the copyright over each of his Drudge Reports, the trademark rights over the "Drudge Report" name, and the list of his e-mail subscribers. (Drudge Dec. ¶¶ 17, 37-38; Wooldridge Dec., Ex. A.) This is inconsistent with an employee-employer relationship, in which the copyright for work product of the employee presumptively belongs to the employer. 17 U.S.C. §§ 101, 201(b).

AOL has never provided Drudge with any employee benefits such as insurance, annual or sick leave, or the option to enroll in a retirement plan. (Warnock Dec. ¶ 7.) The absence of such benefits is a "compelling indic[ation]" of independent contractor status. Spirides, 486 F. Supp. at 688; see also Hi-Tech Video Productions, Inc. v. Capital Cities/ABC, Inc., 58 F.3d 1093, 1097 (6th Cir. 1995).

Since early 1996, Drudge has been registered with the City of Los Angeles to do business under the name "Drudge Report." See Spirides, 486 F. Supp. at 688.

AOL does not withhold income taxes from its royalty payments to Drudge and does not pay the employer’s portion or withhold the employee’s portion of FICA payments on his behalf. (Warnock Dec. ¶ 5.) Such tax treatment is further evidence of independent contractor status. See, e.g., CCNV, 490 U.S. at 751; Spirides, 486 F. Supp. at 688.

AOL does not have the right to terminate the contract with Drudge "at will" without incurring termination liability. (Agreement ¶¶ 6.1-.4.) This also "suggest[s] that [Drudge] was an independent contractor rather than an employee." Weber v. Commissioner, 60 F.3d 1104, 1113 (4th Cir. 1995).

In sum, the undisputed evidence outlined above overwhelmingly demonstrates that Drudge has never been an employee of AOL. This evidence is more than sufficient to compel a ruling in favor of AOL at the summary judgment stage. See, e.g., Martin Marietta Corp. v. Evening Star Newspaper Co., 417 F. Supp. 947, 961-62 (D.D.C. 1976) (concluding on summary judgment that reporter was not newspaper’s employee); see also Chaiken, 119 F.3d at 1033-34 (affirming summary judgment ruling that reporter was not newspaper employee); Nelson, 626 F. Supp. at 978 (finding far fewer indications of independent contractor status than present in this case to constitute "overwhelming proof" sufficient to grant summary judgment on the question of whether author was newspaper employee).

2. Drudge Is Not AOL’s Agent.

Just as clearly, Drudge has never been an agent of AOL. Agency is a "fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." Restatement (Second) Agency § 1; see also General Building Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 393 (1982) ("At the core of agency is a fiduciary relation arising from the consent by one person to another that the other shall act on his behalf and subject to his control") (internal quotations omitted). Thus, an agency relationship requires (1) consent by both parties to the creation of the rights and obligations of agency, (2) the principal’s right to control, and (3) a fiduciary obligation on the part of the agent to act on behalf of the principal. Restatement (Second) Agency § 1; Johnson v. Bechtel Associates Prof. Corp., 717 F.2d 574 (D.C. Cir. 1983), rev’d on other grounds, 467 U.S. 925 (1984); Ludolph v. Bechtel Associates Prof. Corp., 542 F. Supp. 630, 633 (D.D.C. 1982). In addition, some courts have required a showing of "the agent’s power to alter the legal relations between the principal and third parties." United States v. York, 890 F. Supp. 1117, 1133 (D.D.C. 1995) (citing Everman v. Mary Kay Cosmetics, Inc., 967 F.2d 213, 219 (6th Cir. 1992)), rev’d on other grounds, 112 F.3d 1218 (D.C. Cir. 1997); see also Restatement (Second) Agency § 12. Not one of these required elements is present in the AOL-Drudge relationship.

AOL has not consented to have Drudge act on its behalf and Drudge has not consented to do so. (Drudge Dec. ¶¶ 19-20; Jennings Dec. ¶ 12.) In fact, as noted above, the parties have expressly disclaimed any such consent. Their agreement provides:

Neither Party is an agent, representative or partner of the other Party. Neither Party shall have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an . . . agency . . . between the Parties or to impose any liability attributable to such a relationship upon either Party.

(Agreement, Ex. C § VII.) Nothing Drudge or AOL has done or said since the contract was signed has changed the absence of consent by either party that Drudge will act on behalf of AOL or subject to its control. (Drudge Dec. ¶ 20; Jennings Dec. ¶ 12.)

