STEPHEN ELLIOTT, Plaintiff, v. MOIRA DONEGAN, and JANE DOES (1–30), Defendants.
18-CV-5680 (LDH)(SJB)
UNITED STATES DISTRICT COURT EASTERN DISTRICT
June 30, 2020
LASHANN DEARCY HALL, United States District Judge
MEMORANDUM AND ORDER
LASHANN DEARCY HALL, United States District Judge:
Plaintiff Stephen Elliott brings the instant action against Defendants Moira Donegan and Jane Does 1-30, alleging defamation of character by libel. Defendant Donegan moves pursuant to
BACKGROUND1
Plaintiff is an author and content creator. (Sec. Am. Compl. (SAC), ¶¶ 15, 50, ECF No 37.) Throughout his career, he has published dozens of articles and opinion pieces, personal essays, and books, including a memoir entitled The Adderall Diaries.2 (Reply Mem. L. Supp. Def. Mot. Dismiss SAC (Def.‘s Reply) Appendix 12-21, ECF No. 45 (compiling a list of books and articles written by and about Plaintiff).) His written work—both fictional and non-fictional—includes graphic and violent descriptions of sex,3 often BDSM.4 Plaintiff describes instances of rape, including
On or about October 11, 2017, Plaintiff‘s name was published on a shared Google spreadsheet entitled “Shitty Media Men,” (the “List“). (SAC ¶¶ 17, 24.) He was identified as a “Freelance writer/novelist.” (Id. ¶ 24.) Under the heading “ALLEGED MISCONDUCT,” Plaintiff‘s entry initially stated, “rape accusations, sexual harassment.” (Id.) On or about and between October 11 and October 12, 2017, the entry regarding Plaintiff was revised to read “rape accusations, sexual harassment [sic], coercion, unsolicited invitations to his apartment, a dude who snuck into Binders???” (Id. ¶ 25.) According to the complaint, Defendant, together with certain Jane Does, outlined Plaintiff‘s entry in red, signaling that Plaintiff was accused of physical sexual violence by multiple women. (Id. ¶ 28.) Likewise, the column headed “NOTES” indicated that “multiple women allege misconduct.” (Id. ¶ 25.) Although the entry for Plaintiff initially appeared at row 13, it was subsequently moved to row 12. (Id. ¶¶ 24-25.) Plaintiff complains that the allegations about him included in the List are false. (Id. ¶¶ 2, 37, 45, 47.)
Defendant Donegan is alleged to have created the List. (Id. ¶ 39.)10 She, along with Jane Does, circulated the List to numerous women in the media industry via email and other electronic means. (Id. ¶ 18.) The purpose of the List was to “encourag[e] women to anonymously publish allegations of sexual misconduct by men” in the media sector. (Id. ¶ 17.) According to Plaintiff, participants were encouraged to publish allegations of misconduct, whether or not they had personal knowledge of the conduct or evidence to corroborate the allegations. (Id. ¶¶ 22-23.) Defendant, together with Jane Does, actively edited, removed, organized, published, highlighted, and added to the list. (Id. ¶ 26.) Defendant is alleged to have added heading names to the columns, including, “NAME, AFFILIATION, ALLEGED MISCONDCUT and NOTES.” (Id. ¶ 20.) Defendant also added a header to the top of the List that read, “Men accused of physical sexual violence by multiple women are highlighted in red.” (Id. ¶ 27.)
On October 12, 2017, Buzzfeed published an article about the existence of the List, and various other news outlets reported on it. (Id. at ¶ 29.) At this point, more than 70 men had been named on the List. (Decl. Martha Fitzgerald (Fitzgerald Decl.) ¶ 3, ECF No. 42, Ex. A at 9, ECF No. 42-1) By Defendant‘s own characterization, the List had gone “viral” and she took the List offline after about 12 hours. (Id. at 10.)
There were pitfalls. The document was indeed vulnerable to false accusations, a concern I took seriously. I added a disclaimer at the top of the spreadsheet: “This document is only a collection of misconduct allegations and rumors. Take everything with a grain of salt.”
(Fitzgerald Decl., Ex A at 7.) Later in the article, Defendant went on to comment about the veracity of the claims:
Some have expressed doubts about the veracity of the claims in the document, but it‘s impossible to deny the extent and severity of the sexual harassment problem in media if you believe even a quarter of the claims that were made on the spreadsheet. For my part, I believe significantly more than that.
