Larry Klayman v. Mark Zuckerberg , 753 F.3d 1354 ( 2014 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 25, 2014 Decided June 13, 2014
No. 13-7017
LARRY ELLIOTT KLAYMAN,
APPELLANT
v.
MARK ZUCKERBERG AND FACEBOOK, INC.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:11-cv-00874)
Larry Klayman argued the cause and filed the brief for
appellant.
Craig S. Primis argued the causes for appellees. With
him on the brief was K. Winn Allen.
Before: TATEL, BROWN and MILLETT, Circuit Judges.
Opinion for the Court filed by Circuit Judge MILLETT.
MILLETT, Circuit Judge: Three years ago, plaintiff-
appellant Larry Klayman encountered a page on Facebook’s
social networking website entitled “Third Palestinian
2
Intifada,” which called for Muslims to rise up and kill the
Jewish people. Facebook subsequently removed the Third
Intifada page from its website, but not promptly enough for
Klayman. He filed suit against Facebook and its founder,
Mark Zuckerberg, alleging that their delay in removing that
page and similar pages constituted intentional assault and
negligence. The district court held that the Communications
Decency Act of 1996, 47 U.S.C. § 230, shielded Zuckerberg
and Facebook from suit. We affirm.
I
In enacting the Communications Decency Act, Congress
found that the Internet and related computer services
“represent an extraordinary advance in the availability of
educational and informational resources,” and “offer a forum
for a true diversity of political discourse, unique opportunities
for cultural development, and myriad avenues for intellectual
activity.” 47 U.S.C. § 230(a). The Internet has done so,
Congress stressed, “with a minimum of government
regulation.” Id. Congress accordingly made it the “policy of
the United States” to “promote the continued development of
the Internet,” and “to preserve the vibrant and competitive
free market that presently exists for the Internet and other
interactive computer services, unfettered by Federal or State
regulation[.]” Id. § 230(b).
To that end, Section 230(c) of the Act commands that
“[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.” 47 U.S.C.
§ 230(c)(1). A later section of the Act adds preemptive bite to
that prohibition, providing that “[n]o cause of action may be
brought and no liability may be imposed under any State or
3
local law that is inconsistent with this section.” Id.§ 230(e)(3).
As relevant here, the Act defines a protected “interactive
computer service” as “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[.]” 47 U.S.C. § 230(f)(2). An information content
provider, in turn, 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.” Id. § 230(f)(3).
Facebook is an Internet-based social networking website
that allows its users worldwide to share information, opinions,
and other content of the users’ own choosing for free.
Klayman v. Zuckerberg, 910 F. Supp. 2d 314, 316 (D.D.C.
2012). Like millions of others, Larry Klayman maintains a
Facebook account. When he joined Facebook, the Statement
of Rights and Responsibilities for users advised Klayman that
Facebook does its “best to keep Facebook safe, but we cannot
guarantee it,” J.A. 23, and that “YOU USE IT AT YOUR
OWN RISK. WE ARE PROVIDING FACEBOOK ‘AS IS’
WITHOUT ANY EXPRESS OR IMPLIED
WARRANTIES,” J.A. 26 (capitalization in original). The
Statement continued: “FACEBOOK IS NOT
RESPONSIBLE FOR THE ACTIONS, CONTENT,
INFORMATION, OR DATA OF THIRD PARTIES[.]” J.A.
27 (capitalization in original).
While using the site a few years ago, Klayman came
across a page entitled “Third Palestinian Intifada,” which
called for an uprising to take place after the completion of
4
Islamic prayers on May 15, 2011, and proclaimed that
“Judgment Day will be brought upon us only once Muslims
have killed all the Jews.” More than 360,000 Facebook users
were members of the group; three similar pages calling for a
Third Intifada attracted over 7,000 members. Compl. ¶ 7.
At some point, Israel’s Minister for Public Diplomacy
wrote a letter to Facebook and Mark Zuckerberg to request
that the Intifada pages be removed. Klayman alleges that he
also requested removal of the pages, but does not indicate
when. After “many days,” Facebook removed the pages.
Compl. ¶ 12.
Klayman subsequently sued Facebook and Mark
Zuckerberg (collectively, “Facebook”), in the Superior Court
for the District of Columbia, alleging that their insufficiently
prompt removal of the Third Intifada pages constituted
intentional assault and negligent breach of a duty of care that
Facebook allegedly owed to Klayman. Specifically, Klayman
alleged that the Intifada pages “amount[ed] to a threat of the
use of force against non-Muslims, and particularly Jews,”
causing him “reasonable apprehension of severe bodily harm
and/ or death.” Compl. ¶¶ 15-16. With respect to negligence,
Mr. Klayman alleged that, “[a]s a subscriber to Facebook and
as a member of the public, Defendants owed Plaintiff a duty
of care, which they violated and breached by allowing and
furthering the death threats by the Third Palestinian Intifada,
and related and similar sites.” Id. ¶ 19.