Furthermore, AOL does not have the requisite control over Drudge to create an agency relationship. "It is a fundamental principle of hornbook agency law that an agency relationship arises only where the principal has the right to control the conduct of the agent with respect to matters entrusted to him." International Longshoremen’s Association v. NLRB, 56 F.3d 205 (D.C Cir. 1995) (internal quotations omitted); McFarlane v. Esquire Magazine, 74 F.3d 1296, 1303 (D.C. Cir. 1996) ("[E]stablishment of the principal-agent relationship as a threshold matter is based largely upon control of one party by the other"). As discussed above, Drudge obviously did not act subject to AOL’s control. Even though an agency relationship does not require the level of control over a person’s physical activities that an employment relationship does, here AOL lacks meaningful control over Drudge’s conduct in every sense. AOL cannot require Drudge to write about a particular topic, to check a specific source, to make an editorial change, to follow instructions about the creation of the Drudge Report, or even to have any influence over how often a new edition of the Drudge Report is issued. (See supra at pp. 6-7, 9-10, 20-21; Drudge Dec. ¶¶ 13-14, 19-30; Jennings Dec. ¶¶ 8, 12-20; see Wooldridge Dec. ¶ 12.) Drudge does not have "the obligation of the controlled party of obedience [that is] important to establish that [he] is . . . an agent." Ludolph, 542 F. Supp. at 633; see also International Longshoreman’s Association, 56 F.3d at 213 ("the fact that it is understood that the person acting is not to be subject to the control of the other as to the manner of performance determines that the relation is not that of agency.").

The AOL-Drudge relationship also lacks the essential element of agency that the hired party have a fiduciary duty "to act primarily for the benefit of [the alleged principal] in matters connected with his undertaking." Restatement (Second) Agency § 13 cmt. a. Drudge’s research and writing of the Drudge Report are not primarily for the benefit of AOL. Drudge distributes precisely the same content for free on both his Web site and to his thousands of e-mail subscribers. (Agreement, Ex. A; Drudge Dec. ¶ 13; Jennings Dec. ¶ 13.) Indeed, the great majority of people who had an opportunity to see the edition of the Drudge Report containing the Blumenthal story did so not by visiting the Drudge Report area on the AOL service, but by being subscribers to Drudge’s direct e-mails or by visiting the Drudge Report Web site that Drudge exclusively controlled. (See supra at p. 13.) The AOL-Drudge license agreement expressly contemplated that Drudge would continue to maintain these independent modes of distribution. (Agreement, Ex. A; Jennings Dec. ¶ 13.) In effect, by making his report available for free shortly before he posts it on to the AOL service, Drudge competes with AOL -- the very opposite of acting as a fiduciary. Restatement (Second) Agency § 13 cmt. a (fiduciary duty of agent includes duty "not to compete with the principal on [agent’s] own account").

In essence, the contract between AOL and Drudge requires not that Drudge perform a service "on behalf of" AOL, but that -- like hundreds of other independent content providers such as the New York Times -- he license and deliver to AOL the content of material he already produces, so that such material may be made available to AOL subscribers. But "[a] person who contracts to accomplish something for another or to deliver something to another, but who is not acting as a fiduciary for the other, is a non-agent contractor." Id. § 14N, cmt. b.^/

Thus, far from being an agent of AOL, Drudge does not possess even one of the multiple attributes courts have found to be inherent and essential to a person being another’s agent. Accordingly, the Blumenthals’ attempt to circumvent the protections of Section 230 by conclusorily alleging that Drudge is an employee or an agent of AOL must fail. Drudge is "another" information content provider within the meaning of Section 230, and the statute immunizes AOL from the Blumenthals’ claims based on the statements in the Drudge Report.

C. Holding AOL Liable for Drudge’s Statements in the Drudge Report Would Contravene Congress’s Intent in Enacting Section 230.

Section 230’s preamble and legislative history strongly support the proposition that the statute’s "publisher or speaker" prohibition bars the Blumenthals’ claims against AOL based on statements in the Drudge Report. The preamble and history both demonstrate that Congress enacted Section 230 to foster robust discourse over interactive computer services by ensuring that the intermediaries of such discourse -- service providers such as AOL -- are not held liable for harm caused by third-party content.

Section 230’s preamble announces a congressional finding that "interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity" and that these services have "flourished, to the benefit of all Americans, with a minimum of government regulation."

47 U.S.C. §§ 230(a)(3)-(4) (emphasis added). The preamble also declares that it is "the policy of the United States . . . to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation." Id. §§ 230(b)(2) (emphasis added). Viewed in the context of the whole of Section 230, these declarations reflect Congress’s view that a legal regime under which interactive computer service providers could face tort liability for dissemination of content produced by others inevitably would hurt the development of an emerging communications medium that obviously holds great promise for the Nation.

At the same time, Section 230’s preamble reflects that Congress recognized the need to deter and punish truly harmful online speech and chose to do so by strengthening enforcement of federal criminal laws against actual wrongdoers who originate such speech. The preamble declares that it is the "policy of the United States . . . to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer." Id. § 230(b)(5). Thus, Congress made the policy decision to deter tortious online speech not by punishing the intermediary, but by strengthening the enforcement of legal remedies against a culpable source of unlawful content. See Doe v. America Online, Inc., 1997 WL 374223 at *3.

The legislative history of Section 230 further confirms Congress’s intent to immunize interactive computer services from liability for dissemination of third parties’ tortious online speech. Debate on the bill on the House floor revealed a congressional understanding that interactive service providers should not be responsible for harmful third-party content because the nature of the medium makes it impossible for them systematically to review and edit all third-party content:

There is no way that any of those entities, like Prodigy, can take the responsibility to edit out information that is going to be coming in to them from all manner of sources onto their bulletin board. We are talking about something that is far larger than our daily newspaper. We are talking about something that is going to be thousands of pages of information every day, and to have that imposition imposed on them is wrong. [Section 230] will cure that problem . . . .

