SARAH JONES, Plaintiff-Appellee, v. DIRTY WORLD ENTERTAINMENT RECORDINGS LLC, et al., Defendants, HOOMAN KARAMIAN, aka Nik Richie, aka Corbin Grimes; DIRTY WORLD, LLC, dba thedirty.com, Defendants-Appellants.
No. 13-5946
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
June 16, 2014
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 14a0125p.06. Argued: May 1, 2014. Decided and Filed: June 16, 2014. Before: GUY, GIBBONS, and GRIFFIN, Circuit Judges.
COUNSEL
OPINION
JULIA SMITH GIBBONS, Circuit Judge. This case presents the issue of whether the Communications Decency Act of 1996 (CDA),
In response to the posts appearing on www.TheDirty.com, Jones brought an action in federal district court alleging state
This is a case of first impression in this circuit. In Doe v. SexSearch.com, 551 F.3d 412, 416 (6th Cir. 2008), we “explicitly reserve[d] the question of [the] scope [of the CDA] for another day.” We now consider when a website is not an “information content provider” under
Jones was found to be the object of defamatory content published on a user-generated, online tabloid; however, the judgment in her favor cannot stand. Under the CDA, Richie and Dirty World were neither the creators nor the developers of the challenged defamatory content that was published on the website. Jones‘s tort claims are grounded on the statements of another content provider yet seek to impose liability on Dirty World and Richie as if they were the publishers or speakers of those statements. Section 230(c)(1) therefore bars Jones‘s claims. Accordingly, we vacate the judgment in favor of Jones and reverse the district court‘s denial of Dirty World‘s and Richie‘s motion for judgment as a matter of law with instructions to enter judgment as a matter of law in their favor.
I.
Richie is currently employed as the manager of DIRTY WORLD, LLC (“Dirty World“), which owns and operates the website www.TheDirty.com. Richie is also the founder of www.DirtyScottsdale.com, which he started in March 2007. Richie created www.DirtyScottsdale.com as a forum to post comments and observations about residents of Scottsdale who he believed warranted comment. Richie‘s website garnered attention from national media, and, as the site increased in popularity, it branched out to cover more than seventy different cities in the United States and Canada. The site then adopted a geographically neutral name—www.TheDirty.com. The website receives approximately six hundred thousand visits each day and eighteen million visits each month.
As the website grew, its focus and format changed. In the beginning, Richie created nearly all the content on the site, and users could not directly upload content. This is no longer true. For the past several years and currently, users of the site, who colloquially refer to themselves as “The Dirty Army,” may submit “dirt“—i.e., content that may include text, photographs, or video about any subject. Users may also post comments about the content submitted by others. The vast majority of the content appearing on www.TheDirty.com is comprised of submissions uploaded directly by third-party users.
The content submission form instructs users to “Tell us what‘s happening. Remember to tell us who, what, when, where, why.” The content submission
appear on the website as though they were authored by a single, anonymous author—“THE DIRTY ARMY.” This eponymous introduction is automatically added to every post that Richie receives from a third-party user. Many, but not all, of the submissions and commentaries appearing on the website relate to stories, news, and gossip about local individuals who are not public figures. The site receives thousands of new submissions each day. Richie or his staff selects and edits approximately 150 to 200 submissions for publication each day. The editing done to published submissions only consists of deletion. Richie or his staff briefly reviews each submission selected for publication to ensure that nudity, obscenity, threats of violence, profanity, and racial slurs are removed. Richie typically adds a short, one-line comment about the post with “some sort of humorous or satirical observation.” Richie, however, does not materially change, create, or modify any part of the user-generated submission, nor does he fact-check submissions for accuracy. Apart from his clearly denoted comments appended at the end of each submission, which appear in bold-face text and are signed “-nik,” Richie does not create any of the posts that appear on www.TheDirty.com. The bold-face text and signature are designed to distinguish editorial remarks from third-party submissions. Comments that appear in bold face and are signed “-nik” are only written and published by Richie.
