Re: 10/11/01 - [Donato v. Moldow] PublicCitizen.org: Donato v. Moldow amicus brief in support of unrepresented defendants (Part 2 of 2)
Even more important are the differences between the kinds of speech and the kinds of parties that were at stake in Dendrite and in this case. In Dendrite, the messages were addressed to the private operations of a software company, discussing whether its executives were doing a good job for the shareholders and whether employees were being treated fairly; and the plaintiff was a private company. In this case, however, the messages are addressed to the performance in office of public officials, which is core political speech for which First Amendment protections are at their apogee. Even more so than private companies, public officials must expect harsh criticism, and cannot obtain damages for such criticism except ion the most egregious cases of deliberate falsifucation. See New York Times v. Sullivan, 364 U.S. 254 (1964). The "harassment" cause of action is even further afield if public officials can sue whenever citizens write angry words that hurt their feelings, not spoken to their faces as in a fighting words case but simply posted on a public bulletin board, requiring those citizens to pay a lawyer to represent them against the prospect of a large damages award, then our democracy will be in grave danger. Moreover, the plaintiffs are public officials who enjoy the power to impose significant sanctions on citizens with whom they are at odds. These powers range from the ability to reject zoning changes, to the possible withholding of city services, and even to the exercise of the police power. Cf. NAACP v. Alabama, 357 U.S. 449 (1958). The Court need not decide at this juncture the truth or falsity of defendant Moldow's counterclaim allegations, that he was summoned to the police station to answer questions in retaliation for his maintenance of the web site, in order to appreciate the chilling effect that compulsory identification of the anonymous critics of public officials can have on the willingness of citizens to speak in the future.(1)
But even if the facts of Dendrite were not thus distinguishable, we believe that Judge MacKenzie was wrong to refuse to apply the full protection of the Dendrite standards to the protection of absent Does. This duty flows from a Court's obligation to issue the narrowest possible order that minimizes the impact on First Amendment rights, as required by the Supreme Court's decision in the Princess Anne case. Nor is there anything in the Appellate Division's decision in Dendrite that requires the defendant to enter a special appearance to contest the subpoena application before the plaintiff must make the showings required by that Court's standard. Indeed, the opinion strongly implies that the showings are required of all plaintiffs, regardless of whether the defendants appear. The test is phrased in terms of what the plaintiff must do and what the Court must require, and there is no mention of the consideration of any information from the defendant until the last prong of the test, requiring the Court to consider the defendant's equities. Until the plaintiff makes the required showings of detailed allegations and evidence setting forth a prima facie case, there is really nothing to which the defendant can respond. Although the Dendrite opinion affirmed Judge MacKenzie's decision in favor of Doe No. 3, there is no question but that the Appellate Division was expanding the protections afforded to defendants by Judge MacKenzie, because the test announced by the trial judge did not provide for the consideration of any evidence in support of the plaintiff. Accordingly, the proper reading of the Dendrite opinion is that all defendants, including those who have not yet appeared, are entitled to the protections afforded by the requirement that a plaintiff make several discrete showings before it is entitled to a court order compelling the identification of anonymous Internet speakers.
A comparable principle can be found by analogy in the procedures that courts are required to follow when designating sex offenders under Megan's Law and issuing notifications to schools and community organizations. In re Registrant R.F., 317 N. J. Super. 379, 389, 722 A.2d 538, 543-544 (App. Div. 1998). Citing the New Jersey Supreme Court's December 9, 1997 order concerning the procedures to be followed in Megan's Law cases, the Court made clear that the requirement of findings based on the standard of clear and convincing evidence applies even when the registrant does not appear to contest the notification. Such consideration is needed to avoid unnecessary impingement on the offender's privacy and freedom of association. Surely, if such scruples are needed to protect former sex offenders against needless notification of their identity, at least as much protection should be afforded to internet speakers against whom there has never been a finding of impropriety, and against whom there has been nothing but an allegation that their speech violates their civil obligations to the targets of their criticism.
In summary, then, it is our contention that the Dendrite protections should be afforded to the speakers who are being sued in this case before the internet service provider VantageNet is ordered to provide identifying information about them, whether or not they are represented by counsel in this subpoena enforcement proceeding. Obviously, it will be advantageous for a given defendant to be represented. After all, as the Supreme Court noted in Princess Anne, only if a defendant participates in the process leading to the order can his attorney help narrow the order's impact on his First Amendment rights, such as by pointing to specific flaws in the arguments and proofs presented by the plaintiffs in compliance with Dendrite. Indeed, in Dendrite the represented Does were able to present their own evidence to undercut the contention that their posts has caused damages, and to point to reasons to believe that the statements over which they had been sued were true (and hence not actionable for defamation). However, the minimal protection of a sua sponte consideration of the rights of the absent speakers would best comport with existing standards under both state and federal law.
