The opinion
UNITED STATES DISTRICT COURT USDC SDNY
SOUTHERN DISTRICT OF NEW YORK DOCUMENT
sss sre ssrsrssr ccccse Hf RLECTRONICALLY FILED
NATIONAL COALITION ON BLACK CIVIC : DOC #:
PARTICIPATION, et al., DATE FILED. == □□
Plaintiffs, :
: 20 Civ. 8668 (VM)
- against - :
JACOB WOHL, et al., : DECISION AND ORDER
Defendants. :
------- A XxX
VICTOR MARRERO, United States District Judge.
Plaintiffs National Coalition on Black Civic
Participation (“NCBCP”) and Mary Winter, Gene Steinberg,
Nancy Hart, Sarah Wolff, Karen Slaven, Kate Kennedy, Eda
Daniel, and Andrea Sferes (collectively, the “Individual
Plaintiffs,” and with NCBCP, “Plaintiffs”) filed this action
against defendants Jacob Wohl (“Wohl”), Jack Burkman
(“Burkman”), J.M. Burkman & Associates, LLC (“J.M. Burkman &
Associates”), Project 1599, and John and Jane Does 1 through
10 (collectively, “Defendants”). (See Complaint, Dkt. No.
11.) Plaintiffs allege that Defendants sent robocalls
containing false information intended to prevent recipients
from voting by mail through threats and intimidation in
violation of Section 11(b) of the Voting Rights Act of 1965
(“VRA”), 52 U.S.C. § 10307(b), and Section 2 of the Ku Klux
Klan Act of 1870 (“KKK Act”), 42 U.S.C. § 1985(3).
On May 19, 2021, Letitia James, Attorney General of the
State of New York (“NY AG”) on behalf of the People of the
State of New York, filed a Complaint in Intervention against
Defendants as well as Robert Mahanian (“Mahanian”) and
Message Communications, Inc. (“Message,” and with Mahanian,
the “Message Defendants”). (See “Complaint in Intervention,”
Dkt. No. 102.) The NY AG alleges the following: (1) violation
of Section 11(b) of the VRA by Defendants and the Message
Defendants; (2) violation of Section 2 of the KKK Act by
Defendants and the Message Defendants; (3) violation of
Section 131(b) of the Civil Rights Act of 1957 by Defendants;
(4) violations of Sections 40-c and 40-d of the New York Civil
Rights Law by Defendants and the Message Defendants; (5)
violation of Section 9 of the New York Civil Rights Law by
Defendants; (6) violation of Section 63(12) of the New York
Executive Law by Defendants and the Message Defendants. (Id.)
Now before the Court is the Message Defendants’ letter
motion requesting a premotion conference and seeking leave to
file a motion to dismiss the Complaint. The Court construes
the letter as a motion to dismiss1 pursuant to Federal Rule
1 See Kapitalforeningen Lægernes Invest. v. United Techs. Corp., 779 F.
App’x 69, 70 (2d Cir. 2019) (affirming the district court ruling deeming
an exchange of letters as a motion to dismiss).
of Civil Procedure 12(b)(6) (the “Motion,” Dkt. No. 126). For
the reasons discussed below, the Motion is DENIED.
I. BACKGROUND
A. FACTS AND PROCEDURAL BACKGROUND2
This Order assumes familiarity with the Court’s prior
Orders granting Plaintiffs’ motion for a temporary
restraining order, Nat’l Coal. on Black Civic Participation
v. Wohl, 498 F. Supp. 3d 457 (S.D.N.Y. 2020); denying
Defendants’ motion to dismiss, Nat’l Coal. on Black Civic
Participation v. Wohl, 512 F. Supp. 3d 500 (S.D.N.Y. 2021);
and granting the NY AG’s motion to intervene, “May 19 Order,”
Dkt. No. 101, including the factual recitation contained
therein.
In brief, in summer 2020, Wohl and Burkman created a
robocall recording to discourage voters from voting by mail
during the COVID-19 pandemic in which voting in person raised
a serious health risk. The recording conveyed the following
message:
Hi, this is Tamika Taylor from Project 1599, the civil
rights organization founded by Jack Burkman and Jacob
2 The factual background below, except as otherwise noted, derives from
the Complaint in Intervention and the facts pleaded therein, which the
Court accepts as true for the purposes of ruling on a motion to
dismiss. See Spool v. World Child Int’l Adoption Agency, 520 F.3d 178,
180 (2d Cir. 2008) (citing GICC Capital Corp. v. Tech. Fin. Grp., Inc.,
67 F.3d 463, 465 (2d Cir. 1995)); see also Chambers v. Time Warner, Inc.,
282 F.3d 147, 152 (2d Cir. 2002). Except when specifically quoted, no
further citation will be made to the Complaint in Intervention or the
documents referred to therein.