Sarah Jones is a resident of northern Kentucky. Jones was a teacher at Dixie Heights High School in Edgewood, Kentucky, and a member of the Cincinnati BenGals, the cheerleading squad for the Cincinnati Bengals professional football team. From October 2009 to January 2010, Jones was the subject of several submissions posted by anonymous users on www.TheDirty.com and of editorial remarks posted by Richie.
First, on October 27, 2009, a visitor to www.TheDirty.com submitted two photographs of Jones and a male companion and the following post:
THE DIRTY ARMY: Nik, this is Sara J, Cincinnati Bengal Cheerleader. She‘s been spotted around town lately with the infamous Shayne Graham. She has also slept with every other Bengal Football player. This girl is a teacher too!! You would think with Graham‘s paycheck he could attract something a little easier on the eyes Nik!
Appearing directly beneath this post, Richie added:
Everyone in Cincinnati knows this kicker is a Sex Addict. It is no secret... he can‘t even keep relationships because his Red Rocket has freckles that need to be touched constantly. – nik
Jones requested that the post be removed. Richie informed Jones that the post would not be removed.
Second, on December 7, 2009, a visitor submitted a photograph of Jones and the following post:
THE DIRTY ARMY: Nik, here we have Sarah J, captain cheerleader of the playoff bound cinci bengals. . Most ppl see Sarah has [sic] a gorgeous cheerleader AND highschool teacher. . yes she‘s also a teacher. . but what most of you don‘t know is. . Her ex Nate. . cheated on her with over 50 girls in 4 yrs. . in that time he tested positive for Chlamydia Infection and Gonorrhea. . so im sure Sarah also has both. . whats worse is he brags about doing sarah in the gym. . football field. . her class room at the school she teaches at DIXIE Heights.
Third, on December 9, 2009, a visitor submitted another photograph of Jones and a male companion and the following post:
THE DIRTY ARMY: Nik, ok you all seen the past posting of the dirty Bengals cheerleader/teacher. . . well here is her main man Nate. Posted a few pics of the infected couple. Oh an for everyone saying sarah is so gorgeous check her out in these non photoshopped pics.
Appearing directly after this post, Richie added:
Cool tribal tat man. For a second yesterday I was jealous of those high school kids for having a cheerleader teacher, but not anymore. – nik
Jones sent Richie over twenty-seven emails, pleading for Richie to remove these posts from the website, to no avail. Jones‘s father similarly wrote to Richie, also to no avail. She then sought legal help, and her attorney informed Richie that if the posts were not removed by December 14, 2009, Jones would file suit. The posts were not removed. Jones, qua Jane Doe, filed in federal district court this action on December 23, 2009, against Dirty World Entertainment Recordings, LLC, which operated a website called www.thedirt.com. Apparently, Jones sued the wrong party, as neither Richie nor Dirty World has or ever had any relationship
with either Dirty World Entertainment Recordings, LLC, or www.thedirt.com.1 Nevertheless, the lawsuit sparked national media attention, which precipitated further postings on www.TheDirty.com regarding Jones.
For instance, on December 29, a visitor submitted a photograph and the following post:
THE DIRTY ARMY: Nik, i just saw the Huffington Post and I just [sic] the latest post on beat Bang-GALS cheer squad and back in May I was out clubbing in Cinci and those cheer chicks were hosting the club and i could not believe how ugly they were, here is some pics of them from that night.
Richie added:
I think they all need to be kicked off and the Cincinnati Bengals should start over. Note to self: Never try to battle the DIRTY ARMY. – nik
Also, on December 29, 2009, a visitor to the website published two photographs and the following post:
THE DIRTY ARMY: Nik since the Bengals organization loves you so much i decided to submit some pics from a recent cheerleader calendar release party I went to, to show how beat there squad is with out make up and being half naked. Reality is their cheerleaders are FUGLY and the whole NFL thinks they are beat.