(Id. at 9.)
STANDARD OF REVIEW
To withstand a
DISCUSSION
I. Defamation
To state a claim for defamation in New York, a plaintiff must allege: “(1) a written defamatory statement of fact concerning the plaintiff; (2) publication to a third party; (3) fault (either negligence or actual malice depending on the status of the libeled party); (4) falsity of the defamatory statement; and (5) special damages or per se actionability.” Palin v. New York Times Co., 940 F.3d 804, 809 (2d Cir. 2019). With respect to the third element, if a plaintiff is considered a “limited-purpose public figure,” he must “show that the statements were made with ‘actual malice‘—that is, with knowledge that the statements were false or with reckless disregard as to their falsity.” Biro v. Conde Nast, 807 F.3d 541, 544 (2d Cir. 2015). Defendant argues that Plaintiff is a limited-purpose public figure thereby triggering this additional pleading requirement. (Def.‘s Reply 1-3; Def.‘s Resp. Mot. Leave File Sur-Reply (Def.‘s Sur-Reply Resp.) 2, ECF No. 47.) Often this inquiry is undertaken by a court only once parties have completed discovery. However, “[w]here the question whether a plaintiff is a public figure can be determined based upon the pleadings alone, the Court may deem a plaintiff a public figure at the motion to dismiss stage.” Biro v. Conde Nast, 963 F. Supp. 2d 255, 270 (S.D.N.Y. 2013), aff‘d, 807 F.3d 541 (2d Cir. 2015), and aff‘d, 622 F. App‘x 67 (2d Cir. 2015).
(1) successfully invited public attention to his views in an effort to influence others prior to the incident that is the subject of litigation; (2) voluntarily injected himself into a public controversy related to the subject of the litigation; (3) assumed a position of prominence in the public controversy; and (4) maintained regular and continuing access to the media.
Id. (quoting Lerman v. Flynt Distrib. Co., Inc., 745 F.2d 123, 136-37 (2d Cir. 1984), cert. denied, 471 U.S. 1054 (1985)). Plaintiff effectively concedes that he satisfies the first and fourth elements of the limited-purpose public figure test. (See, generally, Pl.‘s Sur-Reply Mem. Law Opp. Def‘s Mot. Dismiss (Pl.‘s Sur-Reply), ECF No. 56.) The crux of the Court‘s undertaking, therefore, is defining the controversy related to the subject of the litigation and then determining whether (1) Plaintiff voluntarily injected himself into that controversy; and (2) assumed a position of prominence within it.
A. Public Controversy
The Second Circuit has defined a public controversy as “any topic upon which sizeable segments of society have different, strongly held views,” even if the topic does “not involve political debate or criticism of public officials.” Lerman, 745 F.2d at 138. Waldbaum v. Fairchild Publications, Inc., an oft-cited D.C. Circuit case, defined a public controversy as a “real dispute, the outcome of which affects the general public or some segment of it in an appreciable way.” 627 F.2d 1287, 1296 (D.C. Cir. 1980); see also Biro, 963 F. Supp. 2d at 272 (quoting same). The Waldbaum court advised that “to determine whether a controversy indeed exists and, if so, to define its contours, [a court] must examine whether persons actually were discussing some specific question.” Waldbaum, 627 F.2d at 1296.
Lerman, a leading Second Circuit case on this issue, provides a helpful illustration as to how a court must approach identifying and defining a public controversy. In Lerman, plaintiff was an internationally renowned author of nine novels. Id. at 137. In now-dated language, the Lerman court described plaintiff as “a controversial, outspoken authoress,” whose books “are full of descriptions of sex, including deviate sex and orgies.” Id. at 137-138. Plaintiff sued for defamation after a magazine published nude photographs and misidentified her as the “starlet” who was topless in one photo and the participant in an orgy scene in another. Id. at 127. While the Lerman court noted that plaintiff had “voluntarily devot[ed] herself to the public‘s interest in sexual mores,” it did not go so far as identifying the controversy related to the subject of the litigation as any aspect of sex, deviate sex, sexual mores, or orgies. Id. at 137. Rather, the Lerman court adopted defendant‘s construction of the controversy that the district court had rejected below—“sex and nudity in films.” Id. In doing so, the court observed that plaintiff wrote about and had been interviewed on the then-controversial topic of whether there is a pervasive inequality with respect to the portrayal of male nudity versus female nudity in film and magazines and advocated for “equal nudes for all.” Id.
