Baer Business Law – Greater Philadelphia Area – Intellectual Property Law – Business Law – E Commerce – Contracts – Trademarks – Copyrights

Philadelphia’s troubled racial history intersected with cutting-edge Internet law in a recent scandal that has rocked the Police Department and triggered a civil rights class action suit by organizations representing African-American police officers.

Domelights.com is an Internet message board operated by and for Philadelphia police officers (the domain name refers to the rotating colored lights that you do not want to see in your rearview mirror when you are speeding or implicated in some worse offense). Posting anonymously, police officers, firefighters and others use the site to engage in no-holds-barred commentary and criticism about the Police Department and crime and policing issues in Philadelphia generally. The site has gained a substantial following among police officers for its candid and unvarnished content and is widely read within the Department.

As might be expected in a racially divided urban area with stubbornly high crime rates, many of the comments posted on Domelights.com are highly provocative, particularly those criticizing perceived cultural attitudes and behavior patterns among some members of Philadelphia’s lower-income African-American community. As might further be expected, this commentary is a mixed bag: some of it raises difficult but important issues that bear examination, some is rather crass and knee-jerk, and a few posts are downright racist.

Last Thursday (July 23), the administrator of Domelights.com, named on the site only as “McQ” (but identified by the press as Police Sergeant Frank McQuiggan), shut down the site in response to the local and national media attention generated by a federal civil rights lawsuit filed by the Guardian Civic League, the National Association of Black Law Enforcement Officers and the NAACP against the Philadelphia Police Department as well as the website, its operators and users in their private capacities. The suit essentially alleges that the operating and moderating of Domelights.com and its frequent viewing and use, all of which allegedly took place both at and outside of work, have created a “racially offensive and hostile work environment” for black police officers in violation of federal anti-discrimination statutes; the plaintiffs are seeking compensatory and punitive damages, as well as an injunction shutting down the site. (As mentioned above, the site has already been voluntarily suspended, although the duration of this hiatus is unknown. Philadelphia Police Commissioner Charles Ramsey has also blocked access to Domelights.com from Police Department computers.)

The demand for action to be taken against the site and the police officers who operate and use it obviously raises First Amendment concerns, but for purposes of this blog, our focus will be the question of whether a website operator can legally be held responsible for racist postings by site users. The Communications Decency Act of 1996 (CDA), 47 U.S.C. § 230 et seq., immunizes a provider of an “interactive computer service” from liability for most state and federal claims arising from objectionable content posted by third parties: “No provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” See 47 U.S.C. § 230(c)(1)). Websites fall within the statutory definition of an “interactive computer service.”

The CDA immunity was enacted to promote robust and unfettered free speech on the Internet by insulating website operators and ISPs from defamation claims and other actions which are triggered by objectionable content originating with third parties and for which the site operator or ISP merely provides a forum or conduit. It would be difficult or impossible for the operator of a website with thousands of users to pre-screen all posts for tortious or other unlawful content, and the law does not require this. Courts have held the CDA immunity to preclude a wide variety of claims against websites relating to offensive, tortious and even dangerous activities of their users, including, in a recent decision involving MySpace, an alleged failure to implement security measures to prevent sexually predatory behavior by users against other users. Sites that exercise the traditional function of a publisher by editing content normally do not lose CDA immunity by virtue of this activity, and the CDA provides a further immunity for restricting access to objectionable content.

However, CDA immunity is not unlimited. The CDA categorically excludes certain types of claims from the immunity, such as intellectual property claims and federal criminal violations. In addition, certain actions of a website in developing or soliciting objectionable material can render the site an “information content provider” with respect to such material (defined as someone “responsible, in whole or in part, for the creation or development of” the material) and thus prevent it from asserting CDA immunity if the material in question is unlawful. For example, aggressive editing that transforms the meaning of a post in an objectionable way (such as by making it defamatory) has been held to strip a website of CDA immunity.

Two recent federal appellate court decisions, both involving the anti-discrimination prohibitions in the federal Fair Housing Act, will be important in determining whether Domelights.com is immune from federal civil rights liability. In Chicago Lawyers Committee for Civil Rights Under Law, Inc. v. craigslist, Inc., 519 F.3d 666 (7th Cir. 2008), the Seventh Circuit held that craigslist was immune from liabiliy for discriminatory housing advertisements posted in its classifieds section. On the other hand, in Fair Housing Council of San Fernando Valley v. Rommmates.com LLC, 521 F.3d 1157 (9th Cir. 2008), the Ninth Circuit reached a different result, holding that a site connecting prospective roommates according to their backgrounds and preferences was not immune from potential Fair Housing Act Liability.

The Fair Housing Council case hinged on a subtle analysis of the site’s role in eliciting information about preferred sexual orientation and other factors in mandatory questionnaires that were used to create member profiles, and then publishing and distributing these profiles in a selective manner (i.e., using a member’s preferences to determine which other members would receives notices about his or her roommate search and/or be permitted to view that user’s profile). The court found that the site’s active role in soliciting and enabling potentially discriminatory communications and decision-making robbed it of CDA immunity. This case is confusing and a bit troubling, especially because other courts have held that a site does not lose CDA immunity simply by providing tools that facilitate user communications.

Based on the legal authority, Domelights.com itself should be able to escape liability for third-party posts it did not have a role in creating or soliciting, even if the creation, distribution and viewing of these posts does rise to the level of a civil rights violation (which is unclear). Of course, the officers involved are in a world of trouble regardless, and the image and integrity of the Philadelphia Police Department have been sullied yet again, which is unfortunate.

In writing this post, I do not mean to excuse the sort of racism alleged in the plaintiffs’ complaint. A couple of the posts cited in the complaint are absolutely appalling, as are certain vicious and threatening posts made on Domelights.com against the Guardian Civic League President Rochelle Bilal in response to her suit. Such conduct is a unacceptable and a disgrace for the City of Philadelphia, even if Ms. Bilal’s suit is not entirely fair to the Police Department and creates a constitutional and cyberlaw conundrum.

I write only as a humble Internet lawyer interpreting the applicable statute and case law. Having said that, since a major part of my job is to represent clients who enable and provide emerging technologies and media, I will confess that, like the drafters of the CDA’s immunity clause, I have a bias in favor of promoting freedom of cyberspeech, even when that expression is (as it so often is) repellent.