C. Plaintiffs Cannot Avoid the Immunity from Suit That Congress Has Provided for the Sponsors of Internet Message Boards Without Specific Allegations That the Sponsor Personally Participated in the Writing of Identified Actionable Messages.
In addition to suing the individual posters who signed certain messages with pseudonyms, the plaintiffs have sued Steven Moldow, the webmaster of the Eye on Emerson site and the sponsor of the message board on which the supposedly actionable messages have been posted. As we now explain, however, this aspect of the suit flies in the face of the absolute immunity against suit that Congress has provided to message board hosts such as Moldow, and the plaintiffs' apparent efforts to plead around the immunity statute are woefully inadequate.
Thus, the Communications Decency Act ("CDA"), 47 U.S.C. § 230(c)(1), provides that "[n]o provider or user of an interactive computer service shall be treated as a publisher or speaker of any information provided by another information content provider." Every court to consider this issue has ruled that the CDA creates a federal immunity against suit under any law, federal or state, that might impose liability on an internet provider for content supplied to a web site by a different person. Ben Ezra, Weinstein & Co. v. America Online, 206 F.3d 980 (10th Cir. 2000); Zeran v. America Online, 129 F.3d 327, 330-331 (4th Cir. 1997); Lockheed Martin Corp. v. NSI, 985 F. Supp. 949, 962 n.7 (C.D. Cal. 1997), aff'd, 194 F.3d 980 (9th Cir. 1999); Marczeski v. Law, 122 F. Supp.2d 315, 327 (D. Conn. 2000); Doe v. Franco Publications, 2000 WL 816779 *4-5 (N.D. Ill.); Blumenthal v. Drudge, 982 F. Supp. 44, 49-53 (D.D.C. 1998); Kathleen R. v. City of Livermore,104 Cal. Rptr.2d 772 (Cal. App 2001); Barrett v. Clark, 2001 WL 881259, *9 (Cal. Super.). Indeed, the statute not only protects covered defendants from being held liable, but also expressly provides that no such "cause of action may be brought" against them. 47 U.S.C. § 230(c)(3).
The legislative history makes clear that Congress provided this immunity because it was concerned about the impact of federal or state regulation on the "vibrant and competitive free market that presently exists for the Internet." Section 230(b)(2). As the court explained in Zeran, Congress was worried about the chilling effect that even the possibility of tort liability for the millions of postings that are disseminated through their services could have on interactive service providers, because they could not possibly screen every message for every potential problem that it might present. "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." 129 F.3d at 331. Only by protecting service providers from such suits could Congress avoid this chilling effect.
It is remains unclear how the plaintiffs hope to evade the Section 230 immunity. Perhaps they will argue, as some plaintiffs have, that the immunity extends only to actual Internet Service Providers ("ISP") such as America Online and Prodigy, and does not reach persons who organize web sites that include message boards. Most courts that have considered this question have decided that the statute covers both, and in our view these courts are correct, for several reasons. First, the definition of "interactive computer service" is not limited to ISP's, but extends to any person who creates a web site that includes a facility for multiple users to communicate with each other by posting information to the web site server, directly or indirectly:
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).
The words "service or system that provides access to the Internet" may well be limited to ISP's, but the definition only "includes" such organizations within the larger category of persons who "provide or enable access by multiple users to a computer server," which is precisely what the host of a web site does.
Second, although many of the leading cases on the subject of section 230 immunity had been brought against ISP's, they were brought against ISP's that provided specific informational web sites in addition to providing access to the Internet itself, and the claims related more to the web sites than to the basic Internet access. In Zeran v. America Online, for example, the actionable content had been posted on an interactive bulletin board sponsored by AOL, on which any AOL member could both read existing messages or post new messages. And in Blumenthal v. Drudge and Ben Ezra v. American Online, the plaintiffs claimed that he had been libeled by the content of news sites provided under contract with AOL, the former suing over content was prepared by the notorious muckraker Matt Drudge, and the second suing over content prepared by certain stock price reporting services. None of these cases involved a defendant that was sued simply for acting in the capacity as an ISP, and the courts, in analyzing these cases, did not rest with the fact that AOL is an ISP, but recognized that AOL was acting as a publisher of content provided by others. See also Doe v. Franco Publications, 2000 WL 816779 *4-5 (N.D. Ill.) (court holds that plaintiff's characterization of defendants as web hosts does not require denial of section 230 immunity). The major difference between this case and the AOL cases is that Moldow is not an ISP, but his role is that of the creator of a web site whose function is the same as the AOL function that made it a defendant in all of these cases. Because AOL's status as an ISP was not the basis for either the suits against it, or for the judicial recognition of its immunity under section 230, this difference should not deprive Moldow of the protection of the statute.