Richie added:
I love how the DIRTY ARMY has a war mentality. . . why go after one ugly cheerleader when you can go after all the brown baggers. (Sorry Cleveland Browns that was not a stab at your girls.) – nik
On January 9, 2010, the October 27, 2009, submission was reposted after Richie added an additional comment, which specifically related to the 2009 NFL playoffs. After the litigation commenced, Richie posted a public letter to Jones:
If you know the truth then why do you care? With all the media attention this is only going to get worse for you. Your lawyer is trying to make a name for himself using you as his pawn. If anything me just seeing your face on the news right now will get you fired from your job. All you had to do is read the FAQ
section like every other normal person to get stuff removed. You dug your own grave here Sarah. I am a very reasonable person... hope it was worth it.- nik.
He also removed the first three posts regarding Jones. The posts on www.TheDirty.com humiliated Jones, allegedly undermining her position as an educator, her membership in the Cincinnati BenGals, and her personal life.
Jones amended her action to proceed against Dirty World Entertainment Recordings, LLC, dba www.thedirt.com; Hooman Karamian, aka Nik Richie, aka Corbin Grimes; Dirty World, LLC, dba www.TheDirty.com; and Dirty World Entertainment, LLC, dba www.TheDirty.com, alleging claims of defamation, libel per se, false light, and intentional inflection of emotional distress. Dirty World moved to dismiss, arguing that the district court lacked jurisdiction over Dirty World and that Jones failed to state a claim upon which relief may be granted. Richie (formerly known as Hooman Karamian) also moved to dismiss, arguing insufficiency of service of process, lack of personal jurisdiction, and failure to state a claim upon which relief may be granted. The district court denied both motions. See Jones v. Dirty World Entm‘t Recordings, LLC (Jones II), No. 2009-219, 2011 WL 1457343, at *1−2 (E.D. Ky. Apr. 15, 2011); Jones v. Dirty World Entm‘t Recordings, LLC (Jones I), 766 F. Supp. 2d 828, 828−36 (E.D. Ky. 2011). In their motions to dismiss, both Dirty World and Richie argued that under the CDA,
Dirty World and Richie then moved for summary judgment, arguing that
Dirty World and Richie then filed a motion under Federal Rule of Civil Procedure 54(b), requesting that the court change its order holding that Dirty World and Richie were not entitled to immunity under the CDA. In the alternative, Dirty World and Richie moved for an order certifying the issue for an immediate interlocutory appeal pursuant to
The case was submitted to the second jury, which returned a verdict in favor of Jones for $38,000 in compensatory damages and $300,000 in punitive damages. The district court entered a judgment in favor of Jones. Dirty World and Richie timely filed a notice of appeal from the district court‘s (1) entry of final judgment in favor of Jones, (2) denial of their motions to dismiss for lack of personal jurisdiction, and (3) denial of their motion for judgment as a matter of law. The sole issue on appeal is whether the district court erred in denying Dirty World‘s and Richie‘s motion for judgment as a matter of law by holding that the CDA does not bar Jones‘s state tort claims.
II.
A.
“We review a district court‘s denial of a motion for judgment as a matter of law or a renewed motion for judgment as a matter of law de novo.” Noble v. Brinker Int‘l, Inc., 391 F.3d 715, 720 (6th Cir. 2004) (citing United States v. Alpine Indus., Inc., 352 F.3d 1017, 1022 (6th
Cir. 2003)). The only claim that Dirty World and Richie raise on appeal is entitlement to immunity under the CDA. Appellants argued immunity under the CDA several times before the district court; hence, the claim is properly presented on appeal, cf. Dunlap v. Mich. Dep‘t of Corr., 65 F. App‘x 971, 972 (6th Cir. 2003), and reviewed de novo, Smith v. Leis, 407 F. App‘x 918, 927 (6th Cir. 2011) (“Claims of entitlement to immunity are questions of law, therefore they are reviewed de novo.“). Any other claim or defense that they argued before the district court is waived. See Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 544 n.8 (6th Cir. 2002) (“It is well established that an issue not raised in a party‘s briefs on appeal may be deemed waived.” (citing Ahlers v. Schebil, 188 F.3d 365, 374 (6th Cir. 1999))).
