Dawn Bennett v. Google LLC

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).

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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.

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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.

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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).

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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

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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.