432 F.Supp.3d 495
E.D. Pa.2020Background
- In 2016 Injustice Watch created the Plain View Project (PVP), a searchable website compiling screenshots of public Facebook posts/comments by current and former police officers that PVP believed “could undermine public trust and confidence in police.”
- The PVP homepage, "About" page, and a prominent disclaimer framed the collection as open to interpretations and intended to start a conversation about policing; the site required users to click an "I Understand" acknowledgment to proceed.
- Plaintiff D.F. Pace, a Philadelphia Police Department inspector, had posted the comment "Insightful point" in reply to another officer’s Facebook post; PVP included that screenshot (with Pace’s name unredacted) among other posts.
- Pace sued Injustice Watch and a former employee for defamation-by-implication and false light, alleging that PVP’s framing implied he endorses racism, violence, and biased policing.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6), arguing (inter alia) Section 230 immunity, lack of defamatory meaning, opinion/immunity defenses, and insufficient pleading of actual malice.
- The court denied Section 230 immunity (finding defendants materially contributed to the allegedly defamatory implication by creating the framing narrative) but dismissed the complaint with prejudice on the merits for failure to plead actionable defamatory meaning and for failure to allege actual malice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants are entitled to CDA §230 immunity | PVP framed Pace’s neutral comment with its own narrative, so defendants are both service and content providers and cannot claim §230 protection | Publishing third-party content (even selected/curated) is protected by §230; PVP merely compiled and contextualized others’ posts | Denied §230 immunity: court found PVP’s original framing materially contributed to the alleged implication and thus defeated immunity |
| Whether PVP’s publication is capable of defamatory meaning | The combination of Pace’s comment and PVP’s framing implied Pace endorsed racism/violence and acted on biases as an officer | The site’s language (including a prominent disclaimer) expressed hedged opinion and multiple possible interpretations, so no defamatory factual assertion | Dismissed: court held the statements were non-actionable opinion/implication not capable of a defamatory meaning as pleaded |
| Whether plaintiff adequately pleaded actual malice (required because he is a public official) | Defendants acted maliciously and recklessly in publishing Pace’s comment within the framing narrative; investigative failures show reckless disregard | Plaintiff pleaded only conclusory assertions; failure to investigate alone is not actual malice; no facts show defendants knew or had serious doubts as to falsity | Dismissed: plaintiff failed to plead actual malice plausibly; complaint lacked factual allegations of knowledge of falsity or reckless disregard |
| Remedy / Leave to amend | Plaintiff sought to proceed on defamation/false light claims | Defendants argued dismissal appropriate and urged dismissal with prejudice | Complaint dismissed with prejudice: court concluded amendment would be futile because plaintiff cannot plausibly plead actual malice |
Key Cases Cited
- Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) (§230 protects republishing third‑party content and traditional editorial functions)
- Fair Housing Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (site may be a content provider where it materially contributes to creation/development of content)
- Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) (selection/hosting of user profile content did not make host a content developer for §230 purposes)
- New York Times Co. v. Sullivan, 376 U.S. 254 (U.S. 1964) (public officials must show actual malice to recover for defamation)
- Masson v. New Yorker Magazine, 501 U.S. 496 (U.S. 1991) (actual malice requires deliberate or reckless falsification)
- Fed. Trade Comm’n v. Accusearch, Inc., 570 F.3d 1187 (10th Cir. 2009) (service providers can be liable where they materially contribute to unlawful content)
- Universal Communication Systems, Inc. v. Lycos, 478 F.3d 413 (1st Cir. 2007) (interactive service provider remains liable for its own speech)