B.
We begin with a discussion of
Ben Ezra, Weinstein, & Co. v. AOL, 206 F.3d 980, 984−85 (10th Cir. 2000); Zeran v. AOL, 129 F.3d 327, 328 (4th Cir. 1997). Furthermore,
Section 230 marks a departure from the common-law rule that allocates liability to publishers or distributors of tortious material written or prepared by others. See Batzel, 333 F.3d at 1026−27. “Absent § 230, a person who published or distributed speech over the Internet could be held liable for defamation even if he or she was not the author of the defamatory text, and, indeed, at least with regard to publishers, even if unaware of the statement.” Id. (citing Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995) (pre-CDA case holding internet service provider liable for posting by third party on one of its electronic bulletin boards)). Congress, however, decided to treat the internet differently. Id.
At its core,
By barring publisher-liability and notice-liability defamation claims lodged against interactive computer service providers,
providers, who would then face a choice: remove the content or face litigation costs and potential liability. See Zeran, 129 F.3d at 331 (“The specter of tort liability in an area of such prolific speech would have an obvious chilling effect.“). Immunity shields service providers
The protection provided by
Section 230(c)(1)‘s grant of immunity is not without limits, however.3 It applies only to the extent that an interactive computer service provider is not also the information content provider of the content at issue. An “information content provider” is defined as “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.”
Aware of this limit on
C.
This case turns on how narrowly or capaciously the statutory term “development” in
In our two opinions addressing the CDA, this court has neither expounded the meaning of “development” in
By contrast, an overly exclusive interpretation of “development” would exclude all the publishing, editorial, and screening functions of a website operator from the set of actions that the term denotes. Some courts have implied this interpretation, however. See, e.g., Doe v. SexSearch.com, 502 F. Supp. 2d 719, 727 (N.D. Ohio 2007), aff‘d, 551 F.3d 412 (6th Cir. 2008). But we have refused to adopt
Therefore, limited circuit precedent suggests the proper interpretation of “development of information provided through the Internet,”
Beyond providing a basis to identify overly inclusive and exclusive interpretations of “development” in
roommate. Id. The fair housing councils of San Fernando Valley and San Diego sued, alleging that the website violated the Fair Housing Act and state housing discrimination laws. Id. at 1162. The court held that a website operator was not entitled to immunity with respect to allegedly unlawful content that it required its users to submit and with respect to the search engine that was built on that content. Id. at 1165−68. But the court also held that the website was immune as to claims based on the website‘s encouragement that users provide additional comments, some of which were alleged to be discriminatory. Id. at 1173−75. To arrive at these divergent holdings, the court applied a specific measure of development:
[W]e interpret the term “development” as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.
521 F.3d at 1167−68 (emphasis added). A material contribution to the alleged illegality of the content does not mean merely taking action that is necessary to the display of allegedly illegal content. Rather, it means being responsible for what makes the displayed content allegedly unlawful. Cf. Chicago Lawyers’ Comm., 519 F.3d at 671 (“Causation . . . must refer to causing a particular statement to be made, or perhaps the discriminatory content of a statement. That‘s the sense in which a non-publisher can cause a discriminatory ad,
If an individual uses an ordinary search engine to query for a “white roommate,” the search engine has not contributed to any alleged unlawfulness in the individual‘s conduct; providing neutral tools to carry out what may be unlawful or illicit searches does not amount to “development” for purposes of the immunity exception. A dating website that requires users to enter their sex, race, religion and marital status through drop-down menus, and that provides means for users to search along the same lines, retains its CDA immunity insofar as it does not contribute to any alleged illegality.
521 F.3d at 1169. In contrast to this example, the court observed that Roommates required subscribers to disclose information about protected characteristics as a condition of accessing its service and “designed its search and email systems to limit the listings available to subscribers based on sex, sexual orientation and presence of children.” Id. at 1166, 1169. Because
Roommates required information about protected characteristics and engineered its search and email systems to limit access to housing listings based on those protected characteristics, the court held that the website materially contributed to the alleged illegality of hiding certain listings. See id. at 1166−69, 1172.