Moreover, in several recent cases the only reported cases of which we are aware addressing this issue courts have expressly extended the protection of section 230 to individuals who are not themselves ISP's, when they were sued for messages that other persons created. Thus, in Marczeski v. Law, supra, the defendant was the organizer of a chat room for the discussion of a dispute about the plaintiff, and an anonymous poster accused the plaintiff of threatening her children; once the Court was satisfied that the defendant had not posted those comments, it dismissed the claim against her. Similarly, in Schneider v. Amazon.com, 31 P.3d 37 (Wash. App. 2001), the internet retailer was held immune from suit based on an allegedly defamatory statement contained in a book review that an Amazon customer posted on its web site: "We can discern no difference between web site operators and ISPs in the degree to which immunity will encourage editorial decisions that will reduce the volume of offensive material on the Internet." See also Stoner v. eBay, Inc., 2000 WL 1705637, at *1 (Cal. Super. 2000) (host of auction web site immune under section 230 from suit over content of materials sold on its site). And in Barrett v. Clark, supra, defendant Rosenthal reposted to a newsgroup in which she was a participant a report prepared by defendant Bolen; the Court held that section 230 immunized defendant Rosenthal from liability because she had not created the underlying report. So, here, Moldow cannot be held legally responsible for the content created by the various anonymous posters and posted by other persons to the web site that he created.(2)
Extending protection to persons in Moldow's position also comports with the underlying policy of the statute. Section 230 is intended to encourage the creation of opportunities for members of the public to receive information in which they are interested and to participate in discussions about topics of interest. Indeed, as the Supreme Court observed in Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the Internet is a tremendously democratizing force, because it enables individuals who otherwise might have little access to an audience to gain that degree of respect that his or her ideas deserve. It is also a decentralizing force, freeing people from control by large media companies and creating the opportunity for groups of persons who are interested in particular topics to create forums for themselves, and allowing audiences for such forums to grow and shrink easily, with such attention being paid to those forums whose rules and standards meet with their approval and produce discussion whose reliability and analytic worth satisfy them. Moldow's forum, devoted exclusively to topics relating to a single local government and inviting residents of the town to participate in an on-line discussion, represents a terrific gift to the community. If a citizen like Moldow, who has created a democratic forum for his fellow citizens without any compensation, has to face the prospect of ruinous litigation from any person who is criticized in that forum, on the theory that he is liable for anything that any poster may say on his message board, then no rational citizen will dare to follow him. See Rocci v. Ecole Secondaire Macdonald-Cartier, 165 N.J. 149, 158, 755 A.2d 583 (2000) (recognizing the chilling effect of "long and costly litigation in defamation cases", and the need for early termination where possible).
To be sure, the plaintiffs' criticism, that some speakers might be more responsible if participation were not anonymous, or if all participants had to register and thus make themselves more readily subject to quick identification, is a fair one it is a choice that a web master makes. If there were competition for audience share among various web sites devoted to Emerson, this is one way in which different web masters might promote their sites. But section 230 leaves it to the free market of ideas to determine which site is most worthwhile, by protecting the creators of any such web sites form liability for the content placed by others on their web sites.
The complaint offers one other hint about how the plaintiffs hope to hold Moldow liable, in that they allege that Moldow "has actively participated in selective editing, deletion and re-writing of anonymously posted messages" on the message board, ¶ 11, that Moldow "ban[s] users whose messages he finds "disruptive" and "is quick to remove any negative message about himself or people he associates with," ¶ 26, and that Moldow has "actively participated in the editing of messages," and "by way of example and not limitation," he deleted certain accusations that were particularly nasty and edited one message to remove profanity, "thus instructing participants in how to convey offensive language without encountering censorship." ¶ 27. Presumably the plaintiffs intend to argue that, by these methods, Moldow incurred liability and went beyond the protection of section 230.