In a more recent decision by the Ninth Circuit, Makaeff v. Trump Univ. LLC, the court further illustrated how to hone in on the controversy at play. 715 F.3d 254, 267 (9th Cir. 2013). There, a “disgruntled former customer” sued Trump University for deceptive business practices, among other things, and Trump University counterclaimed for defamation. Id. at 258. Importantly,
Another application of Waldbaum can be found in Jankovic v. Int‘l Crisis Grp., 822 F.3d 576 (D.C. Cir. 2016). In that case, the allegedly defamatory statements made about plaintiff appeared in a report that focused on political and economic issues in Serbia after the assassination of Prime Minister Zoran Djindjic in 2003. Id. at 582-83. The district court had identified the public controversy as the “progress of political and economic reform in Serbia and the integration of Serbia into international institutions” post-2000, which included the period where Djindjic served as Prime Minister before his assassination. Id. at 585. On appeal, plaintiff argued that the controversy should be narrowed to focus only on the post-2003 period because it is “more directly tied to the report which contains the defamation.” Id. at 586. The court observed that “[w]hen defining the relevant controversy, a court may find that there are multiple potential controversies, and it is often true that ‘a narrow controversy may be a phase of another broader one.‘” Id. (quoting Waldbaum, 627 F.2d at 1297 n. 27). The court went on to state, “[plaintiff‘s] view that narrowing the definition of the controversy is required in order to relate it to the publication containing the defamation is not well taken” as controversies have been defined as “broader than the narrower discussion contained in the defamatory document.” Id.
Taking Lerman, Waldbaum, Makaeff, and Jankovic together, several key principles emerge. A controversy is a specific question or real issue being discussed at the time of the defamatory statement. Waldbaum, 627 F.2d at 1296; Makaeff, 715 F.3d at 266. A controversy is broader than only the statement or discussion contained in the allegedly defamatory document. Jankovic, 822, F.3d at 586. That is not to say that there are no bounds to what a controversy entails. For example, as noted above, the Second Circuit defined the controversy in Lerman as “sex and nudity in films,” and not any aspect of sex, sexual mores, or orgies. Lerman, 745 F.2d at 137. Using Lerman as the Court‘s primary signpost, and with these principles in mind, the Court now turns to defining the public controversy here.
The definition of the controversy has been argued at length, with much emphasis placed on Lerman by both sides. Plaintiff has relied on Defendant‘s own description of her rationale in creating the List. Piecing together various passages from Defendant‘s The Cut article, Plaintiff articulates the controversy as, “the ‘intractable problem’ of widespread ‘sexual harassment and assault’ against women as well as the difficulties women face reporting and preventing such harassment and assault.” (Pl.‘s Sur-Reply 4; see also Fitzgerald Decl., Ex A at 3-5).)
For her part, Defendant‘s definition of the controversy has morphed over time. In
The Court agrees with Defendant that the controversy related to the subject of this litigation is inextricably linked to what has been called, in shorthand, the “#MeToo” movement. However, rather than defining the controversy as any aspect of “sex, consent, morality and power“—which would traverse the Second Circuit‘s opinion in Lerman—the Court‘s definition
of the controversy is tethered to the #MeToo movement as it existed at the time of the allegedly defamatory statements in October 2017.
A brief overview of the #MeToo movement is helpful place to start. “Me Too” was first coined in 2006 by Tarana Burke, a Black female activist, as the name for a movement to help victims of sexual harassment and assault.12 #MeToo catapulted into the public‘s consciousness in October 2017. On October 5, 2017, Jodi Kantor and Megan Twohey at the New York Times published an article detailing decades of sexual harassment allegations against the Hollywood producer Harvey Weinstein. (See Def.‘s Mem. 4 n.3 (citing Jodi Kantor and Megan Twohey, Harvey Weinstein Paid Off Sexual Harassment Accusers for Decades, N.Y. TIMES (Oct. 5, 2017), https://www.nytimes.com/2017/10/05/us/harvey-weinstein-harassment-allegations.html).) Five days later, an article in the New Yorker detailed additional allegations against Weinstein.13 On October 15, 2017, actor Alyssa Milano wrote on Twitter, “if you‘ve been sexually harassed or assaulted write ‘me too’ as a reply to this tweet.”14 Within days, thousands heeded her call.15 And thus, the voices of few became many,
(SAC ¶¶ 17, 24.) While the List pre-dated Milano‘s call for “me too” on Twitter by four days, the Court construes the List as part of the nascent #MeToo movement.