Wohl. Mail-in voting sounds great, but did you know that
if you vote by mail, your personal information will be
part of a public database that will be used by police
departments to track down old warrants and be used by
credit card companies to collect outstanding debts? The
CDC is even pushing to use records for mail-in voting to
track people for mandatory vaccines. Don’t be finessed
into giving your private information to the man, stay
safe and beware of vote by mail.
Complaint in Intervention ¶ 54.
The NY AG alleges that this robocall message falsely
states that voters who vote by mail would face severe
consequences including: (1) the claim that police will use
vote-by-mail information to track persons with outstanding
warrants; (2) the assertion that vote-by-mail information
will be used by debt collectors; and (3) the claim that the
Centers for Disease Control and Prevention (“CDC”) is seeking
access to vote-by-mail information to conduct mandatory
vaccinations. The NY AG states that none of these claims is
true.
The NY AG further alleges that the robocalls used “racist
stereotypes intended to intimidate and otherwise discourage
Black voters from using absentee or mail-in ballots.” Id. ¶
55. The NY AG states that the purported speaker of the
robocall message, Tamika Taylor, could be confused by call
recipients with the mother of Breonna Taylor -- whose actual
name is Tamika Palmer. The NY AG also contends that invocation
of outstanding warrants “could be perceived as intimidating
for Black voters who may have legitimate fears of interacting
with law enforcement due to a long history of systemic racism
in the criminal justice system.” Id. ¶ 57.
Wohl and Burkman intended to target Black voters with
the robocalls. Wohl wrote in an email containing the audio
file of the message that “[w]e should send it to black
neighborhoods,” and after the calls were placed, Burkman
wrote to Wohl, “[I] love these robo calls [sic] . . . getting
angry black call backs . . . win or lose . . . the black robo
was a great jw idea.” Id. ¶ 6. The NY AG further alleges that
it was Wohl’s and Burkman’s intent to interfere with the
November 3, 2020 election by referencing a February 2019
article in USA Today in which Wohl told reporters that he was
“already plotting ways to discredit Democrats in the 2020
election with lies and other disinformation, using his large
following on social media to cause disarray similar to what
Russians did during the 2016 election.”3 In addition, in June
2019, Wohl admitted to The Washington Post that he sought
investors to fund a scheme to “use fraudulent news stories
3 See Complaint in Intervention ¶ 24 (quoting Crystal Hayes & Gus Garcia-
Roberts, This Is How Jacob Wohl Created a Sexual Harassment Accusation
Against Robert Mueller, USA Today (Feb. 26, 2019),
https://www.usatoday.com/story/news/politics/2019/02/26/robertmueller-
hoax-how-jacob-wohl-created-sexual-harassmentplot/2993799002/).
about candidates to suppress voter turnout and manipulate
political betting markets.” Id. ¶ 25.
Message is a corporation that owns, operates, and hosts
a telecommunication broadcasting platform that broadcasts
robocalls or prerecorded telephone messages for a fee.
Message is owned and operated by Mahanian. Wohl and Burkman
hired Message to send the robocall message to voters in New
York, Ohio, Michigan, Pennsylvania, and Illinois. On August
26, 2020, Message sent the robocall message to over 85,000
phone numbers nationwide, including approximately 5,500 phone
numbers in New York.
The NY AG alleges upon information and belief that “on
June 17, 2020, Burkman left a voice message for Mahanian to
discuss broadcasting a robocall that Burkman and Wohl
intended to discourage mail-in voting and suppress voter
turnout.” Id. ¶ 30. A few days later, Burkman contacted
Message about placing some robocalls. Over the next few days,
Burkman and Mahanian continued discussing the robocalls that
Burkman wanted Message to broadcast. Burkman then issued a
payment in the amount of $1,000 from a Burkman & Associates
bank account to Message for the robocall.
In August 2020, Burkman emailed Mahanian, copying Wohl,
writing, “Check to you Robert just went out in the 2 day pouch
you will have in 2-3 days then we attack.” Id. ¶ 35. A second
check in the amount of $1,000 to Message issued. On August
24, 2020, Burkman emailed Mahanian “to confirm that he
received the payment for the voter robocall campaign.” Id. ¶
37. Mahanian confirmed receipt of the check and told Burkman
that he was “all set” to begin the robocall campaign. Id. ¶
38. The NY AG alleges upon information and belief that Burkman
and Mahanian set up a call via email and then discussed the
robocalls, including the targeted neighborhoods. On August
26, 2020, Wohl emailed Burkman and Mahanian to inform them
that the audio file for the robocall message had uploaded
successfully, and Mahanian then confirmed that “yes, your
campaign is currently running and recording, uploaded about
20 minutes ago, is running. I believe you are all set.” Id.