In most respects, this argument would be erroneous. In addition to providing a blanket immunity for the providers of interactive computer services, section 230(c)(1), the statute has a Good Samaritan provision that prevents a provider or even a user of an interactive computer service from being held liable for any action undertaken to limit the availability of information that is lewd or harassing or in any way objectionable. Section 230(c)(2)(A). The cases have uniformly held that this provision also protects against the imposition of liability on the theory that, because an internet host has eliminated some objectionable material, they must be deemed responsible for objectionable material that remains. E.g., Blumenthal, supra, 992 F. Supp at 52; Ben Ezra, supra, 206 F.3d at 985-86. Thus, the editing of statements to remove profanity, and the removal of some messages but not others, is not a proper basis for the imposition of liability in this case.
There is one aspect of the complaint, however, that cannot be dismissed on this basis. The complaint contains some general allegations that Moldow not only removed and edited but also "actively posted" messages, ¶ 11, and that he "published" various statements knowing them to be false. ¶ 12. Moreover, although as discussed above the specific allegations about messages that Moldow edited (to remove profanity and delete offensive statements) reveal conduct that is plainly protected by section 230, the complaint makes general allegations that Moldow "participates in the editing"of messages; it is possible for an editor to be so closely involved in the creation of content that he becomes liable as an information provider.
However, New Jersey law also requires a defamation plaintiff to make very allegations that are sufficiently specific to identify the defamatory words, their utterer, and the facts and circumstances of their publication; general allegations that a defendant "published defamatory matter" are simply not sufficient to withstand a motion to dismiss. Printing Mart-Morristown v. Sharp Electronics Corp., 116 NJ 739, 767-768, 563 A.2d 31 (1989); Voorhees v. Preferred Mut. Ins. Co., 588 A.2d 417, 420 (N. J. Super. 1991); Zoneraich v. Overlook Hospital, 212 N. J. Super. 83, 101, 514 A.2d 53, 63 (N.J. Super. App. Div. 1986). Indeed, Zoneraich was specifically cited by the Appellate Division in Dendrite as stating the proper motion to dismiss standard for defamation cases. 342 N.J. Super. 134 at 155, 775 A.2d at 770.
Plaintiffs' conclusory allegations about Moldow's "publishing" defamatory statements on his message board, without specifying what conduct amounted to publishing, and their general allegations about his "editing" some of the posts, without specifying what content he added if any, do not sufficiently allege the "circumstances" of publication to state a claim for defamation under New Jersey law. Because the CDA immunizes a large fraction of the activities that have traditionally been treated as "publishing" under libel law, Zeran v. America OnLine, 129 F.3d 327, 331-334 (4th Cir. 1997), that conclusory allegation is no longer sufficient to state a libel claim. Neither do these parts of the complaint specifically identify the defamatory words that Moldow is supposed to have "published" or "edited". Accordingly, these aspects of the complaint should be dismissed as well, although in these respects it may be appropriate for the Court to grant the plaintiffs leave to replead.
CONCLUSION
The Court should decline to enforce the subpoena to obtain identifying information about any defendant or other poster, regardless of whether that person is represented by counsel on this motion to quash, unless the plaintiffs have met the standards of Dendrite with respect to posts by that person. Moreover, the Court should dismiss the complaint against defendant Moldow.
Respectfully submitted,
_____________________________
Paul Alan Levy
David C. Vladeck
Public Citizen Litigation Group
1600 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
____________________________
J.C. Salyer
American Civil Liberties Union
of New Jersey Foundation
35 Halsey Street, Suite 4B
Newark, New Jersey 07102
(973) 642-2086
Attorneys for amici curiae
October 10, 2001
1. The chilling effect of having to retain a lawyer and go to court simply to defend one's comments and remain anonymous has been mitigated somewhat in this case by the generous offer of Richard Ravin, Esquire to represent anonymous posters pro bono. But some of the posters may have had conflicts that prevented Mr. Ravin from representing them, and although his offer was posted on the Eye on Emerson web site, it is also possible that some posters never learned of the offer of representation; indeed, it is possible that some defendants are not even aware that they have been named if they have not revisited the site since this suit was filed. Moreover, we are arguing for a prophylactic rule requiring court scrutiny in all cases brought by public officials, because we cannot be certain that in every case a lawyer as generous as Mr. Ravin will be available.
2. In an unreported case, Batzel v. Smith, CV 00-9590 SVW (C.D. Cal. June 5, 2001), at 16-18, appeal pending, No. 01-56380 (9th Cir.), a judge summarily rejected a Section 230 brought against a musuem security director who had placed on his internet mailing list addressed to the issue of stolen art an accusation that the plaintiff had bragged about having a large number of pictures stolen by her Nazi ancestors, opining that the statute only protects "true internet service providers." This court did not analyze the language of the statute, or cite to any precedent for this distinction, and indeed it is not clear that this part of the opinion was necessary to the decision. In any event, we believe that this decision is erroneous.
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