But what was the controversy in the first days of #MeToo? The Court follows Waldbaum‘s mandate to “examine whether persons actually were discussing some specific question” at the time of the defamatory statement. 627 F.2d at 1296. In this case, at the time of the defamatory statement—October 11, 2017—the discussions were centered on issues of sexual assault, sexual harassment, and consent in the workplace.16 In the wake of the Weinstein allegations, the burgeoning #MeToo movement was focused on how power dynamics and outdated expectations of gender roles in the workplace have worked to silence women. Milano‘s first public statement about the Weinstein allegations illustrates this. Milano, who published a statement on October 9, 2017, six days before she tweeted “me too,” discussed her reaction to the Weinstein allegations solely in terms of sexual assault, harassment and sexism in workplaces.17 The Weinstein allegations inspired widespread and difficult conversations about what constitutes inappropriate behavior in professional settings and how to construe consent in sexual relationships between prominent industry players and those seeking opportunities within that industry.18 The List itself is evidence of this.
Human-resources departments, in offices that have them, are tasked not with protecting employees but with shielding the company from liability — meaning that in the frequent occasion that the offender is a member of management and the victim is not, HR‘s priorities lie with the accused.
(Fitzgerald Decl. Ex A at 5.)
Defendant presses that Lerman mandates that the controversy be defined “broadly, not narrowly, because of the importance of the First Amendment protection.” (Feb. 7, 2020 Oral Arg. Tr. 10:19-21, ECF No. 64.) The Court agrees and has done so here. In defining the controversy as sexual assault, sexual harassment, and consent in the workplace, the Court has not—as Defendant rightly warns against—shrunk the controversy only to the specific statements of which Plaintiff complains. (Def.‘s Sur-Reply Resp. 2.) Nor has the Court narrowed the controversy to the subject of the publication containing the defamation—sexual assault and harassment in the media industry. See Jankovic, 822 F.3d at 586. Rather, at the time the List was published, there “were multiple potential controversies.” Id. The List was part of broader
discussions regarding sexual assault, sexual harassment and consent in workplaces across the country, and the Court broadly construes the controversy in this case accordingly.
Of course, the #MeToo movement, even in its earliest days, undoubtedly inspired people to share stories about sexual harassment and abuse they experienced outside the workplace. And, it may be true that #MeToo is used today as short-hand for larger discussions regarding consent, power, or sex. However, the Court is bound to consider the specific questions being discussed at the time of the defamatory statement. The specific controversy in the immediate wake of the Weinstein allegations in October 2017 was not about all aspects of sex, consent, morality, and power, as Defendant urges. Defendant‘s own statements and conduct in creating the List reflect that the controversy in play at the time of the allegedly defamatory statement was tied to workplace conduct. Having found that the controversy here is sexual assault, sexual harassment, and consent in the workplace, the Court now turns to whether Plaintiff voluntarily injected himself into that controversy and assumed a position of prominence within it.
B. Voluntary Injection Into and Assumption of Prominence Within the Controversy
“In the public controversies that daily swirl about . . . some plunge into the arena and enter the fray.” Lerman, 745 F.2d at 138. An individual “can become a limited-purpose public figure only through his own actions, by entering voluntarily into one of the submarkets of ideas and opinions, one consents to the rough competition of the marketplace.” Biro, 963 F. Supp 2d at 274 (citing Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996)). Any entry into a controversy does not transform a private individual into a public figure. The “degree of voluntar[y] involvement in the public controversy” is important. Chandok v. Klessig, 648 F. Supp. 2d 449, 458 (N.D.N.Y. 2009) (citing James v. Gannett Co., 40 N.Y.2d 415, 422 (1976)), aff‘d, 632 F.3d 803 (2d Cir. 2011). That is to say, a “trivial or tangential” role will not suffice. Biro, 963 F. Supp 2d at 275 (quoting Underwager v. Salter, 22 F.3d 730, 734 (7th Cir.1994)).