Klayman sought an injunction to prevent Facebook from
allowing the Intifada page and other similar pages on its
website, as well as more than one billion dollars in
compensatory and punitive damages. Compl., Prayer for
Relief.
5
Facebook removed the case to the United States District
Court for the District of Columbia, and then moved to dismiss
the case or, in the alternative, to have it transferred to the
Northern District of California. The district court granted the
motion to dismiss, FED. R. CIV. P. 12(b)(6), holding that the
Communications Decency Act foreclosed tort liability
predicated on Facebook’s decisions to allow or to remove
content from its website.
II
The court below had diversity jurisdiction under 28
U.S.C. § 1332; this court has jurisdiction over the district
court’s final judgment of dismissal under 28 U.S.C. § 1291.
We review de novo a motion to dismiss for failure to state a
claim, accepting as true the factual allegations stated in the
complaint and drawing all inferences in favor of the
nonmoving party. See, e.g., Autor v. Pritzker, 740 F.3d 176,
179 (D.C. Cir. 2014).
Preemption under the Communications Decency Act is
an affirmative defense, but it can still support a motion to
dismiss if the statute’s barrier to suit is evident from the face
of the complaint. See Jones v. Bock, 549 U.S. 199, 215
(2007); Jones v. Horne, 634 F.3d 588, 600 (D.C. Cir. 2011).
Normally we afford a liberal reading to a complaint filed by a
pro se plaintiff. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94
(2007); Rhodes v. United States, 518 F. Supp. 2d 285, 287
(D.D.C. 2007). This Court has not yet decided, however,
whether that rule applies when the pro se plaintiff is a
practicing lawyer like Klayman. See, e.g., Richards v. Duke
Univ., 480 F. Supp. 2d. 222, 234 (D.D.C. 2007). We need not
resolve that question here because, even under a generous
6
reading of the complaint, the Communications Decency Act
forbids this suit.
III
The Communications Decency Act mandates dismissal if
(i) Facebook is a “provider or user of an interactive computer
service,” (ii) the information for which Klayman seeks to hold
Facebook liable was “information provided by another
information content provider,” and (iii) the complaint seeks to
hold Facebook liable as the “publisher or speaker” of that
information. See 47 U.S.C. § 230(c)(1). We hold that, on the
face of this complaint, all three prongs of that test are
satisfied.
First, Facebook qualifies as an interactive computer
service because it is a service that provides information to
“multiple users” by giving them “computer access * * * to a
computer server,” 47 U.S.C. § 230(f)(2), namely the servers
that host its social networking website. When Facebook users
like Klayman browse the site and review the pages of other
users, see Compl. ¶ 7, they do so by gaining access to
information stored on Facebook’s servers.
Mark Zuckerberg, too, qualifies for protection because he
is a “provider” of Facebook’s interactive computer service, 47
U.S.C. § 230(c)(1), and Klayman’s complaint seeks to hold
him accountable for his role in making that service available,
Compl. ¶ 12.
Klayman does not seriously dispute that Facebook meets
the statutory definition of an interactive computer service, or
that Zuckerberg, as a matter of statutory text, provides such a
service. He argues, instead, that Facebook should not qualify
7
because it “can control the contents posted on [its] website.”
Appellant’s Br. 21. The short answer is that Congress did not
write that additional limitation into the Act, and it is this
court’s obligation to enforce statutes as Congress wrote them.
See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461-462
(2002) (“[C]ourts must presume that a legislature says in a
statute what it means and means in a statute what it says
there.”).
Worse still, Klayman’s reading would put Section 230 at
war with itself. Section 230(c)(2) prohibits holding providers
of interactive computer services liable for “any action
voluntarily taken * * * to restrict access to” content that is
“obscene, lewd, lascivious, filthy, excessively violent,
harassing, or otherwise objectionable.” 47 U.S.C.
§ 230(c)(2)(A). It would make nonsense of the statute to say
that interactive computer services must lack the capacity to
police content when the Act expressly provides them with
immunity for doing just that.
Second, the complaint acknowledges that the objected-to
information on the Third Intifada pages was provided by third
party users, not Facebook itself. The complaint charges the
defendants only with “allowing” the pages to exist and
“furthering” them by not “remov[ing] these postings.”
Compl. ¶ 19; see also, e.g., id. ¶ 4 (Facebook has been “used
[as] a vehicle for bad purposes” in this case); id. ¶ 7(Facebook “refused” to “take down the page and similar and
related pages”).