The court also gave specific examples of the application of the material contribution test for a website that solicits, edits, and displays content originating from third parties (i.e., a website akin to www.TheDirty.com). For example:
A website operator who edits user-created content—such as by correcting spelling, removing obscenity or trimming for length—retains his immunity for any illegality in the user-created content, provided that the edits are unrelated to the illegality. However, a website operator who edits in a manner that contributes to the alleged illegality—such as by removing the word “not” from a user‘s message reading “[Name] did not steal the artwork” in order to transform an innocent message into a libelous one—is directly involved in the alleged illegality and thus not immune.
Id. at 1169 (alteration in original); see also Batzel, 333 F.3d at 1035 (holding that an editor of an email newsletter who received and published allegedly actionable information, adding a short headnote, was immune under
And any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230. But if the editor publishes material that he does not believe was tendered to him for posting online, then he is the one making the affirmative decision to publish, and so he contributes materially to its allegedly unlawful dissemination. He is thus properly deemed a developer and not entitled to CDA immunity.
521 F.3d at 1170−71 (internal citations omitted).
Accordingly, the Roommates court held that
Roommate publishes these comments as written. It does not provide any specific guidance as to what the essay should contain, nor does it urge subscribers to input discriminatory preferences. Roommate is not responsible, in whole or in part, for
the development of this content, which comes entirely from subscribers and is passively displayed by Roommate. Without reviewing every essay, Roommate would have no way to distinguish unlawful discriminatory preferences from perfectly legitimate statements. Nor can there be any doubt that this information was tendered to Roommate for publication online. This is precisely the kind of situation for which section 230 was designed to provide immunity.
Id. at 1173−74 (internal citation omitted). Furthermore, the court rejected the argument made by the fair housing councils that the website developed the allegedly illegal content displayed in the additional comments section because the website encouraged the submission of discriminatory preferences. Id. at 1174. The court reasoned that “[t]he fact that Roommate encourages subscribers to provide something in response to the prompt is not enough to make it a ‘develop[er]’ of the information.” Id. (second alteration in original). Because “Roommate does not tell subscribers what kind of information they should or must include as ‘Additional Comments,’ and certainly does not encourage or enhance any discriminatory content created by users,” the court held that the operation of the additional comments section did not materially contribute to the alleged unlawfulness of the content displayed on the website‘s comments section. Id.
The material contribution test has been adopted and applied by other circuits, with instructive effect. Compare Nemet, 591 F.3d at 257−58 (holding that a website did not contribute to alleged illegality), with Accusearch, 570 F.3d at 1200−01 (holding that a website did contribute to alleged illegality). In Nemet, Nemet, the owner of a Chevrolet dealership, sued Consumeraffairs.com, a website allowing users to comment on the quality of goods and services, after various allegedly tortious, third-party posts appeared on the website relating to automobiles sold or serviced by him. 591 F.3d at 252. The website claimed immunity under the CDA. Nemet responded that the website was, in fact, an information content provider under
even intimate, that Consumeraffairs.com contributed to the allegedly fraudulent nature of the comments at issue.” Id. at 257 (internal quotation marks omitted).
In Accusearch, Accusearch operated a website that sold the confidential information of individuals, including their telephone records, which the website paid researchers to obtain. 570 F.3d at 1190. The Federal Trade Commission brought suit against the website operator to curtail its sale of confidential information and to disgorge its profits from the sale of information in telephone records. Id. Accusearch claimed immunity under the CDA, arguing that it merely displayed the allegedly illegal conduct that originated from its third-party researchers. Id. The panel rejected this argument and held that the
Other circuits, while not explicitly relying on Roommates‘s material contribution test, have issued decisions consistent with it. See, e.g., Johnson, 614 F.3d at 791 (holding that a website hosting company was immune to state tort claims grounded on unwelcome content posted to a client‘s website); Chicago Lawyers’ Comm., 519 F.3d at 671 (holding that craigslist.com was immune to fair housing claims based on discriminatory listings posted by third parties); Green, 318 F.3d at 471 (holding that AOL was immune to state tort claims grounded on third-party content); Ben Ezra, 206 F.3d at 984−85 (holding that defendant was immune to the defamation claim when it made its own editorial decisions with respect to third-party information published on its website); Zeran, 129 F.3d at 330−35.
