Blueberry heir loses libel suit against drunken lothario
Gorilla-fisting comment didn't sit well, apparently
Let this be a lesson to you all: if you sell tickets to a New Year's Eve party boasting an open bar, make sure that the booze doesn't run out at 10:30.
Fail in that, and people will trash you on the internet, and there won't be a damn thing you can do about it, even if you sue the operator of the offending website for defamation.
That's exactly what happened to Anthony DiMeo, III, a self-proclaimed model/actor/PR-firm-owner/blueberry-heir. After his public relations company threw a disastrous New Year's party, posters to the TuckerMax.com message boardssavaged his name, reputation, appearance, sexual predilections and just about every other aspect of his personality imaginable.
DiMeo sued Tucker Max, the operator of the eponymous site, in 2006 and created an instant classic cyber lawsuit. Not so much for the law involved - which the US Third Circuit Court of Appeals last week declared to be in Max's favor - but for a backstory involving alcohol, theft, betrayal and suggestions of gorilla-fisting.
The plaintiff and the player
Both DiMeo and Max are tireless self-promoters with flamboyant web presences. DiMeo's site emphasizes his supposed PR abilities, his philanthropy, his acting and modeling career and his family's blueberry farm. Max's claim to fame is that he is a drunken asshole who likes to write about being a drunken asshole.
DiMeo purports to run a Philadelphia-based PR firm, Renamity, focusing on special events, club promotions and exhibiting a strange fascination with Pennsylvania Senator Arlen Specter.
Max runs a website chronicling his booze-soaked misadventures and lechery, and turned his lurid tales into a bestselling book. He also acts as the administrator for a number of message boards on a wide range of topics where the discourse usually crests at around a 10th grade level.
Neither party in the lawsuit was a stranger to the courtroom when the action commenced. DiMeo had previously sued a Philadelphia Weekly gossip columnist for publicizing and ridiculing a Christmas card he emailed to friends and family, and Max had previously defended a suit by two-time Miss Vermont, Katy Johnson, after Max posted embarrassing and intimate details about their relationship on his site.
DiMeo had received mentions on the TuckerMax.com message boards before the party debacle, always the object of much scorn and derision, but things reached a fever pitch after New Year's Eve 2005.
"Party from hell"
On that night of nights, DiMeo's firm sold $100 tickets to an open bar party at a Philadelphia restaurant, Le Jardin. According to the restaurant owner, the contract was for 325 guests, but at least twice that actually showed up for the festivities.
The food and booze ran out almost immediately. The party goers became unruly, raiding the restaurant for whatever they could find. Two mixed-media artworks were stolen, and one of the revelers tried to make off with the cashbox. DiMeo allegedly walked out of the event once the fracas heated up.
The restaurant's owner finally called in the cops to prevent the mob from tearing itself or his restaurant apart. In the aftermath, each side accused the other of violating the terms of the deal. Renamity filed suit against the restaurant a few days later and the restaurant countersued, both alleging breach of contract.
That's when things heated up on the Web. Several threads about the party opened up on Max's forum. Initially the posts mocked the party, but the comments quickly turned to DiMeo.
The posts were not kind. They bashed his PR career, his sexuality, his blueberry farm, his modeling and his facial features - even going so far as to suggest that DiMeo's expression in modeling shots resulted from an approximation of what it would be like to be fisted by a gorilla.
Crash and burn
Understandably, DiMeo did not much care for the posts. Rather than trying to uncover the identities of the offending posters, however, he elected to sue Max as the operator of the site.
That was DiMeo's second mistake in this whole imbroglio, after not bringing in enough alcohol for the party. Max's site qualifies as an interactive computer service under Section 230 of the Communications Decency Act, according to the courts who weighed in on the case. As such, Max is immune from liability for information posted by third-party content providers.
DiMeo never alleged that Max wrote any of the disputed posts himself, thus the only material in question came from other information providers. The district court determined that Section 230 applied, and dismissed the action.
The Third Circuit agreed with the district court last week. In fact, the Circuit panel released its opinion as a non-precedential ruling, which probably indicates that the judges considered the legal issues so obvious that they didn't think there would be any point in adding their decision to the Circuit's body of case law.
The interesting question now is whether DiMeo has a cause of action against his attorneys for advising him to pursue a lawsuit that looked doomed from the start. Probably not, but considering that DiMeo recently declared bankruptcy, his bankruptcy trustee might want to consider bringing one anyway, just to roll the dice.
After all, what's one more lawsuit in all this? ®