Dawn Bennett v. Google LLC ( 2018 )


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  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued January 18, 2018            Decided February 23, 2018
    No. 17-7106
    DAWN BENNETT AND
    DJ BENNETT HOLDINGS, LLC,
    APPELLANTS
    v.
    GOOGLE, LLC,
    APPELLEE
    Appeal from the United States District Court
    for the District of Columbia
    (No. 1:16-cv-02283)
    Harry J. Jordan argued the cause and filed the briefs for
    the appellants.
    John K. Roche argued the cause and filed the brief for the
    appellee.
    Before: HENDERSON, ROGERS and KAVANAUGH, Circuit
    Judges.
    Opinion for the Court filed by Circuit Judge HENDERSON.
    2
    KAREN LECRAFT HENDERSON, Circuit Judge: Offended by
    a third-party blog post, Plaintiff Dawn Bennett (Bennett) and
    her company, DJ Bennett Holdings, LLC (DJ Bennett), sued
    Google LLC (Google) for failing to remove the post. They
    alleged three state-law causes of action: (1) defamation; (2)
    tortious interference with a business relationship; and (3)
    intentional infliction of emotional distress. The district court
    granted Google’s motion to dismiss, concluding that the
    Communications Decency Act (CDA), 
    47 U.S.C. § 230
    ,
    immunized Google from liability for the publication of third-
    party content. We affirm.
    I.
    Bennett owns DJ Bennett, a retailer of high-end sports
    apparel.1 Scott Pierson is the founder of The Executive SEO
    Agency, which provides search engine optimization and
    marketing (SEO) services. In March 2013, DJ Bennett hired
    Pierson to provide SEO services, seeking to increase its sales.
    After a few months, the parties’ relationship deteriorated and
    Pierson agreed to renegotiate his contract and accept slightly
    less than $20,000 as full payment for his services.
    DJ Bennett paid Pierson in five installments but the fifth
    installment was returned by the post office as “undeliverable.”
    Thereafter, Pierson called DJ Bennett’s Vice President and
    General Merchandise Manager, Anderson McNeill.
    According to McNeill, Pierson was “hysterical” and
    “emotionally distraught.” Compl. ¶ 10. Pierson threatened
    DJ Bennett, declaring “I know things, I can do things, and I will
    shut down your website.” 
    Id.
     In response, McNeil explained
    1
    The relevant facts are drawn from the complaint and are
    accepted as accurate for this appeal. Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 572 (2007).
    3
    that DJ Bennett had attempted to mail Pierson his final check
    but that it had been returned. Pierson then gave McNeil an
    alternative address, “the last payment was sent there, and
    [Pierson] cashed it.” 
    Id.
    After the business relationship fell apart, Pierson wrote a
    blog titled “DJ Bennett-think-twice-bad business ethics” and
    published it on the internet through Google. Id. ¶ 11. Among
    other things, the blog asserted that (1) “DJ Bennett, the luxury
    sporting goods company, did not pay its employees or
    contractors”; (2) DJ Bennett was “ruthlessly run by Dawn
    Bennett who also operated Bennett Group Financial Services”;
    (3) Bennett falsely stated that Pierson had agreed to reduce his
    hours “as justification for reducing his final invoice by
    $3,200”; (4) Pierson’s counsel described Bennett as “judgment
    proof”; and (5) “DJ Bennett owes thousands and thousands to
    many people.” Id. ¶¶ 11-12. The blog concluded: “I urge
    you to think twice before giving your patronage to DJ
    Bennett.com . . . . The website is pretty, but the person running
    the show is quite contemptible.” Id. ¶ 12.
    Through counsel, Bennett attempted to convince Pierson
    to remove the post; Pierson refused. Bennett’s counsel also
    contacted Google’s general counsel and other senior corporate
    officers, “asking them to drop Pierson’s blog because it
    violated Google’s Guidelines of what is appropriate material
    for inclusion in blogs.” Id. ¶ 13. Notwithstanding Bennett’s
    complaints, Google “continues[] to publish Pierson’s blog.”
    Id. Bennett also alleged that “as of May 23, 2016, not a single
    comment has been received in two years; Pierson was
    artificially maintaining his blog in a favorable position by using
    black-hat tactics, a practice universally condemned by the
    digital media industry, including Google.” Id.
    4
    Google has a “Blogger Content Policy” that regulates,
    inter alia, adult content, child safety, hate speech, crude
    content, violence, harassment, copyright infringement, and
    malware and viruses.2 Joint Appendix (JA) 42-45. Users are
    encouraged to “flag[]” policy violations through the website.
    JA 45. If Google finds that the blog does violate its content
    policies, it may limit access to the blog, delete the blog, disable
    the author’s access or report the user to law enforcement. Id.
    If the blog does not violate Google’s policies, Google “will not
    take any action against the blog or blog owner.” Id.
    II.
    We review the district court’s dismissal de novo.
    Klayman v. Zuckerberg, 
    753 F.3d 1354
    , 1357 (D.C. Cir. 2014).
    The CDA recognizes that the internet offers “a forum for a true
    diversity of political discourse, unique opportunities for
    cultural development, and myriad avenues for intellectual
    activity.” 3 
    47 U.S.C. § 230
    (a)(3). Accordingly, the Act
    codifies “the policy of the United States (1) to promote the
    2
    The “Blogger Content Policy” is not attached to the
    complaint or the motion to dismiss but it is included in the Joint
    Appendix. Although Google does not challenge its admissibility, it
    is unclear if we may take judicial notice of it. See Kaempe v. Myers,
    