D.
Consistent with our sister circuits, we adopt the material contribution test to determine whether a website operator is “responsible, in whole or in part, for the creation or development of [allegedly tortious] information.”
The district court read the foregoing decisions, identified Roommates as the guiding precedent, but derived a different rule. In its memorandum opinion explaining the denial of Dirty World‘s and Richie‘s Rule 50 motion, the district court gave two formulations of a rule providing when the CDA does not bar a plaintiff‘s claim. First, the district court said that a “website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts becomes a ‘creator’ or ‘developer’ of that content and is not entitled to immunity.” Jones IV, 965 F. Supp. 2d at 821. Second, in a different formulation, the district court said that “if . . . [website] owners, as in the instant case, invite invidious postings, elaborate on them with comments of their own, and call upon others to respond in kind, the immunity does not apply.” Id. at 822. The district court arrived at these rules by over-reading the operative language contained in the analytic parts of Johnson, Accusearch, and Chicago Lawyers’ Committee. See id. at 820 (finding that the Johnson “ruling was based on the fact that ‘the record contains no evidence that [the internet service provider] designed its website to be a portal for defamatory material or [did] anything to induce defamatory postings‘” (alterations in original) (quoting Johnson, 614 F.3d at 792)); id. (finding that the Accusearch court “held that one is not ‘responsible’ for ‘developing’ allegedly actionable information only ‘if one‘s conduct was neutral with respect
521 F.3d at 1166−69, or that contractors conduct unlawful action, cf. Accusearch, 570 F.3d at 1200−01.
We do not adopt the district court‘s encouragement test of immunity under the CDA. The district court misapprehended how other circuits, particularly the Ninth Circuit in Roommates, have separated what constitutes “development” in
More importantly, an encouragement test would inflate the meaning of “development” to the point of eclipsing the immunity from publisher-liability that Congress established. Many websites not only allow but also actively invite and encourage users to post particular types of
content. Some of this content will be unwelcome to others—e.g., unfavorable reviews of consumer products and services, allegations of price gouging, complaints of fraud on consumers, reports of bed bugs, collections of cease-and-desist notices relating to online speech. And much of this content is commented upon by the website operators who make the forum available. Indeed, much of it is “adopted” by website operators, gathered into reports, and republished online. Under an encouragement test of development, these websites would lose the immunity under the CDA and be subject to hecklers’ suits aimed at the publisher. Moreover, under the district court‘s rule,
The district court also suggested that when an interactive computer service provider adds commentary to third-party content that “ratifies or adopts” that content, then the provider becomes a “creator” or “developer” of that content and is not entitled to the CDA‘s protection. Jones IV, 965 F. Supp. 2d at 821; see also id. at 823 (“Thus, Richie‘s conduct cannot be said to have been ‘neutral with respect to the offensiveness of the content,’ such that he is not ‘responsible’ for it within the meaning of
theory of “development” would undermine the CDA for the same reasons as an encouragement theory. See Parisi v. Sinclair, 774 F. Supp. 2d 310, 316 (D.D.C. 2011) (dismissing plaintiffs’ claims as barred by the CDA despite their argument that defendant “adopted” the statements at issue as its own and finding that “it would be contrary to the purpose of the CDA, which sought to encourage the vibrant and competitive free market of ideas on the Internet, by establishing immunity for internet publication of third-party content to require a fact-based analysis of if and when a defendant adopted particular statements and revoke immunity on that basis” (internal citations and quotation marks omitted)).
III.