¶ 46.
The NY AG alleges upon information and belief that
Messsage monitors its robocall campaigns but failed to take
any action to determine whether the robocall Burkman and Wohl
had uploaded constituted voter intimidation. It is further
alleged that Message maintains a database of phone numbers
that can be targeted for purposes of a robocall campaign and
that it was aware of, and directed the robocall message to,
specific communities that Wohl and Burkman had selected. The
Complaint in Intervention alleges more specifically that
Message provided active assistance in identifying target zip
codes to maximize the threatening effect of the robocalls.
The Complaint in Intervention cites to 47 U.S.C. §
227(d)(3)(A) and states that federal law requires prerecorded
voice messages state certain information, such as the
identity of the calling entity. Based on these requirements,
the NY AG alleges that Message, in ensuring that the robocall
message complied with federal requirements, knew or should
have known the content of the robocall message.
B. PROCEDURAL HISTORY
As relevant here, on May 19, 2021, the Court granted the
NY AG’s motion to intervene. (See May 19 Order.) Subsequently,
the NY AG filed the Complaint in Intervention against
Defendants and the Message Defendants, alleging the
following: (1) violation of Section 11(b) of the VRA by
Defendants and the Message Defendants; (2) violation of
Section 2 of the KKK Act by Defendants and the Message
Defendants; (3) violation of Section 131(b) of the Civil
Rights Act of 1957 by Defendants; (4) violations of Sections
40-c and 40-d of the New York Civil Rights Law by Defendants
and the Message Defendants; (5) violation of Section 9 of the
New York Civil Rights Law by Defendants; (6) violation of
Section 63(12) of the New York Executive Law by Defendants
and the Message Defendants.
On July 26, 2021, the Message Defendants filed a letter
sent to the NY AG identifying purported deficiencies with the
Complaint in Intervention’s claims against them and
requesting their dismissal. (See Motion.) On August 2, 2021,
the NY AG filed a response opposing dismissal of the claims
against the Message Defendants. (“Opposition,” Dkt. No. 127.)
On August 13, 2021, the Message Defendants filed a reply
letter in support of its Motion and requested a premotion
conference. (“Reply,” Dkt. No 132.)
On September 7, 2021, the Court ordered the Message
Defendants and NY AG to file supplemental letter briefs
addressing the Message Defendants’ argument that Section 230
of the Communications Decency Act precludes the NY AG’s claims
against them. (See Dkt. No. 134.) The Message Defendants filed
a supplemental brief on September 10, 2021 (“Message Defs.
Supp. Br.,” Dkt. No. 136), and the NY AG filed a brief on
September 13, 2021 (“NY AG Supp. Br.,” Dkt. No. 137.) The
Court also granted Plaintiffs’ request to file a letter brief
on the Section 230 issue. (See “Pls. Br.,” Dkt. No. 138-1.)
C. THE PARTIES’ ARGUMENTS
The Message Defendants argue that Message was under no
obligation under the Telephone Consumer Protection Act
(“TCPA”) to prescreen the content of the robocall message at
issue because the TCPA does not apply to Message. The Message
Defendants contend that the provision of the TCPA cited in
the Complaint in Intervention, 47 U.S.C. § 227(d)(3)(A),
governs the use of automatic telephone dialing systems
(“ATDSs”). Message is not alleged to use an ATDS as defined
by the Supreme Court in Facebook, Inc. v. Duguid, 141 S. Ct.
1163, 1167 (2021). Rather, the Message Defendants argue that
the Complaint in Intervention alleges that the recipients of
the robocalls were intentionally targeted and not called by
a random number generator, thereby undercutting any
suggestion that Message uses an ATDS.
The NY AG responds that Mahanian actively conspired with
Burkman and Wohl to target voters with a robocall designed to
stop them from voting by mail and points to allegations that
Mahanian and Burkman held multiple calls over the course of
several days discussing the content of the robocall message
and the recipient-neighborhoods to target. The NY AG argues
that the failure to allege that Message uses an ATDS is
immaterial because no cause of action is based on the TCPA,
and there are other allegations supporting a finding of
knowledge.
The Message Defendants further assert that any liability
based on the contents of Defendants’ robocall message is
barred by Section 230 of the Communications Decency Act, 47
U.S.C. § 230(c)(1). The Message Defendants claim that Message
is a provider of an interactive computer service because users
upload their own messages to Message’s server through
Message’s website. They also argue that the robocall message
at issue was clearly provided by Wohl and Burkman and that
Message did not co-create the message simply by “allow[ing]
its customers to select where to send their messages.” Message
Defs. Supp. Br. at 3.
