Judge Friedman Hears Pretrial Motions
in Blumenthal v. Drudge and AOL

(March 11, 1998)  U.S. District Court Judge Paul Friedman heard arguments on two key pre-trial motions in the defamation case, Blumenthal v. Matt Drudge and America Online.  AOL moved to have the claims against it dismissed on the grounds the § 230 of the Telecom Act of 1996 immunizes online services from liability for the torts of its content providers.  Drudge moved to have the claims against him heard in California, where he lives, rather than in Washington, D.C.  Friedman made no rulings.

America Online's Section 230 Argument

The claim by Blumenthal against Drudge has attracted considerable media attention.   Yet, it is the little noticed claim against American Online that has potentially far reaching consequences for the future of the internet.  If online services, website operators, bulletin board managers, and other interactive computer services can be held liable for material written by others, then they will be less likely to take material written by others and the internet would be a much bleaker place.

Section 230 of the massive Telecom Act of 1996 protects interactive computer services from lawsuits based on defamation by information content providers.  It provides in part that:

"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."

Blumenthal, in his claim against AOL, seeks to circumvent this clause.  AOL lawyer Patrick Carome based his argument on this clause.  He further argued that without this section, and its enforcement by the courts, online services would have a disincentive to include content written by others.  He stated that "the future of the electronic medium .. would be imperilled ... if online services were liable for every tortious act that flows through".

Carome also pointed out that other courts applying this section have ruled in AOL's favor.  He relied particularly on the recent Appeals Court ruling in Zeran v. America Online. 

At today's hearing, questions from Judge Friedman suggest that he is considering various theories for holding America Online liable, notwithstanding Section 230.   "Could America Online wear two hats ... could be a conduit, but also be a content provider ... America Online would not be immunized because it is a content provider?"

Also, Friedman asked regarding AOL having been aware of Matt Drudge's method of reporting and notoriety, "Doesn't America Online have to take some responsibility?"

AOL attorneys departed after the hearing without answering questions from the press.

The Blumenthal v. Drudge Circus

The underlying defamation claim has received considerable public attention, in part because of the political celebrity of the characters.  Drudge was the first journalist to report on Monica Lewinski.  Blumenthal is a Clinton aide handling press communications for Clinton regarding Ken Starr's investigation.

About 50 persons attended the hearing, including at least 11 lawyers and over two dozen journalists.   Lawyers for both Blumenthal and Drudge tailored their arguments in court to the press, and then went outside the courtroom to conduct press conferences.  Their oral arguments were short on legal precedent and argument, and often irrelevent to the issues before the court, although highly quotable.

The main issues before the court were technical: whether Section 230 barred the claim against AOL, and whether the District of Columbia's long arm jurisdiction statute gives the DC courts the right to hear the suit against Drudge.   Legally, whether or not Drudge defamed Blumenthal was not the subject of today's motions.   Yet lawyers for Drudge and Blumenthal were intent on arguing the underlying merits of the defamation claim, and associated public policy issues.

Judge Friedman did lose his patience when Drudge's lawyer Manuel Klausner made arguments about the importance of a free press, and the appropriateness of Drudge's reporting.  "Why does this case have anything to do with what you are talking about?"  He again interrupted: "What does that have to do with the District of Columbia long arm statute?"  And finally, "In my view, everything you have said up to this point is totally irrelevant."

He also conveyed his attitude about Drudge's reporting: "There was a time when the press did not report rumors."

Blumenthal wants the court to force Drudge to divulge the sources of his news story, which Blumenthal alleges was false and defamatory.  Meanwhile, in the Monica Lewinski matter, Blumenthal appeared at the same courthouse last week and denounced Special Prosecutor Ken Starr for trying to force him divulge whether he had spread false and defamatory information to the press about Ken Starr's staff.  Today, Blumenthal lawyer McDaniel insisted to the press after the hearing that there was nothing inconsistent, or even ironic, about Blumenthal's two positions.

Drudge stated that this case is "a lawsuit being driven by the highest office in the land."  Meanwhile, his attorney, Manuel Klausner, spoke of the "White House Armada."  McDaniel denied these characterizations.

Drudge lawyer Klausner also predicted to the press that the case against AOL will be dismissed.  He reasoned that the reason Blumenthal included AOL in the suit was to try to intimidate AOL and other news providers from carrying or reporting materials embarrising to the Clinton administration.

AOL, which appeared in court with at least four lawyers from the prestigious (and expensive) law firm of Wilmer, Cutler, and Pickering, will have incurred significant legal expenses even if Friedman dismisses the claims against it.

Judge Friedman is a recent Clinton appointee, and was previously a top assistant to former Special Prosecutor Lawrence Walsh.