141 Cong. Rec. H8471 (Aug. 4, 1995) (statement of Rep. Goodlatte); see also Doe, 1997 WL 374223 at *4. This concern with editing content that originates "from all manner of sources" applies both to messages posted by subscribers and to material supplied pursuant to contracts with third parties. AOL itself has contractual relationships with more than 230 third-party content providers (Jennings Dec. ¶ 6) and could not as a practical matter monitor and edit all of the content that they supply. In recognition of this reality, Section 230 was intended to provide online services "a reasonable way to . . . help them self-regulate themselves without penalty of law." Id. at H8470 (statement of Rep. Barton) (emphasis added).

Congress’s intention to immunize interactive service providers from liability for third-party content is further demonstrated by the statute’s conference report, which states that one of the purposes of Section 230 was to overrule the only reported case in which an interactive service provider had ever been found potentially liable for tortious third-party content. In Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710, at *1, *5 (N.Y. Sup. Ct. May 24, 1995),^/ a state trial court had concluded that Prodigy, which is another interactive service provider, could be liable for an allegedly defamatory message posted by an unidentified bulletin board user. The court decided to treat Prodigy as a publisher of the message because Prodigy had held itself out to the public as a family-oriented service and attempted to exercise editorial control over third-party content. See id. at **3-4. As the Conference Report stated:

One of the specific purposes of [Section 230] is to overrule Stratton-Oakmont v. Prodigy and any other similar decisions which have treated such providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material. The conferees believe that such decisions create serious obstacles to the important federal policy of empowering parents to determine the content of communications their children receive through interactive computer services.

H.R. Conf. Rep. No. 104-458, at 194 (1996).

Thus, the legislative history of Section 230's "publisher or speaker" prohibition reinforces its plain language: online services such as AOL are immune from tort liability arising out of allegedly harmful content originating with third parties.

II. AOL IS ENTITLED TO SUMMARY JUDGMENT ON THE BLUMENTHALS’ CLAIMS AGAINST AOL BASED ON DRUDGE’S ALLEGED ORAL STATEMENTS TO THE PRESS.

The Blumenthals’ claims against AOL based on Drudge’s alleged oral statements to various reporters are meritless for the simple reason that AOL had absolutely no role in their publication and dissemination. AOL is not even mentioned in the Complaint’s factual allegations concerning Drudge’s alleged oral statements to the Washington Post and the New York Post (see Comp. ¶¶ 218-44), and the only mention of AOL in the Complaint’s description of Drudge’s alleged statements to ABC are a few references to AOL’s alleged role in the online publication of the Drudge Report. (Id. ¶¶ 247-48, 251.) Without any basis whatsoever, the Blumenthals simply assert in their claims based on Drudge’s alleged statements to media reporters that AOL itself somehow "published" Drudge’s alleged oral statements. (See, e.g., id. ¶ 384.)

The only conceivable basis upon which AOL could even be thought to be liable for Drudge’s alleged oral statements to the press is if he were acting within the scope of an employment or agency relationship with AOL. But, as established above, Drudge is not an AOL employee or agent as a matter of law.^/ That is especially true with regard to any oral statements he might have made to the press about stories in the Drudge Report, which are not even a subject of Drudge’s contract and which AOL in any event did not authorize him to make. (Drudge Dec. ¶¶ 55-56; Jennings Dec. ¶ 24.) Accordingly, AOL is also entitled to summary judgment with respect to the Blumenthals’ claims relating to Drudge’s alleged oral statements to the press.

CONCLUSION

For the foregoing reasons, AOL should be granted summary judgment and all of the plaintiffs’ claims against AOL should be dismissed with prejudice.

Respectfully submitted,

 _________________________________

Of counsel

George Vradenburg III
Randall J. Boe (D.C. Bar No. 415425)
AMERICA ONLINE, INC.
22000 AOL Way
Dulles, Virginia 20166-9323

Patrick J. Carome (D.C. Bar No. 385676)
John Payton (D.C. Bar No. 282699)
Lawrence A. Kasten (D.C.Bar No. 443307)
Samir Jain
WILMER, CUTLER & PICKERING
2445 M Street, N.W
Washington, D.C. 20037-1420
(202) 663-6000

Attorneys for Defendant AmericaOnline, Inc.

October 20, 1997

Certificate of Service

I hereby certify that, on October 20, 1997, I caused a copy of the foregoing Memorandum of Points and Authorities in Support of Defendant America Online, Inc.’s Motion for Summary Judgment, and the Accompanying Appendix of Exhibits and Authorities, to be served by first-class mail, postage-prepaid, on the following:

William Alden McDaniel, Jr., Esq.
118 West Mulberry Street
Baltimore, Maryland 21201-3600

Manuel S. Klausner, Esq.
One Bunker Hill, 8th Floor
601 West Fifth
Los Angeles, California 90071

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Lawrence A. Kasten