The NY AG claims that Section 230 immunity does not apply
because robocalling is not protected by that statute and the
Message Defendants were not passive publishers. The NY AG
states that Message was not acting as an interactive computer
service when it placed the unlawful telephone calls to
landline telephones because it did not provide the call
recipients with access to a computer server. The NY AG
additionally argue that “Message ‘specifically encouraged
development of what was offensive about the conduct’ by
working with Wohl and Burkman to provide the means and methods
to target specific voters over traditional landline
telephones.” NY AG Supp. Br. at 3 (citation omitted).
In their brief, Plaintiffs argue that expanding Section
230 to apply to the offline conduct of disseminating robocalls
would jeopardize civil-rights enforcement. Plaintiffs also
claim that doing so would be inconsistent with Congress and
the Executive Branch’s attempts to curtail illicit robocalls.
II. LEGAL STANDARDS
“To survive a motion to dismiss [pursuant to Federal
Rule 12(b)(6)], a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). This standard is met “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. A court should not dismiss a complaint for
failure to state a claim if the factual allegations
sufficiently “raise a right to relief above the speculative
level.” See Twombly, 550 U.S. at 555. The task of the Court
in ruling on a motion to dismiss is to “assess the legal
feasibility of the complaint, not to assay the weight of the
evidence which might be offered in support thereof.” In re
Initial Pub. Offering Sec. Litig., 383 F. Supp. 2d 566, 574
(S.D.N.Y. 2005) (citation omitted).
III. DISCUSSION
The Message Defendants raise two primary arguments as to
why the claims against them are defective. First, the Message
Defendants argue that they were not aware of the contents of
the robocall message at issue. Second, the Message Defendants
contend that they are protected by the immunity conferred to
interactive computer service providers and users under
Section 230 of the Communications Decency Act. The Court is
not persuaded.
A. Allegations of Knowledge
The Court agrees with the Message Defendants that the
Complaint in Intervention has failed to allege that Message
uses an ATDS. The TCPA applies to “automatic telephone dialing
systems,” or ATDSs, which the Supreme Court has recently
defined as having “the capacity to use a random or sequential
number generator to either store or produce phone numbers to
be called.” Facebook, 141 S. Ct. at 1173. The NY AG does not
seem to dispute that the Complaint in Intervention fails to
allege Message uses an ATDS. Therefore, it is not apparent
from the face of the Complaint in Intervention whether the
TCPA imposes an obligation on Message to review robocall
messages’ contents.4
However, there are sufficient allegations in the
Complaint in Intervention to give rise to a reasonable
inference that the Message Defendants were aware of the
robocall message’s contents or purpose. For instance, Burkman
left a voicemail for Mahanian to “discuss broadcasting a
4 The Court passes no judgment on whether the NY AG was required to plead
that Message uses an ATDS to support the inference that it prescreens the
content of the robocall messages it disseminates. Because the Court
concludes that other allegations support an inference of knowledge here,
the Court need not address the adequacy of the NY AG’s TCPA allegations.
robocall that Burkman and Wohl intended to discourage mail-
in voting and suppress voter turnout.” Complaint in
Intervention ¶ 30. Subsequently, “Burkman discussed with
Mahanian the robocalls Burkman wanted to broadcast via
Message Communications.” Id. ¶ 32. These allegations, when
read in the light most favorable to the NY AG, give rise to
the reasonable inference that Mahanian knew of the content or
purpose of the robocalls. In addition, Burkman sent Mahanian
an email stating, “Check to you Robert just went out in the
2 day pouch you will have in 2-3 days then we attack.” Id. ¶
35. The use of “we attack” in this email between Burkman and
Mahanian reinforces the notion that Mahanian was aware of the
robocalls’ disruptive purpose and intimidating nature. These
allegations, in conjunction with the numerous other alleged
communications between Mahanian and Defendants, “raise a
right to relief above the speculative level,” see Twombly,
550 U.S. at 555, and “raise a reasonable expectation that
discovery will reveal evidence of the wrongdoing alleged,”
Whiteside v. Hover-Davis, Inc., 995 F.3d 315, 323 (2d Cir.
2021) (internal quotation marks and citation omitted).
The Message Defendants seek to undermine the
plausibility or weight of these allegations because they are
based upon information and belief. But “[t]he Twombly
plausibility standard . . . does not prevent a plaintiff from
pleading facts alleged ‘upon information and belief’ where
the facts are peculiarly within the possession and control of
the defendant, or where the belief is based on factual
information that makes the inference of culpability
plausible.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120
(2d Cir. 2010) (internal quotation marks and citations
omitted). Here, the Court is persuaded that facts regarding
the content of Burkman and Mahanian’s telephone discussions
are uniquely within their possession and control. Moreover,
as discussed above, the substance of the emails included in
the Complaint in Intervention, such as the one in which
Burkman says “we attack,” supports the assertion that Burkman
and Mahanian discussed the content or purpose of the robocall
message, as alleged upon information and belief. The Message
Defendants have provided no basis to find that the NY AG
improperly pled allegations upon information and belief.