    367 F.3d 958
    , 965 (D.C. Cir. 2004) (taking judicial notice of public
    records). Because the Policy does not alter our analysis, however,
    we consider it as background only.
    3
    The Communications Decency Act is something of a
    misnomer; the Act does not promote decency so much as it acts as a
    bulwark against “intrusive government regulation of speech.”
    Zeran v. Am. Online, Inc., 
    129 F.3d 327
    , 330 (4th Cir. 1997).
    Although unrestrained speech can often be several shades from
    decent, see Cohen v. California, 
    403 U.S. 15
     (1971), that is the
    tradeoff that the Congress has apparently endorsed by insulating
    computer service providers from liability, 
    47 U.S.C. § 230
    (c)(1).
    5
    continued development of the Internet and other interactive
    computer services . . . [and] (2) to preserve the vibrant and
    competitive free market that presently exists for the
    Internet . . . .” 
    47 U.S.C. § 230
    (b). In accordance with that
    policy, section 230 of the CDA contains a “Protection for
    ‘Good Samaritan’ blocking and screening of offensive
    material,” which reads: “[n]o provider or user of an interactive
    computer service shall be treated as the publisher or speaker of
    any information provided by another information content
    provider.” 
    Id.
     § 230(c)(1). It further states: “[n]o provider or
    user of an interactive computer service shall be held liable on
    account of . . . any action voluntarily taken in good faith to
    restrict access to or availability of material that the provider or
    user considers to be obscene, lewd, lascivious, filthy,
    excessively violent, harassing, or otherwise objectionable.”
    Id. § 230(c)(2). To give these provisions teeth, section 230
    provides that “[n]o cause of action may be brought and no
    liability may be imposed under any State or local law that is
    inconsistent with this section.” Id. § 230(e)(3).
    The seminal case of Zeran v. America Online, Inc. 4
    explained the core functions of the CDA more than two
    decades ago:
    The amount of information communicated via
    interactive computer services is . . . staggering.
    The specter of tort liability in an area of such
    prolific speech would have an obvious chilling
    4
    On the 20th anniversary of the CDA, Zeran was heralded as
    “internet law’s most important judicial decision.” Eric Goldman &
    Jeff Kosseff, Commemorating the 20th Anniversary of Internet
    Law’s Most Important Judicial Decision, THE RECORDER (Nov. 10,
    2017), perma.cc/RR2M-UZ2M.
    6
    effect. It would be impossible for service
    providers to screen each of their millions of
    postings for possible problems. Faced with
    potential liability for each message republished
    by their services, interactive computer service
    providers might choose to severely restrict the
    number and type of messages posted.
    Congress considered the weight of the speech
    interests implicated and chose to immunize
    service providers to avoid any such restrictive
    effect.
    
