The Volokh Conspiracy
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From Tuesday's decision by Judge LaShann DeArcy Hall in Elliott v. Donegan:
On or about October 11, 2017, [Plaintiff Stephen Elliott's] name was published on a shared Google spreadsheet entitled "Shitty Media Men" (the "List"). He was identified as a "Freelance writer/novelist." Under the heading "ALLEGED MISCONDUCT," Plaintiff's entry initially stated, "rape accusations, sexual harassment." On or about and between October 11 and October 12, 2017, the entry regarding Plaintiff was revised to read "rape accusations, sexual harassment [sic], coercion, unsolicited invitations to his apartment, a dude who snuck into Binders???" According to the complaint, Defendant, together with certain Jane Does, outlined Plaintiff's entry in red, signaling that Plaintiff was accused of physical sexual violence by multiple women. Likewise, the column headed "NOTES" indicated that "multiple women allege misconduct." Although the entry for Plaintiff initially appeared at row 13, it was subsequently moved to row 12. Plaintiff complains that the allegations about him included in the List are false.
Defendant [Moira] Donegan is alleged to have created the List. She, along with Jane Does, circulated the List to numerous women in the media industry via email and other electronic means. The purpose of the List was to "encourag[e] women to anonymously publish allegations of sexual misconduct by men" in the media sector. According to Plaintiff, participants were encouraged to publish allegations of misconduct, whether or not they had personal knowledge of the conduct or evidence to corroborate the allegations. Defendant, together with Jane Does, actively edited, removed, organized, published, highlighted, and added to the list. Defendant is alleged to have added heading names to the columns, including, "NAME, AFFILIATION, ALLEGED MISCONDCUT and NOTES." Defendant also added a header to the top of the List that read, "Men accused of physical sexual violence by multiple women are highlighted in red."
On October 12, 2017, Buzzfeed published an article about the existence of the List, and various other news outlets reported on it. At this point, more than 70 men had been named on the List. By Defendant's own characterization, the List had gone "viral" and she took the List offline after about 12 hours.
In January 2018, Defendant published an article in New York Magazine's online division, "The Cut," identifying herself as the creator of the List. In the article, Defendant described her perspective on the List's susceptibility to falsehoods as follows:
"There were pitfalls. The document was indeed vulnerable to false accusations, a concern I took seriously. I added a disclaimer at the top of the spreadsheet: 'This document is only a collection of misconduct allegations and rumors. Take everything with a grain of salt.'"
Later in the article, Defendant went on to comment about the veracity of the claims: "Some have expressed doubts about the veracity of the claims in the document, but it's impossible to deny the extent and severity of the sexual harassment problem in media if you believe even a quarter of the claims that were made on the spreadsheet. For my part, I believe significantly more than that." …
The court first had to consider whether Elliott was a "limited-purpose public figure," which is to say someone who had voluntarily injected himself into a public controversy. If he were, then he'd have to show that any statements by Donegan knew that any statements she made about him in the context of that controversy were false or at least likely false. If he weren't a limited-purpose public figure, then he'd have to show that Donegan was negligent about the statements' falsehood. (I oversimplify here, but let's go with that.)
The court concluded that the relevant public controversy was "sexual assault, sexual harassment, and consent in the workplace," and Elliott's past writings about sex and sex crimes weren't sufficiently related to that controversy (because they weren't focused on the workplace.
The court then concluded that Elliott's lawsuit wasn't barred by 47 U.S.C. § 230, which generally immunizes online site operators from liability for third parties' online speech on their sites: Elliott, the court stressed, had alleged that Donegan had herself written or added to some of the material about him on the List. (Presumably that will be determined through further discovery.)
Plaintiff alleges that Defendant published the allegedly defamatory accusations in the List as relayed to her by another person. Defendant argues that, if true, she is shielded by § 230 because she did not materially contribute to their allegedly defamatory meaning, and did not change the meaning and purpose of the content. However, this argument assumes a key fact not known to the Court at this juncture—whether Plaintiff materially contributed to the allegedly defamatory meaning—which is the very fact on which CDA immunity turns. That Plaintiff did not explicitly plead that Defendant materially contributed to the unlawful statements she inputted in the list on someone else's behalf is of no consequence. Defendant may not "rel[y] upon the absence of facts not pled in the complaint" to secure CDA immunity on a motion to dismiss.