Nor does the Court consider the allegation that “Message
Communications did not perform any due diligence or make any
effort to determine whether the robocalls provided to [them]
by Wohl and Burkman – two individuals known for spreading
conspiracy theories and other disinformation – constituted
voter intimidation” to be inconsistent with an inference of
knowledge, as the Message Defendants argue. See Complaint in
Intervention ¶ 49. Mahanian and Message may very well have
known of the contents of the robocall message yet nonetheless
failed to take steps to verify the accuracy of the contents
or whether the message would constitute unlawful voter
intimidation. In other words, the message’s contents and
their legal effect are distinct concepts; knowledge of one
does not require knowledge of the other. For this reason, the
allegation that Mahanian and Message failed to conduct any
due diligence does not undermine the allegations that they
knew what the robocall message contained or its intended
purpose.
The many allegations that Mahanian communicated with
Burkman and Wohl about the robocall message, as well as the
email exchanges between the two, are sufficient to make
plausible Mahanian’s knowledge of the robocall message or its
purpose. Accordingly, the NY AG’s allegations against the
Message Defendants are adequate.
B. Section 230 of the Communications Decency Act
The Court is further unpersuaded that Section 230 of the
Communications Decency Act precludes the Message Defendants’
potential liability. There are three elements of immunity
under Section 230(c)(1). First, a defendant claiming immunity
must be a “provider or user of an interactive computer
service.” 47 U.S.C. § 230(c)(1). Second, the plaintiff’s
claim must treat the defendant as a “publisher or speaker.”
Id. Third, the plaintiff’s claim must be based on information
“provided by another information content provider.” Id.; see
also Force v. Facebook, Inc., 934 F.3d 53, 64 (2d Cir. 2019).
“[D]ismissal is only appropriate pursuant to § 230 on a
motion to dismiss ‘if the statute’s barrier to suit is evident
from the face of the complaint.’” Elliott v. Donegan, 469 F.
Supp. 3d 40, 55-56 (E.D.N.Y. 2020) (quoting Ricci v. Teamsters
Union Local 456, 781 F.3d 25, 28 (2d Cir. 2015)). A plaintiff
is not required to anticipate affirmative defenses when
formulating a complaint, and therefore, the absence of
allegations cannot justify dismissal under Section 230. See
id. (citing cases).
Whether Section 230 immunity precludes liability for
violations of civil-rights statutes against a
telecommunications broadcast platform like Message that
disseminates robocalls containing prerecorded messages
uploaded to a website appears to be an issue of first
impression.5 But the Court is not persuaded that in the
5 This Court is only aware of one other court that has thus far addressed
whether Section 230 precludes liability “for the activities of third-
party telemarketers who make auto-dialed calls using their services.”
Cunningham v. Montes, 378 F. Supp. 3d 741, 750 (W.D. Wis. 2019). But
Cunningham addresses a separate question related to Section 230. The court
there held that Section 230 immunity did not shield a provider of
telemarketing services from liability under the TCPA because “the harm
addressed by the TCPA is not related to the content of the robocalls,”
but rather, the nuisance imposed by the robocalls. Id.
circumstances alleged in this case, dismissal of the NY AG’s
claims is appropriate.
As an initial matter, it is not evident from the face of
the Complaint in Intervention whether Message constitutes a
provider or user of an interactive computer service. The
statute defines an “interactive computer service,” a term
that courts typically interpret expansively, Dyroff v.
Ultimate Software Grp., 934 F.3d 1093, 1097 (9th Cir. 2019),
as “any [1] information service, system, or access software
provider that [2] provides or enables computer access by
multiple users to a computer server.” 47 U.S.C. § 230(f)(2).
An access software provider is defined, in relevant part, as
“a provider of software (including client or server
software), or enabling tools that do any one or more of the
following . . . (C) transmit, receive, display, forward,
cache, search, subset, organize, reorganize, or translate
content.” Id. § 230(f)(4). “Courts typically have held that
internet service providers, website exchange systems, online
message boards, and search engines fall within this
definition.” F.T.C. v. LeadClick Media, LLC, 838 F.3d 158,
174 (2d Cir. 2016).