    129 F.3d 327
    , 331 (4th Cir. 1997). The intent of the CDA is
    thus to promote rather than chill internet speech. 
    Id.
     By the
    same token, however, the CDA “encourage[s] service
    providers to self-regulate the dissemination of offensive
    material over their services.” 
    Id.
     In that respect, the CDA
    corrected the trajectory of earlier state court decisions that had
    held computer service providers liable when they removed
    some—but not all—offensive material from their websites.
    
    Id.
     (analyzing legislative history and explaining holding of
    Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94,
    
    1995 WL 323710
     (N.Y. Sup. Ct. May 24, 1995)). Put
    differently, section 230 incentivized companies to neither
    restrict content nor bury their heads in the sand in order to avoid
    liability. 
    Id.
     And in doing so, it paved the way for a robust
    new forum for public speech as well as “a trillion-dollar
    industry centered around user-generated content.” Eric
    Goldman & Jeff Kosseff, Commemorating the 20th
    Anniversary of Internet Law’s Most Important Judicial
    Decision, THE RECORDER (Nov. 10, 2017), perma.cc/RR2M-
    UZ2M.
    Like other circuits, we have followed Zeran’s lead and
    created a three-part test to determine CDA preemption.
    7
    Klayman, 753 F.3d at 1357-59 (citing Zeran and related
    precedent from other circuits).        Google can establish
    immunity by showing that (1) it is a “provider or user of an
    interactive computer service”; (2) the relevant blog post
    contains “information provided by another information content
    provider”; and (3) the complaint seeks to hold Google liable as
    the “publisher or speaker” of the blog post. Id. at 1357
    (quoting 
    47 U.S.C. § 230
    (c)). Thus, there is a dividing line
    between “interactive computer service”5 providers—which are
    generally eligible for CDA section 230 immunity—and
    “information content provider[s],”6 which are not entitled to
    immunity. 
    Id.
     The law, then, distinguishes “service” from
    “content.” 
    Id.
    In Klayman, we held that “a website does not create or
    develop content when it merely provides a neutral means by
    which third parties can post information of their own
    independent choosing online.” 
    Id. at 1358
    . We noted that,
    although the Facebook website’s “Statement of Rights and
    Responsibilities” might create an independent cause of action
    for breach of contract, the statement did not change the fact that
    the plaintiff was seeking to hold Facebook liable as a
    “publisher” of the objectionable material. 
    Id. at 1359
    .
    Accordingly, we affirmed the district court’s dismissal of the
    5
    “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, including specifically a service or system that provides access
    to the Internet and such systems operated or services offered by
    libraries or educational institutions.” 
    47 U.S.C. § 230
    (f)(2).
    6
    “The term ‘information content provider’ means 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.” 
    47 U.S.C. § 230
    (f)(3).
    8
    plaintiff’s claims pursuant to section 230 of the CDA. Id.; see
    also Zeran, 
    129 F.3d at 331
     (rejecting argument that defendant
    was “distributor” rather than “publisher” under CDA because
    it acquired “knowledge of the defamatory statements’
    existence”).7
    This case is controlled by the three-part test in Klayman.
    First, as many other courts have found, Google qualifies as an
    “interactive computer service” provider because it “provides or
    enables computer access by multiple users to a computer
    7
    Bennett places great reliance on the Ninth Circuit’s holding
    in Fair Housing Council of San Fernando Valley v. Roommates.com,
    LLC, 
    521 F.3d 1157
    , 1163 (9th Cir. 2008) (en banc). We of course
    are not bound by extra-circuit precedent but we nonetheless take a
    moment to distinguish Roommates.com, concluding that it cannot
    bear the weight of Bennett’s reliance because it marks an outer limit
    of CDA immunity—a limit that this case does not even approach.
    In Roommates.com, the court held that a website can simultaneously
    be an “interactive computer service” provider and an “information
    content provider” (e.g., it can provide both services and content).
    Roommates.com, 
    521 F.3d at 1162
    . The court concluded that the
    defendant had, “at least in part,” helped develop content on its
    website by requiring users to select from a “limited set of pre-
    populated answers” as part of the registration process. 
    Id. at 1166
    .
    For example, when creating a “Roommates.com” profile, the user
    had to state his sex and sexual orientation and identify whether he
    had children. 
    Id. at 1161-62
    . Because Roommates.com created
    the universe of pre-populated answers, required users to answer its
    questions before registering and used those answers in providing
    tailored services to its users, the court held that Roommates.com was
    a content provider as well as a service provider and that it was not
    entitled to CDA immunity for the content that remained on its site.
    