Furthermore, Plaintiff also rightly points out that if Defendant inputted information into the List that was not provided to Defendant for use on the Internet, she would not qualify for CDA immunity. "The structure and purpose of § 230(c)(1) indicate that the immunity applies only with regard to third-party information provided for use on the Internet or another interactive computer service." Thus, if Defendant wrote the allegedly defamatory statements in the List that had been relayed to her by a third party—and the third party never intended that communication "be placed on an interactive computer service for public viewing"—CDA immunity would not attach…. [I]f "an individual who happens to operate a website receives a defamatory 'snail mail' letter from an old friend, the website operator cannot be said to have been 'provided' the information in his capacity as a website service." …
But the court rejected Elliott's alternative theory that Donegan had "'specifically encourage[d]' the posting of unlawful content" and was thus ineligible for § 230 immunity:
Plaintiff directs the Court to the disclaimer at the top of the List, which described it as "only a collection of allegations and rumors" that should be taken "with a grain of salt." Plaintiff argues that "[t]his statement alone could reasonably have been interpreted by the List's recipients as encouraging them to post their own 'rumors'" and "[n]owhere did the List advise users that they were only to post about their own experiences." …
Roommates.Com [a leading 2008 Ninth Circuit precedent] provides a helpful illustration as to when the design of a website can be found to have encouraged unlawful content. Roommates operated a website designed to match individuals seeking roommates. As part of the online registration form for the service, Roommates required subscribers to answer questions about their sex, sexual orientation and familial status, and their roommate preferences along these same criteria. The potential answers to these questions were pre-set by Roommates. ("Subscribers who are seeking housing must make a selection from a drop-down menu, again provided by Roommates, to indicate whether they are willing to live with "Straight or gay" males, only with "Straight" males, only with "Gay" males or with "No males.") Roommates used the responses to these questions to populate a subscriber's profile page. The Ninth Circuit found that Roommates' website, by design, "force[d] subscribers to divulge protected characteristics and discriminatory preferences, and to match those who have rooms with those who are looking for rooms based on criteria that appear to be prohibited by the FHA [Fair Housing Act]." Thus, Roommates was not entitled to CDA immunity on this aspect of the registration form. ("By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information. And section 230 provides immunity only if the interactive computer service does not 'creat[e] or develop[ ]' the information 'in whole or in part.'" Nothing about the registration form's pre-set answers is analogous to the List.
Rather, the List, which was circulated in a Google spreadsheet, is akin to the comment boxes in Roommates.Com. Roommates also presented subscribers with a blank text box and prompted subscribers to "tak[e] a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate." Subscribers could write as much or as little as desired, and the responses were visible to other paying subscribers. Id. Certain subscribers took the opportunity to write discriminatory comments such as, "NOT looking for [B]lack [M]uslims." The Ninth Circuit found that the CDA protected Roommates with respect to these comment boxes. The court reasoned that because "Roommate[s] publishes these comments as written," "[i]t does not provide any specific guidance as to what the essay should contain," and it does not "urge subscribers to input discriminatory preferences," Roommates was not responsible for the development of this content.
As with Roommates' comment box, the possibility that someone may have entered defamatory content into the List does not mean that Defendant specifically encouraged unlawful content. That the Defendant added the disclaimer that the document consisted of "a collection of misconduct allegations and rumors" does not change the Court's conclusion. Neither this header nor the design of the spreadsheet urges or requires users to input defamatory statements—or otherwise unlawful content—to view or contribute to the List. In other words, based on the design of the List, that Defendant circulated the List, without more, does not constitute specific encouragement of unlawful content.
That is not to say that Plaintiff's complaint has foreclosed the possibility that Defendant encouraged the posting of unlawful content. The full contours of Defendant's conduct during the approximately 12 hour period during which her Google spreadsheet was online are unknown at this juncture. Accordingly, Plaintiff is entitled to discovery on whether Defendant specifically encouraged the posting of unlawful content on the List….
And the court concluded that the highlighting in red and annotation of plaintiff's entry wouldn't themselves be creation or development of information:
Defendant is correct that "visually aggregating or classifying user content does not constitute 'creation or development' under Section 230(f)(3)." The implementation of categorization features "constitute[s] quintessential neutral assistance." … [C]ategorizing information, without more, "does not transform [a defendant] into a developer of the underlying misinformation."
Here, Plaintiff's entry included "rape accusations," in the plural form. In highlighting Plaintiff's entry in red, denoting that Plaintiff was "accused of physical sexual violence by multiple women," Defendant provided neutral assistance or generally augmented the content…. See Seldon v. Magedson (S.D.N.Y. 2012) (dismissing the case on other grounds but noting that the defendant's act of adding the heading "Sexual Pervert" to a post that detailed how the plaintiff had allegedly kept "all kinds of perverted photos on his computer" did not alter the substance, meaning, or purpose of the content for the purposes of the CDA"). Therefore, Defendant's categorization of Plaintiff's entry in the List through text or highlighting does not bring her outside of the protection of the CDA.
Finally, the court provided that "the parties shall proceed without delay to narrowly tailored discovery to address factual issues related to Defendant's CDA immunity defense….. Once such discovery is completed, the parties may move for summary judgment on CDA immunity in accordance with this Court's Individual Practices."