It is apparent that users, such as Burkman and Wohl in
this case, can upload audio files to Message’s website, which
are then transmitted via robocalls. But it is not apparent
from this fact alone whether Message satisfies the definition
of a provider or user of an interactive computer service. As
the NY AG argues, there remain outstanding factual questions
that must be resolved before the Court can make such an
assessment. For instance, it is unclear what means Message
uses to send robocalls,6 or whether Message hosts a connection
between users’ devices and a server as required by the
statutory definition. In the absence of allegations
affirmatively demonstrating that Message is a provider or
user or an interactive computer service such that it is
entitled to immunity, dismissal at this stage is
inappropriate.7
Even assuming that Message is a provider or user of an
interactive computer service, however, the Court is persuaded
that the NY AG has sufficiently alleged that the Message
Defendants acted as more than a passive publisher or neutral
intermediary in the circumstances of this case.
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
6 The Second Circuit has expressed skepticism that traditional telephone
calling is covered by Section 230. See Force, 934 F.3d at 67 n.23 (noting
that the Circuit’s holding would not necessarily immunize an acquaintance
who brokers a connection between two authors and facilitates sharing of
their works via telephone call).
7 Because outstanding factual issues preclude a finding that Section 230
can definitively apply to the act of robocalling, the Court does not
address Plaintiffs’ policy arguments at this time.
through the Internet or any other interactive computer
service.” 47 U.S.C. § 230(f)(3). The Tenth Circuit has noted
that to “develop” means to make visible, active, or usable,
and that “a service provider is ‘responsible’ for the
development of offensive content only if it in some way
specifically encourages development of what is offensive
about the content.” F.T.C. v. Accusearch Inc., 570 F.3d 1187,
1198 (10th Cir. 2009). Thus, “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 because he did not merely act as a
neutral intermediary, but instead ‘specifically encouraged
development of what was offensive about the content.’”
LeadClick, 838 F.3d at 174 (brackets omitted) (quoting
Accusearch, 570 F.3d at 1199). Similarly, the Ninth Circuit
has held that “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.” Fair Housing Council of San Fernando Valley v.
Roommates.Com, LLC, 521 F.3d 1157, 1168 (9th Cir. 2008). The
Second Circuit has adopted these principles espoused by the
Tenth and Ninth Circuits. See, e.g., LeadClick Media, 838
F.3d at 174.
According to the Complaint in Intervention, Message did
not merely transmit the robocall message that Burkman and
Wohl uploaded. As discussed above, it is alleged that Mahanian
and Burkman discussed the content or purpose of the robocall
message. It is further alleged upon information and belief
that “Message Communications maintains a database of phone
numbers that can be targeted for purposes of a robocall
campaign and it was aware of and directed the robocall message
to specific communities selected by Wohl and Burkman.”
Complaint in Intervention ¶ 61. Most importantly, it is
alleged that “Burkman and Mahanian . . . discussed the
robocall, including the targeted neighborhoods that Burkman
and Wohl’s robocall campaign would reach,” and “Message
Communications worked with Wohl and Burkman to target
specific zip codes to maximize the threatening effects the
robocall would have on Black voters in New York and other
large metropolitan areas.” Id. ¶¶ 44, 87.
The Court’s prior decisions granting the temporary
restraining order and denying Defendants’ motion to dismiss
explain at length that the intimidating nature of the message,
which gives rise to Plaintiffs’ and the NY AG’s claims, is
based, at least in part, on the racial targeting, use of
racially charged stereotypes, and fact “that this message was
conveyed directly to individual voters by phone.” See, e.g.,
Nat’l Coal. on Black Civic Participation, 498 F. Supp. 3d at
482-85. Accordingly, the Message Defendants’ active efforts
in targeting Black neighborhoods for dissemination of the
robocall message so as to maximize its threatening effect
“contribute[] materially to the alleged illegality of the
conduct,” Roommates.com, 521 F.3d at 1168, and transform the
Message Defendants into much more than a “neutral
intermediary,” LeadClick, 838 F.3d at 174.
The Second Circuit and Ninth Circuit’s decisions in
Force v. Facebook, Inc., 934 F.3d 53 (2d Cir. 2019), and
Gonzalez v. Google LLC, 2 F.4th 871 (9th Cir. 2021), are not
to the contrary. In Force, the Second Circuit addressed claims
against social-media company Facebook brought by victims,
estates, and family members of victims of terrorist attacks
in Israel who alleged that Facebook provided material support
to Hamas in violation of the Anti-Terrorism Act. 934 F.3d at
57. Facebook uses algorithms based on a variety of inputs,
such as users’ prior behavior on Facebook, users’ behavioral
and demographic data, users’ common membership in Facebook’s
online groups, or users’ mutual friend connections, to
determine what content to display to users on their newsfeed
webpage, suggest friend connections to users, and display
third-party groups, products, services, or events that may
interest users. Id. at 58. Facebook uses advertising
algorithms as well to “allow advertisers on Facebook to target
specific ads to its users who are likely to be most interested
in them.” Id. at 58-59. In relevant part, the plaintiffs
alleged that Facebook’s algorithms directed Hamas’s
terrorist-related content to the personalized newsfeeds of
the individuals who harmed the plaintiffs. Id. at 59.