    Id. at 1164
    . In so holding, the Ninth Circuit emphasized that
    “Congress sought to immunize the removal of user-generated
    content, not the creation of content.” 
    Id. at 1163
     (emphasis in
    original).
    9
    server.” 
    47 U.S.C. § 230
    (f)(2); see, e.g., Parker v. Google,
    Inc., 
    422 F. Supp. 2d 492
    , 501 (E.D. Pa. 2006), aff’d 242 F.
    App’x 833 (3d Cir. 2007) (“[T]here is no doubt that Google
    qualifies as an ‘interactive computer service’ and not an
    ‘information content provider.’”). Indeed, Bennett concedes
    that fact. Appellant’s Br. 6 (“Google provides interactive
    computer services, including websites and social media
    platforms.”). Second, Bennett alleges that only Pierson—and
    not Google—created the offensive content on the blog.
    Compl. ¶¶ 11-12.
    Third, Bennett seeks to hold Google liable as a publisher
    of the content. Bennett argues that by establishing and
    enforcing its Blogger Content Policy, Google is influencing—
    and thus creating—the content it publishes. This argument
    ignores the core of CDA immunity, that is, “the very essence
    of publishing is making the decision whether to print or retract
    a given piece of content.” Klayman, 753 F.3d at 1359. In
    other words, there is a sharp dividing line between input and
    output in the CDA context. Id. Here, the input is the content
    of Pierson’s negative blog about Bennett’s business; that blog
    was created exclusively by Pierson. Google’s role was strictly
    one of output control; it had the choice of leaving Pierson’s
    post on its website or retracting it. It did not edit Pierson’s
    post nor did it dictate what Pierson should write. Because
    Google’s choice was limited to a “yes” or “no” decision
    whether to remove the post, its action constituted “the very
    essence of publishing.” Id.
    In sum, the CDA “allows [computer service providers] to
    establish standards of decency without risking liability for
    doing so.” Green v. Am. Online, Inc., 
    318 F.3d 465
    , 472 (3d
    Cir. 2003). Although “other types of publishing activities
    might shade into creating or developing content,” the decision
    to print or retract is fundamentally a publishing decision for
    10
    which the CDA provides explicit immunity. Klayman, 753
    F.3d at 1359 n.*; see Zeran, 
    129 F.3d at 332
     (“[B]oth the
    negligent communication of a defamatory statement and the
    failure to remove such a statement when first communicated by
    another party . . . constitute publication.”). “None of this
    means, of course, that the original culpable party who posts
    defamatory messages [will] escape accountability.” Zeran,
    
    129 F.3d at 330
    . It means only that, if Bennett takes issue with
    Pierson’s post, her legal remedy is against Pierson himself as
    the content provider, not against Google as the publisher.
    For the foregoing reasons, the judgment of dismissal is
    affirmed.
    So ordered.