We now apply the material contribution measure of “development” to the facts of this case. Jones‘s defamation claims target the statements that were posted by a third party on October 27 and December 7, 2009. Because Dirty World and Richie did not materially contribute to the illegality of those statements, the CDA bars Jones‘s claims. See Nemet, 591 F.3d at 260 (affirming dismissal where plaintiff failed to show defendant “was responsible for the creation or development of the allegedly defamatory content at issue” (emphasis added)).
Dirty World and Richie did not author the statements at issue; however, they did select the statements for publication. But Richie and Dirty World cannot be found to have materially contributed to the defamatory content of the statements posted on October 27 and December 7,
Unlike in Roommates, the website that Richie operated did not require users to post illegal or actionable content as a condition of use. Cf. Roommates, 521 F.3d at 1165−68. Nor does the name of the website, www.TheDirty.com, suggest that only illegal or actionable content will be published. Unlike in Accusearch, Richie or Dirty World did not compensate users for the submission of unlawful content. Cf. Accusearch, 570 F.3d at 1200−01. The website‘s content submission form simply instructs users to “[t]ell us what‘s happening. Remember to tell us who, what, when, where, why.” The form additionally provides labels by which to categorize the submission. These tools, neutral (both in orientation and design) as to what third parties submit, do not constitute a material contribution to any defamatory speech that is uploaded. See Nemet, 591 F.3d at 256 (finding that the “structure and design of [defendant‘s] website” and the website‘s “solicit[ion of] its customers’ complaints [and] steer[ing] them into specific categor[ies]” did not constitute development under
Further, Richie‘s comment on the December 7 post—viz., “Why are all high school teachers freaks in the sack?“—although absurd, did not materially contribute to the defamatory content of the statements uploaded on October 27 and December 7, 2009. Richie‘s remark was made after each of the defamatory postings had already been displayed. It would break the concepts of responsibility and material contribution to hold Richie responsible for the defamatory content of speech because he later commented on that speech. Although ludicrous, Richie‘s remarks did not materially contribute to the defamatory content of the posts appearing on the website. More importantly, the CDA bars claims lodged against website operators for their editorial functions, such as the posting of comments concerning third-party posts, so long as those comments are not themselves actionable. See Zeran, 129 F.3d at 330; see also
To be sure, Richie was an information content provider as to his comment on the December 7 post. But Jones did not allege that Richie‘s comments were defamatory. And the district court did not hold that Richie‘s comments were themselves tortious. Rather, the court
concluded that those comments “effectively ratified and adopted the defamatory third-party post” and thereby developed the defamatory statements, thus ruling that the CDA did
Because (1) the defendants are interactive service providers, (2) the statements at issue were provided by another information content provider, and (3) Jones‘s claim seeks to treat the defendants as a publisher or speaker of those statements, the CDA bars Jones‘s claims. See Universal Commc‘n Sys., 478 F.3d at 418. Given the role that the CDA plays in an open and robust internet by preventing the speech-chilling threat of the heckler‘s veto, we point out that determinations of immunity under the CDA should be resolved at an earlier stage of litigation.4 See Nemet, 591 F.3d at 254 (“[I]mmunity is an immunity from suit rather than a mere defense to liability [and] is effectively lost if a case is erroneously permitted to go to trial.“).
IV.
We note that the broad immunity furnished by the CDA does not necessarily leave persons who are the objects of anonymously posted, online, defamatory content without a remedy. In this case, Jones conceded that she did not attempt to recover from the person(s) whose comments Richie elected to publish. She conceded that she did not attempt to subpoena Richie or Dirty World to discover who authored the defamatory posts. Instead, she sued Dirty World and Richie. But, under the CDA, Jones cannot seek her recovery from the online publisher where that publisher did not materially contribute to the tortious content. Congress envisioned a free and open internet, see
exercises of the considerable freedom that Congress allowed online publishers are regrettable, freedom and its uses are distinct. Congress enacted
For the foregoing reasons, we vacate the judgment in favor of Jones and reverse the district court‘s denial of Dirty World‘s and Richie‘s motion for judgment as a matter of law with instructions to enter judgment as a matter of law in their favor.