A divided panel of the Second Circuit held that the
plaintiffs’ claims were barred under Section 230. As to
Facebook’s use of algorithms, the Force majority rejected the
plaintiffs’ argument that Facebook does not act as a publisher
when using algorithms to suggest content to users. Id. at 65-
66. The majority explained that “arranging and distributing
third-party information inherently forms ‘connections’ and
‘matches’ among speakers, content, and viewers of content,
whether in interactive internet forums or in more traditional
media,” and forms “an essential result of publishing.” Id. at
66. The majority also rejected the argument that Facebook’s
algorithms had created or developed Hamas’s content by
directing that content to users most interested in Hamas and
its terrorist activities. Id. at 69. The majority reasoned
that Facebook does not edit the content that its users post
and that Facebook’s algorithms are content neutral in that
they “take the information provided by Facebook users and
‘match’ it to other users--again, materially unaltered--based
on objective factors applicable to any content, whether it
concerns soccer, Picasso, or plumbers.” Id. at 70.
Chief Judge Katzmann dissented in part in Force. Chief
Judge Katzmann contended that Facebook does not act as a mere
publisher when its algorithms suggest content to users
because in suggesting content, Facebook sends its own message
to users about what it believes they will like. Chief Judge
Katzmann also considered the targeting perpetuated by the
algorithms to be problematic: “Facebook ‘does not merely
provide a framework that could be utilized for proper or
improper purposes; rather, [Facebook’s] work in developing’
the algorithm and suggesting connections to users based on
their prior activity on Facebook, including their shared
interest in terrorism, ‘is directly related to the alleged
illegality of the site.’” Id. at 83 (Katzmann, C.J.,
dissenting in part) (quoting Roommates.Com, 521 F.3d at
1171).
In Gonzalez, 2 F.4th 871, the Ninth Circuit also
addressed terrorism-related claims brought against social-
media companies for their use of algorithms and reached the
same conclusion as did the majority in Force. The Ninth
Circuit held that “a website’s use of content-neutral
algorithms, without more, does not expose it to liability for
content posted by a third-party.” Id. at 896. The Ninth
Circuit rejected Chief Judge Katzmann’s arguments, which it
construed as based on a misreading of Roommates. The Gonzalez
Court explained that in Roommates, the “website required
users to identify themselves by sex, sexual orientation, and
whether they had children, then directed users to describe
their preferred tenant or landlord using pre-populated
answers concerning the same criteria. In this way, the website
prompted discriminatory responses that violated fair housing
laws. Because the website itself generated the options for
selecting a tenant or landlord based on discriminatory
criteria, our en banc court concluded the website materially
contributed to the unlawfulness of the posted content.” Id.
(citations omitted).
The Gonzalez panel was, like the Force panel, split.
Judge Berzon concurred in the majority opinion in Gonzalez
based on Ninth Circuit precedent but agreed with Chief Judge
Katzmann’s view that “websites’ use of machine-generated
algorithms to recommend content and contacts are not within
the publishing role immunized under section 230.” Id. at 917
(Berzon, J., concurring). Judge Gould dissented in part for
the reasons stated by Chief Judge Katzmann in his partial
dissent in Force.
This Court reads Force and Gonzalez to stand for the
proposition that the provision of neutral tools that could be
used for a discriminatory or illegal purpose is not in and of
itself sufficient to abrogate Section 230 immunity. Thus, the
use of neutral algorithms does not constitute content
development. But that proposition does not preclude the NY
AG’s claims here. The NY AG’s claims are, unlike those in
Force and Gonzalez, not based on Message’s mere provision or
use of content-neutral tools in a neutral manner. Rather, the
NY AG alleges that the Message Defendants actively and
specifically aided Wohl and Burkman by identifying target zip
codes for the robocall message. Combined with the allegations
that the Message Defendants were aware of the intimidating
contents and/or purpose of the robocall message, the
allegation that the Message Defendants curated a list of
target zip codes for Burkman and Wohl takes this case well
outside the bounds of Force and Gonzalez.
By aiding Wohl and Burkman through the identification of
predominantly Black zip codes to amplify the intimidating
nature of the robocall message and thereby achieve the goal
of voter suppression, as the NY AG has alleged, the Message
Defendants’ role “far exceeded that of neutral assistance.”