Indeed, the complaint nowhere alleges or even suggests
that Facebook provided, created, or developed any portion of
the content that Klayman alleges harmed him. Instead,
liability in this complaint rests on “information provided by
8
another information content provider,” within the meaning of
Section 230(c)(1). This case thus presents no occasion to
address the outer bounds of preemption under the Act; it is
enough here to hold 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. Compare, e.g., Fair Housing Council of San
Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157,
1166 (9th Cir. 2008) (en banc) (housing website that required
users to disclose their sex, family status, and sexual
orientation, as well as those of their desired roommate, in
violation of federal housing law, not entitled to
Communications Decency Act protection), with Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250,
257 (4th Cir. 2009) (website that did not “contribute[] to the
allegedly fraudulent nature of the comments at issue”
protected by the Communications Decency Act).
Klayman alleges that Facebook collects data on its users
and their activities, which it employs to make its advertising
more profitable. Appellant’s Br. 26. Even if true, that would
be irrelevant to Klayman’s theories of liability. Facebook
could only collect such data about the Intifada pages after
some third party had created the pages and their content.
Third, Klayman’s complaint seeks, for liability purposes,
to treat the defendants as “publisher[s]” of the offending
content. 47 U.S.C. § 230(c)(1). Although the statute does not
define “publisher,” its ordinary meaning is “one that makes
public,” and “the reproducer of a work intended for public
consumption.” WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 1837 (1981); cf. also RESTATEMENT (SECOND)
OF TORTS § 577 (1977) (“Publication of defamatory matter”
means both the communication of, and the failure to remove,
9
the relevant content.). Indeed, the very essence of publishing
is making the decision whether to print or retract a given
piece of content—the very actions for which Klayman seeks
to hold Facebook liable. See Compl. ¶¶ 17-20. Specifically,
the assault count of the complaint turns on Facebook’s
allowing the Third Intifada pages to exist on its website in the
first place. Compl. ¶ 17. And the negligence claim relies on
the timing of Facebook’s removal of the pages. Compl. ¶ 19.
Other circuits agree, holding that similar conduct falls
under Section 230’s aegis. See, e.g., Zeran v. America
Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (the
Communications Decency Act protects against liability for
the “exercise of a publisher’s traditional editorial functions—
such as deciding whether to publish, withdraw, postpone, or
alter content”); Green v. America Online, 318 F.3d 465, 471
(3d Cir. 2003) (same); Universal Communications Systems,
Inc. v. Lycos, Inc., 478 F.3d 413, 422 (1st Cir. 2007) (same);
Doe v. MySpace, Inc., 528 F.3d 413, 420 (5th Cir. 2008) (no
liability under the Act for “decisions relating to the
monitoring, screening, and deletion of content” by an
interactive computer service provider) (quoting Green, 318
F.3d at 471); Roommates.com, 521 F.3d at 1170-1171(“[A]ny 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.”)*
*
Because the conduct for which Klayman seeks to hold Facebook
liable falls within the heartland meaning of “publisher,” this case
presents no occasion to define when other types of publishing
activities might shade into creating or developing content.
10
Klayman objects that his claims “do not derive from
Appellees’ status or conduct as a publisher or speaker but are
based on Appellees’ breach of its duties arising from the
special relationship between the parties as a result of their
contractual relationship and contractual obligations.”
Appellant’s Br. 23. In particular, he points to a section of
Facebook’s Statement of Rights and Responsibilities, which
says: “We do our best to keep Facebook safe * * *.” Id. at
24.
That argument does not work. To begin with, Klayman
omits the end of that sentence, which reads “but we cannot
guarantee it.” J.A. 23. Klayman also overlooks the
Statement’s express warning that “FACEBOOK IS NOT
RESPONSIBLE FOR THE ACTIONS, CONTENT,
INFORMATION, OR DATA OF THIRD PARTIES.” J.A.
27. The plain text of the Statement thus disavows the legal
relationship that Klayman asserts.
Moreover, to the extent that Klayman means by this
argument to state a contractual basis for liability, no breach of
contract claim appears anywhere in the complaint and is
accordingly forfeited, as Klayman acknowledges. Appellant’s
Br. 23. And to the extent that Klayman means, instead, that
any such statement allocating rights and responsibilities
between interactive computer services and their users by itself
gives rise to a heightened state-law duty of care in publishing,
that argument fails. State law cannot predicate liability for
publishing decisions on the mere existence of the very
relationship that Congress immunized from suit. In other
words, simply invoking the label “special relationship” cannot
transform an admittedly waived contract claim into a non-
preempted tort action.
11
IV
For those reasons, we affirm the district court’s judgment
of dismissal.
So ordered.