On his first day as a senior White House staff member, Sidney Blumenthal was startled to read in the Drudge Report (available only on the Internet) that he was believed by "top GOP operatives" to have a "spousal abuse past that has been effectively covered up." That charge was said to reflect accusations in court records. When Blumenthal and his wife protested, the Report's editor and publisher Matt Drudge retracted the charge and later apologized. He conceded there was no credible basis for the story, and eventually removed that day's edition from the electronic archive of Drudge Reports.

   The Blumenthals, not satisfied with the apology, filed a libel suit in federal district court naming not only Matt Drudge but also America Online, Inc. Shortly before the offending publication, AOL had concluded (and widely publicized) a licensing agreement by which it would make the Drudge Report available to its subscribers. Matt Drudge was to receive $3,000 a month, and AOL retained the right to "remove, or direct [Drudge] to remove, any content" deemed in violation of its policies.

   Both defendants moved to dismiss the libel suit - Drudge for lack of personal jurisdiction (since he lived and worked in California) and AOL because of the immunity that federal law conferred on Internet service providers for material they carried but had not created. In late April 1998, District Judge Paul Friedman issued a preliminary ruling dismissing AOL from the case but keeping the suit alive against Drudge. Three separate facets of Judge Friedman's ruling deserve attention.

AOL Immunity

   AOL's immunity was the most striking part of the preliminary ruling. Congress had provided, in Section 230 of the Communications Decency Act, that Internet service providers could not be held civilly liable for material (defamatory or otherwise harmful) originated or posted by others. That law was the basis for the dismissal last year of Kenneth Zeran's suit against AOL for harm caused by anonymous postings. The U.S. Court of Appeals for the Fourth Circuit affirmed that dismissal, adopting an expansive view of Section 230, and in early 1998 the Supreme Court declined to review the case. The Blumenthals, however, insisted this case was completely different; AOL was not simply a passive conduit, as it had been in Zeran, but an active (and beneficiary) participant in Drudge's editorial escapades.

   Judge Friedman ruled, somewhat reluctantly, that the statutory immunity applied here as fully as it had in Zeran. Though he would have held otherwise "if I were writing on a clean slate," Congress had made a different policy choice by providing immunity even where the Internet service provider (ISP) has an active and even aggressive role in making available content prepared by others. Thus ISPs could "take advantage of all the benefits conferred in the Communications Decency Act, and then some, without accepting any of the burdens.... " This interpretation of Section 230 is bound to be challenged on the inevitable appeal from Judge Friedman's final ruling.

Jurisdiction

   Meanwhile, Matt Drudge did not fare nearly so well. He insisted that he was beyond the jurisdiction of federal courts in the District of Columbia; he was a California resident, e-mailed the Report from his apartment in Hollywood, and barely ever returned to the Washington area (where he had grown up). Judge Friedman saw his status quite differently and kept him in the case. Clearly the injury that triggered the suit had occurred in the District, an essential basis for jurisdiction. Moreover, several key factors distinguished this case from others in which a single passive posting has been held not to confer jurisdiction in all states where that posting may be accessed. The Drudge Report was interactive, and through the Web site readers could both communicate with the editor and subscribe to future issues. The subject matter of the Report, noted the judge, "primarily concerns political gossip and rumor in Washington, D.C."

   Moreover, "Drudge specifically targets readers in the District of Columbia by virtue of the subjects he covers and even solicits gossip from District residents and government officials who work here." The Drudge Web site also actively "solicited contributions from District residents" - albeit with little apparent success. In addition, Drudge also had "a number of non-Internet contacts with the District" - an in-studio C-SPAN interview, and persistent telephone and mail contacts with Washingtonians. Thus many factors carried this case well beyond the purely passive Internet posting that would not normally confer jurisdiction on the basis of access alone.

Reporter or Gossipmonger?

   Finally, Judge Friedman dropped an ominous hint about Matt Drudge's status as a member of the news media. The defense had argued against personal jurisdiction in the District in part because of a "news gathering exception" to the "long-arm" statute defining who was subject to suit there. But Judge Friedman ruled that the claim "merits no serious consideration." Drudge, he declared in a footnote, "is not a reporter, a journalist or a newsgatherer. He is, as he himself admits, simply a purveyor of gossip." This comment may imply Judge Friedman's doubt about whether Drudge can claim the New York Times privilege of fair comment about public officials and public figures - surely Sidney Blumenthal is both - in defamation suits.

   Though the Supreme Court once extended that privilege beyond newspapers and magazines, specifically to a credit-rating agency, some question about its availability in this case lurks in Judge Friedman's portentous footnote, albeit aimed at jurisdiction only. The issue of the Times privilege - and whether Drudge's admitted lack of care would amount to such "actual malice" as would overcome the privilege - are issues that will surely unfold as the case moves toward a judgment on the merits and quite possibly a protracted trial.