The Volokh Conspiracy
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Harvard Crimson Was Entitled to Ban Commenter for What He Claims Were "Anti-Zionist" Comments
From today's decision by Judge Angel Kelley (D. Mass.) in Affleck v. Harvard Crimson Inc.:
Plaintiff Jonathan Affleck [who has also at times litigated as Joachim Martillo -EV] brings this action against Defendant The Harvard Crimson, Inc…. According to the Complaint, the Crimson … deleted Affleck's comments on three articles on the Crimson's website and then suspended Affleck's ability to post. Affleck claims that the Crimson's actions violated the First Amendment …, [the Massachusetts Constitution's free expression provision], and finally, federal and state laws related to common carriage discrimination and public accommodation discrimination….
According to the Complaint, from February 7 to February 10, 2024, Affleck commented, under two different names, 38 times across three articles on the Crimson's website. The three articles focused on Palestine and the Palestinian people…. [In an earlier case, Affleck] "… represent[ed] that each defendant disabled or suspended his account on their respective platforms because he posted content that each defendant deemed to be anti-Zionist."
The court concluded that 47 U.S.C. § 230 precludes all of Affleck's claims:
"No 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, whether or not such material is constitutionally protected." 47 U.S.C. § 230(c)(2). This provision "'precludes courts from entertaining claims that would place a computer service provider in a publisher's role,' and therefore bars 'lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions – such as deciding whether to publish, withdraw, postpone, or alter content.'"
"[C]ourts that have addressed these issues have generally interpreted Section 230 immunity broadly, so as to effectuate Congress's 'policy choice … not to deter harmful online speech through the … route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages.'" Instead Congress' goal "was to encourage service providers to self-regulate the dissemination of offensive material over their services." Thus, Section 230 "allows website operators to engage in blocking and screening of third-party content, free from liability for such good-faith efforts."
Under Section 230(c)(1), the Crimson is shielded from liability if: (1) the Crimson is a provider or user of an interactive computer service, (2) the claim is based on information provided by another information content provider, and (3) the claim would treat the Crimson as the publisher or speaker of that information. The First Circuit has made clear, "(1) web site operators … are 'provider[s] … of an interactive computer service'; (2) message board postings do not cease to be 'information provided by another information content provider' merely because the 'construct and operation' of the web site might have some influence on the content of the postings; and (3) immunity … cover[s] any claim that would treat [the website] 'as the publisher.'"
With this backdrop, … the deletion of content posted by Affleck and the disabling of his account are well within the Crimson's traditional editorial functions protected by the CDA.
As a result, the Crimson is also immune from Affleck's state common carriage and public accommodation discrimination claims. Further, even if the Crimson was not immune, Affleck has failed to state a claim, as the Crimson is "not [a] common carrier[] of 'merchandise or other property'" and is "not [a] place[] of 'public accommodation.'"
I'm not sure that § 230, properly interpreted, does indeed preempt state laws that impose antidiscrimination norms or viewpoint-neutrality norms on service or content provider removal decisions (see Adam Candeub's and my article on the subject). But I agree that the Crimson should in any event prevail because the relevant federal and state statutes don't actually impose such a mandate (and the First Amendment and the Massachusetts Constitution's free speech provisions apply only to government action).
Note that Affleck is also a commenter on our blog (under his own name), and we've had our run-ins with him as well. Here's a sample comment of his on one of our posts:
A US Zionist is almost certainly in violation of one of the above statutes [related to genocide] and must be arrested, tried, almost certainly convicted, sentenced, and sent to the gallows or to a long prison term.
Why isn't the US DOJ mass-arresting US Zionists? The executive branch has been corrupted by Zionist money. No Zionist should be roaming freely in the US. Every US Zionist individual and organization must be stripped of all assets. Every US Zionist must die penniless and impoverished.
The court also added,
The Court warns Plaintiff Affleck that the use of fictitious names [referring to his previous case filed under the name Joachim Martillo, which he called his "professional name" -EV] is strongly disfavored and should only be used when given leave by the court. Federal Rule of Civil Procedure 10(a) provides that "[t]he title of the complaint must name all the parties" and Federal Rule of Civil Procedure 17(a)(1) provides that "[a]n action must be prosecuted in the name of the real party in interest." Although the use of pseudonyms may be allowed in "exceptional cases," there is a "strong presumption against the use of pseudonyms in civil litigation."