Plaintiff‘s degree of involvement in a controversy surrounding sexual assault, sexual harassment and consent in the workplace, if any, is de minimis. Defendant directed the Court to only a few tangential references to sexual harassment or lewd jokes in the workplace in Plaintiff‘s writing and interviews.19 And the Court is not willing to find that Plaintiff‘s more extensive writings and interviews about sex, BDSM, and sexual assault—unrelated to workplace issues—transforms him into a public figure with respect to the controversy here.20 This is unlike Lerman, where the plaintiff “frequently” spoke on national TV and in interviews with mass media about “sexual inequality,” including that “women more frequently than men appear unclad in films and magazines.” 745 F.2d at 137. In other words, the plaintiff there voluntarily and substantially involved herself in the controversy around sex and nudity in films in her regular media appearances. Here, the same cannot be said.
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As such, Defendant has failed to show that Plaintiff qualifies as a limited-purpose public figure at this pleading stage. Accordingly, Plaintiff need not plead actual malice. Defendant‘s motion to dismiss for failure to state a defamation claim is denied.21
Defendant argues that Plaintiff‘s suit is barred by § 230 of the Communications Decency Act (the “CDA“),
the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”
Nevertheless, dismissal is only appropriate pursuant to § 230 on a motion to dismiss “if the statute‘s barrier to suit is
“The term ‘interactive computer service’ means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server . . . .”
Conversely, the Court is unable to find that it is evident from the face of the complaint that the allegations against Plaintiff included in the List were provided to Defendant by another information content provider. “Information content provider” is defined to include “any person or entity that is responsible, in whole or in part, for the creation or development of information
provided through the Internet or any other interactive computer service.”
The Second Circuit has instructed that a defendant will not be held responsible for the development of information “unless it assisted in the development of what made the content unlawful.” LeadClick, 838 F.3d at 174. “[O]ne is responsible for the ‘development’ of information when [she] engages in an act beyond the normal functions of a publisher (such as deciding to publish, withdraw or modify third-party content) that changes the meaning and purpose of the content.” Ascentive, LLC v. Opinion Corp., 842 F.Supp.2d 450, 474 (E.D.N.Y. 2011) (citing Roommates.Com, 521 F.3d at 1163). By contrast, an individual does not develop content where she provides “neutral assistance,” that is, “tools and functionality that are available equally to bad actors and the . . . intended users.” Herrick v. Grindr, LLC, 306 F. Supp. 3d 579, 589 (S.D.N.Y. 2018) (quoting Roommates.Com, 521 F.3d at 1169), aff‘d, 765 F. App‘x 586 (2d Cir. 2019), cert. denied, 140 S. Ct. 221 (2019). Importantly, a defendant also loses CDA immunity if he or she “specifically encouraged” unlawful content. See LeadClick, 838 F.3d at 174 (“For example, a defendant who paid researchers to uncover confidential phone records protected by law, and then provided that information to paying customers, fell within the definition [of an information content provider] because he did not merely act as a neutral intermediary, but instead ‘specifically encouraged development of what was offensive about the content.‘” (quoting FTC v. Accusearch Inc., 570 F.3d 1187, 1197 (10th Cir. 2009))). Against this backdrop, as detailed below, Plaintiff‘s complaint has not foreclosed the possibility that Defendant created or developed the allegedly unlawful content.
A. Fabrication
CDA immunity does not attach where the defendant is being held accountable for its own unlawful acts. LeadClick, 838 F.3d at 176; Roommates.Com, 521 F.3d at 1162 (“[A]s to content that [a website] creates itself . . . the website is also a content provider.“). Plaintiff alleges, in part, that Defendant fabricated the allegations against him and inputted them in the List. (SAC ¶ 56-57.) The parties—and the Court—agree that CDA immunity does not apply if that is proven true. (Pl.‘s Mem. L. Opp. Def.‘s Mot. Dismiss (“Pl.‘s Opp.“) 18; Def.‘s Reply 8.)
