Filed 11/20/06



IN THE SUPREME COURT OF CALIFORNIA



STEPHEN J. BARRETT et al.,

Plaintiffs

and

Appellants,

S122953

v.

Ct.App.

1/2

A096451

ILENA ROSENTHAL,

) Alameda

County

Defendant and Respondent.

Super. Ct. No. 833021-5



In the Communications Decency Act of 1996, Congress declared: “No

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.”

(47 U.S.C. § 230(c)(1).)1 “No cause of action may be brought and no liability may

be imposed under any State or local law that is inconsistent with this section.”

(§ 230(e)(3).)

These provisions have been widely and consistently interpreted to confer

broad immunity against defamation liability for those who use the Internet to

publish information that originated from another source. The immunity has been

applied regardless of the traditional distinction between “publishers” and

“distributors.” Under the common law, “distributors” like newspaper vendors and

book sellers are liable only if they had notice of a defamatory statement in their

merchandise. The publisher of the newspaper or book where the statement

originally appeared, however, may be held liable even without notice.




1 Public Law No. 104-104 (Feb. 8, 1996) 110 Statutes at Large 56.

Hereafter, we refer to 47 United States Code section 230 as section 230, and to the
Communications Decency Act of 1996 as the CDA.

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In this case, the Court of Appeal diverged from the prevailing interpretation

of section 230. It decided that common law “distributor” liability survived the

congressional grant of immunity, so that Internet service providers and users are

exposed to liability if they republish a statement with notice of its defamatory

character.

We granted review to decide whether section 230 confers immunity on

“distributors.” Because this case involves the liability of an individual rather than

a service provider, we asked the parties to address the definition of the statutory

term “user.” We also requested briefing on whether the immunity analysis is

affected if a user engages in active rather than passive conduct. We conclude that

section 230 prohibits “distributor” liability for Internet publications. We further

hold that section 230(c)(1) immunizes individual “users” of interactive computer

services, and that no practical or principled distinction can be drawn between

active and passive use. Accordingly, we reverse the Court of Appeal’s judgment.

We acknowledge that recognizing broad immunity for defamatory

republications on the Internet has some troubling consequences. Until Congress

chooses to revise the settled law in this area, however, plaintiffs who contend they

were defamed in an Internet posting may only seek recovery from the original

source of the statement.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs, Dr. Stephen J. Barrett and Dr. Timothy Polevoy, operated Web

sites devoted to exposing health frauds. Defendant Ilena Rosenthal directed the

Humantics Foundation for Women and operated an Internet discussion group.

Plaintiffs alleged that Rosenthal and others committed libel by maliciously

distributing defamatory statements in e-mails and Internet postings, impugning

plaintiffs’ character and competence and disparaging their efforts to combat

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fraud.2 They alleged that Rosenthal republished various messages even after Dr.

Barrett warned her they contained false and defamatory information.

Rosenthal moved to strike the complaint under the anti-SLAPP statute.

(Code Civ. Proc., § 425.16; SLAPP is an acronym for strategic lawsuit against

public participation.) She claimed her statements were protected speech, and

argued that plaintiffs could not establish a probability of prevailing because she

was immune under section 230. (See Code Civ. Proc., § 425.16, subd. (b);

Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) She also

contended her statements were not actionable.

The court granted the motion, finding that Rosenthal’s statements

concerned an issue of public interest within the scope of the anti-SLAPP statute,

and were, for the most part, not actionable because they contained no provably

false assertions of fact. Plaintiffs do not challenge that ruling. The court

determined that the only actionable statement appeared in an article Rosenthal

received via e-mail from her codefendant Tim Bolen. This article, subtitled

“Opinion by Tim Bolen,” accused Dr. Polevoy of stalking a Canadian radio

producer. Rosenthal posted a copy of this article on the Web sites of two

newsgroups devoted to alternative health issues and the politics of medicine, not

on the site of her own discussion group. According to Rosenthal, these

newsgroups were part of “the wild west of the Internet,” with “no administrators




2 The complaint summarizes the defamatory statements as follows:

“Dr. Barrett is arrogant, bizarre, closed-minded; emotionally disturbed,

professionally incompetent, intellectually dishonest, a dishonest journalist, sleazy,
unethical, a quack, a thug, a bully, a Nazi, a hired gun for vested interests, the
leader of a subversive organization, and engaged in criminal activity (conspiracy,
extortion, filing a false police report, and other unspecified acts.)”