LeadClick, 838 F.3d at 176. Just as in Roommates, they
themselves “generated the options” for the target zip codes
based on discriminatory criteria. See Gonzalez, 2 F.4th at
896. In other words, by actively curating the zip codes to
further Wohl and Burkman’s discriminatory and illegal
purpose, the Message Defendants crossed the line from just
“taking actions . . . to . . . display . . . actionable
content” and instead have “responsibility for what makes the
displayed content [itself] illegal or actionable.” Force, 934
F.3d at 68 (quoting Kimzey v. Yelp! Inc., 836 F.3d 1263, 1269
n.4 (9th Cir. 2016)). By actively and knowingly aiding Wohl
and Burkman in targeting Black recipients with the robocall
message, the Message Defendants made the message more visible
and usable,8 materially contributed to the illegality of the
alleged conduct, and exceeded the scope of a publisher.
Rather, this case is more analogous to Doe v. Mindgeek
USA Incorporated, No. 21 Civ. 338 (C.D. Cal. Sept. 3, 2021),
ECF No. 66. There, plaintiff Jane Doe brought suit against
the defendants for allegedly violating federal sex-
trafficking and child-pornography laws by “knowingly posting,
enabling the posting of, and profiting from pornographic
8 That Mahanian or Message did not necessarily aid Wohl and Burkman in
creating the substance of the robocall message is immaterial. It is as
yet possible that the substance of the message was discussed during the
many communications between Burkman and Mahanian. Regardless, the Message
Defendants nonetheless can be said to have developed the message at issue
by making the message more visible to the Black voters they helped target
and to whom the robocalls were sent. See Accusearch, 570 F.3d at 1198.
And while Wohl and Burkman were the primary masterminds of the robocall
campaign, this does not absolve the Message Defendants of liability.
Section 230 does not protect those who are only partially responsible for
development of the content at issue, as long as they did indeed help
develop it. See id.
videos featuring persons under the age of 18.” Id. at 2. The
defendants asserted a Section 230 defense, but the district
court rejected it, agreeing with the plaintiff that the
defendants acted as content creators. The district court
noted that the defendants were alleged to have “established
guidelines for categories, tags, and titles that Defendants
direct traffickers to create and promote child pornography to
target the ‘right’ fans,” knew of illegal child pornography
on their platforms, and profited from the posting of such
content, along with curating video playlists with titles such
as “less than 18.” Id. at 20. Here, too, the Message
Defendants’ assistance in identifying the zip codes of
predominantly Black residents helped Wohl and Burkman target
their intended audience, and they both knew of and profited
from Wohl and Burkman’s voter-suppression campaign. The
Message Defendants thereby facilitated “both the
dissemination” of the robocall message “and the development”
of the message. See id. at 20-21. As such, this conduct “goes
far beyond the neutral tools the Ninth Circuit” -- and Second
Circuit -- have “protected within the ambit of Section 230
immunity.” See id. at 20.
The Message Defendants’ argument that they are entitled
to immunity because “[l]ike many distribution platforms,
Message Communications allows its customers to select where
to send their messages” misses the point. See Message Defs.
Supp. Br. at 3. If Message’s liability were solely predicated
on its provision of a tool or functionality by which users
can specify the target recipients of robocalls, then there is
little doubt that Message would be shielded. Under Force, a
neutral tool provided in a neutral manner, even if it could
be misused, would not turn Message into a content creator or
more than a passive publisher. But the Complaint in
Intervention does not simply allege that Message allows
individuals to identify robocall recipients. It alleges that
“Message Communications worked with Wohl and Burkman to
target specific zip codes to maximize the threatening effects
the robocall would have on Black voters in New York and other
large metropolitan areas.” Complaint in Intervention ¶ 87.
Put differently, Message did not impartially provide a
neutral tool that was then misused by third parties -- Message
itself engaged in misuse that materially contributed to the
illegality of the complained-of conduct.
In sum, the Message Defendants’ entitlement to Section
230 immunity is not apparent from the face of the Complaint
in Intervention. There are insufficient facts from which the
Court can conclude that Message is a user or provider of an
interactive computer service. Moreover, the allegations
establish that the Message Defendants acted as much more than
neutral intermediaries as a result of their active efforts in
helping Wohl and Burkman target Black residents’ zip codes to
further the campaign’s voter-suppression goal. For these
reasons, the NY AG’s claims are not barred by Section 230 at
this stage.
IV. ORDER
Accordingly, for the reasons stated above, the letter
motion so deemed by the Court as filed by defendants Robert
Mahanian and Message Communications, Inc. to dismiss the
Complaint in Intervention of Letitia James, Attorney General
of the State of New York on behalf of the People of the State
of New York (Dkt. Nos. 126, 132) is hereby DENIED.
SO ORDERED.
Dated: New York, New York
17 September 2021
Victor Marrero.
U. oe Dede
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