B. Publishing Another‘s Statements
Plaintiff alleges that Defendant published the allegedly defamatory accusations in the List as relayed to her by another person. (SAC ¶ 60.) Defendant argues that, if true, she is shielded by § 230 because she did not materially contribute to their allegedly defamatory meaning, and did not change the meaning and purpose of the content. (Def.‘s Mem. 16.) However, this argument assumes a key fact not known to the Court at this juncture—whether Plaintiff materially contributed to the allegedly defamatory meaning—which is the very fact on which CDA immunity turns. LeadClick, 838 F.3d at 174 (finding that CDA immunity is available to an interactive computer service as long as Defendant has not “materially contribut[ed] to [the content‘s] alleged unlawfulness“). That Plaintiff did not explicitly plead that Defendant materially contributed to the unlawful statements she inputted in the list on someone else‘s behalf is of no consequence. Defendant may not “rel[y] upon the absence of facts not pled in the
Furthermore, Plaintiff also rightly points out that if Defendant inputted information into the List that was not provided to Defendant for use on the Internet, she would not qualify for CDA immunity. (Pl.‘s Opp. 19 n.8.) “The structure and purpose of § 230(c)(1) indicate that the immunity applies only with regard to third-party information provided for use on the Internet or another interactive computer service.” Batzel v. Smith, 333 F.3d 1018, 1033 (9th Cir. 2003) (emphasis in original). Thus, if Defendant wrote the allegedly defamatory statements in the List that had been relayed to her by a third party—and the third party never intended that communication “be placed on an interactive computer service for public viewing“—CDA immunity would not attach. Batzel, 333 F.3d 1033; see also id. (stating that if “an individual who happens to operate a website receives a defamatory ‘snail mail’ letter from an old friend, the website operator cannot be said to have been ‘provided’ the information in his capacity as a website service.“); Roommates.Com, 521 F.3d at 1170 (restating same).
C. Specifically Encouraging Unlawful Content
Plaintiff correctly notes that interactive computer service providers “forfeit their Section 230 immunity if through their website‘s design, or through its headers, or through personal communications with other people, or otherwise, they ‘specifically encourage’ the posting of unlawful content.” (Pl.‘s Opp. 20 (citing LeadClick, 838 F.3d at 174).) On this issue, Plaintiff directs the Court to the disclaimer at the top of the List, which described it as “only a collection of allegations and rumors” that should be taken “with a grain of salt.” (Pl.‘s Opp. 21 (citing SAC ¶ 62).) Plaintiff argues that “[t]his statement alone could reasonably have been interpreted by the List‘s recipients as encouraging them to post their own ‘rumors‘” and “[n]owhere did the List advise users that they were only to post about their own experiences.” (Pl.‘s Opp. 21-22.) To the extent that Plaintiff relies on the List‘s design and headers to argue that Defendant specifically encouraged unlawful content, that reliance would be misplaced.
Roommates.Com provides a helpful illustration as to when the design of a website can be found to have encouraged unlawful content. 521 F.3d 1157 (9th Cir. 2008). Roommates operated a website designed to match individuals seeking roommates. Id. at 1161. As part of the online registration form for the service, Roommates required subscribers to answer questions about their sex, sexual orientation and familial status, and their roommate preferences along these same criteria. Id. The potential answers to these questions were pre-set by Roommates. See, e.g., id. at 1165 (“Subscribers who are seeking housing must make a selection from a drop-down menu, again provided by Roommates, to indicate whether they are willing to live with “Straight or gay” males, only with “Straight” males, only with “Gay” males or with “No males.“). Roommates used the responses to these questions to populate a subscriber‘s profile page. Id. The Ninth Circuit found that Roommates’ website, by design, “force[d] subscribers to divulge protected characteristics and discriminatory preferences, and to match those who have rooms with those who are looking for rooms based on criteria that appear to be prohibited by the FHA [Fair Housing Act].” Id. at 1172. Thus, Roommates was not entitled to CDA immunity on this aspect of the registration form. Id. at 1166 (“By requiring subscribers
Rather, the List, which was circulated in a Google spreadsheet, is akin to the comment boxes in Roommates.Com. Roommates also presented subscribers with a blank text box and prompted subscribers to “tak[e] a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate.” Id. at 1173. Subscribers could write as much or as little as desired, and the responses were visible to other paying subscribers. Id. Certain subscribers took the opportunity to write discriminatory comments such as, “NOT looking for [B]lack [M]uslims.” Id. The Ninth Circuit found that the CDA protected Roommates with respect to these comment boxes. Id. at 1174. The court reasoned that because “Roommate[s] publishes these comments as written,” “[i]t does not provide any specific guidance as to what the essay should contain,” and it does not “urge subscribers to input discriminatory preferences,” Roommates was not responsible for the development of this content. Id. at 1173-74; see also Shiamili v. Real Estate Grp. of New York, Inc., 17 N.Y.3d 281, 291 (2011) (finding that defendant-administrator of a blog was protected by CDA immunity for allegedly defamatory remarks made by an anonymous poster in a discussion thread because, among other things, there was “no allegation that the defamatory comments were posted in response to any specific invitation for users to bash plaintiff“). As with Roommates’ comment box, the possibility that someone may have entered defamatory content into the List does not mean that Defendant specifically encouraged unlawful content. That the Defendant added the disclaimer that the document consisted of “a collection of misconduct allegations and rumors” does not change the Court‘s conclusion. (SAC ¶ 62.) Neither this header nor the design of the spreadsheet urges or requires users to input defamatory statements—or otherwise unlawful content—to view or contribute to the List. In other words, based on the design of the List, that Defendant circulated the List, without more, does not constitute specific encouragement of unlawful content.