“Dr. Polevoy is dishonest, closed-minded; emotionally disturbed,

professionally incompetent, unethical, a quack, a fanatic, a Nazi, a hired gun for
vested interests, the leader of a subversive organization, and engaged in criminal
activity (conspiracy, stalking of females, and other unspecified acts) and has made
anti-Semitic remarks.”

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and no one to enforce rules of conduct.” 3 The trial court ruled that this

republication was immunized by section 230(c)(1).

The Court of Appeal vacated the order granting the motion to strike insofar

as it applied to Dr. Polevoy. It held that section 230 did not protect Rosenthal

from liability as a “distributor” under the common law of defamation. We granted

Rosenthal’s petition for review.4

II. DISCUSSION

The leading case on section 230 immunity rejected the “distributor”

liability theory adopted by the Court of Appeal here. (Zeran v. America Online,

Inc. (4th Cir. 1997) 129 F.3d 327, 331-333 (Zeran).) We first discuss the Zeran

holding and rationale, then the Court of Appeal’s contrary analysis.5 Recognizing

“distributor” liability would have a dramatic impact on Internet service providers.

3

For a description of Internet newsgroups, see Reno v. American Civil

Liberties Union (1997) 521 U.S. 844, 851.


4 Before reaching the immunity issue, the Court of Appeal rejected

plaintiffs’ argument that Rosenthal’s speech was not protected by the anti-SLAPP
statute. Plaintiffs contended the free speech clause of the California Constitution
did not apply because no state action was involved in Rosenthal’s Internet
publications. In their answer to the petition for review, plaintiffs asked us to
review and reverse that part of the Court of Appeal’s decision.


The Court of Appeal properly rejected plaintiffs’ claim. Web sites

accessible to the public, like the “newsgroups” where Rosenthal posted Bolen’s
statement, are “public forums” for purposes of the anti-SLAPP statute.
(Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc.
(2005) 129 Cal.App.4th 1228, 1247; Wilbanks v. Wolk (2004) 121 Cal.App.4th
883, 895; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1007;
MCSi, Inc. v. Woods (N.D.Cal 2003) 290 F.Supp.2d 1030, 1033; see also New.Net,
Inc. v. Lavasoft (C.D.Cal 2004) 356 F.Supp.2d 1090, 1107 [statements made in
software available free of charge].)


Plaintiffs argue that Barrett, as well as Polevoy, was defamed in the Bolen

article. We need not address this claim, given our conclusion that Rosenthal is
immune from liability under section 230.


5 In his reply brief, plaintiff Polevoy adopts the Court of Appeal’s

reasoning. We address the arguments for “distributor” liability as they are framed
in its opinion.

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We agree with the Zeran court that Congress did not intend to create such an