That is not to say that Plaintiff‘s complaint has foreclosed the possibility that Defendant encouraged the posting of unlawful content. The full contours of Defendant‘s conduct during the approximately 12 hour period during which her Google spreadsheet was online are unknown at this juncture. Accordingly, Plaintiff is entitled to discovery on whether Defendant specifically encouraged the posting of unlawful content on the List.
D. Highlighting in Red and Annotation of Plaintiff‘s Entry
According to Plaintiff, Defendant outlined his entry in red, signifying that he was “accused of physical sexual violence by multiple women.” (SAC ¶ 27.) Furthermore, she‘s alleged to have annotated his entry in the List with, “Multiple women allege misconduct.” (Id. ¶ 25.) Plaintiff‘s entry included “rape accusations,” in the plural form, as well as “coercion.” (Id.) Plaintiff argues that Defendant materially contributed to the allegedly defamatory
The key question in determining whether a defendant is liable for developing content is not whether she “augment[ed] the content generally,” but instead whether she “materially contribut[ed] to its alleged unlawfulness.” See LeadClick, 838 F.3d at 174 (quoting Roommates.Com, 521 F.3d at 1167–68). Defendant is correct that “visually aggregating or classifying user content does not constitute ‘creation or development’ under Section 230(f)(3).” (Def.‘s Mem. 20.) The implementation of categorization features “constitute[s] quintessential neutral assistance.” Grndr., 306 F. Supp 3d at 589. In other words, categorizing information, without more, “does not transform [a defendant] into a developer of the underlying misinformation.” Id. (internal quotations omitted) (quoting Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1124 (9th Cir. 2003)).
Here, Plaintiff‘s entry included “rape accusations,” in the plural form. (SAC ¶ 25.) In highlighting Plaintiff‘s entry in red, denoting that Plaintiff was “accused of physical sexual violence by multiple women,” Defendant provided neutral assistance or generally augmented the content. Again, the Court rejects, in the strongest possible terms, any argument by Plaintiff that the Defendant materially contributed to the unlawful meaning of the allegations which is premised on a belief that rape does not necessarily involve physical sexual violence. And the Court will not take the
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In sum, the CDA‘s barrier to suit is not evident from the face of the complaint, and Defendant‘s motion to dismiss on the grounds that she is protected by CDA immunity is denied.24
CONCLUSION
For the foregoing reasons, Defendant‘s motion to dismiss is DENIED. However, CDA immunity may prove to be a gating issue in this case and the Court wishes to avoid an unnecessary expenditure of judicial resources. As such, the parties shall proceed without delay to narrowly tailored discovery to address factual issues related to Defendant‘s CDA immunity defense. Once such discovery is completed, the parties may move for summary judgment on CDA immunity in accordance with this Court‘s Individual Practices. The parties may proceed with discovery on the defamation claim should the parties decline to move for summary judgment on CDA immunity or should the claim survive summary judgment.
SO ORDERED.
Dated: Brooklyn, New York /s/ LDH
June 30, 2020 LASHANN DEARCY HALL
United States District Judge