exception to section 230 immunity.6




6 Section 230 includes the following provisions relevant to our discussion:

“(a) Findings. The Congress finds the following:
“(1) The rapidly developing array of Internet and other interactive computer
services available to individual Americans represent an extraordinary advance in
the availability of educational and informational resources to our citizens.
“(2) These services offer users a great degree of control over the information that
they receive, as well as the potential for even greater control in the future as
technology develops.
“(3) The Internet and other interactive computer services offer a forum for a true
diversity of political discourse, unique opportunities for cultural development, and
myriad avenues for intellectual activity.
“(4) The Internet and other interactive computer services have flourished, to the
benefit of all Americans, with a minimum of government regulation.
“(5) Increasingly Americans are relying on interactive media for a variety of
political, educational, cultural, and entertainment services.
“(b) Policy. It is the policy of the United States—
“(1) to promote the continued development of the Internet and other interactive
computer services and other interactive media;
“(2) to preserve the vibrant and competitive free market that presently exists for
the Internet and other interactive computer services, unfettered by Federal or State
regulation;
“(3) to encourage the development of technologies which maximize user control
over what information is received by individuals, families, and schools who use
the Internet and other interactive computer services;
“(4) to remove disincentives for the development and utilization of blocking and
filtering technologies that empower parents to restrict their children's access to
objectionable or inappropriate online material; and
“(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish
trafficking in obscenity, stalking, and harassment by means of computer.
“(c) Protection for ‘Good Samaritan’ blocking and screening of offensive material.
“(1) Treatment of publisher or speaker. No 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.
“(2) Civil liability. No provider or user of an interactive computer service shall
be held liable on account of—
“(A) 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; or

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Rosenthal, however, is not a service provider, at least with respect to the

newsgroups where she posted the Bolen article. This appears to be the first

published case in which section 230 immunity has been invoked by an individual

who had no supervisory role in the operation of the Internet site where allegedly

defamatory material appeared, and who thus was clearly not a provider of an

“interactive computer service” under the broad definition provided in the CDA.

(§ 230(f)(2); see fn. 7, ante.) Accordingly, we asked the parties to brief the

meaning of the term “user” in section 230, and whether any distinction might be

drawn between active and passive use under the statute. In part C of our

discussion, we conclude that Congress employed the term “user” to refer simply to

anyone using an interactive computer service, without distinguishing between

active and passive use.


“(B) any action taken to enable or make available to information content providers
or others the technical means to restrict access to material described in paragraph
[(A)].
“[¶] . . . [¶]
“(e) Effect on other laws.
“[¶] . . . [¶]
“(3) State law. Nothing in this section shall be construed to prevent any State
from enforcing any State law that is consistent with this section. No cause of
action may be brought and no liability may be imposed under any State or local
law that is inconsistent with this section.
[¶] . . . [¶]
“(f) Definitions. As used in this section:
“(1) Internet. The term ‘Internet’ means the international computer network of
both Federal and non-Federal interoperable packet switched data networks.
“(2) Interactive computer service. 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.
“(3) Information content provider. 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. . . .” (Emphasis added.)

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A. Zeran

Kenneth Zeran was bombarded with angry and derogatory telephone calls,

including death threats, after an unidentified person posted a message on an

America Online, Inc. (AOL) bulletin board. The message advertised t-shirts with

offensive slogans referring to the Oklahoma City bombing of the Alfred P. Murrah

Federal Building, and instructed prospective purchasers to call Zeran’s home

telephone number. Zeran notified AOL of the problem, and the posting was

eventually removed. However, similar postings appeared, and an Oklahoma radio

announcer aired the contents of the first message. Zeran was again inundated with

threatening phone calls. He sued AOL for unreasonable delay in removing the

defamatory messages, refusing to post retractions, and failing to screen for similar

postings. (Zeran, supra, 129 F.3d at pp. 328-329.)

AOL successfully moved for judgment on the pleadings, relying on section

230. (Zeran, supra, 129 F.3d at pp. 329-330.) The Fourth Circuit Court of

Appeals affirmed, holding that the plain language of section 230 “creates a federal

immunity to any cause of action that would make service providers liable for

information originating with a third-party user of the service. Specifically, § 230

precludes courts from entertaining claims that would place a computer service

provider in a publisher’s role. Thus, 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—are barred.”

(Zeran, at p. 330.)

Referring to the congressional finding that the Internet has flourished “with

a minimum of government regulation” (§ 230(a)(4)), and the policy statement

favoring a free market for interactive computer services “unfettered by Federal or

State regulation” (§ 230(b)(2)), the Zeran court reasoned that Congress viewed

“[t]he imposition of tort liability on service providers for the communications of

others” as “simply another form of intrusive government regulation of speech.”

(Zeran, supra, 129 F.3d at p. 330.) While original posters of defamatory speech

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do not escape accountability, Congress “made a policy choice . . . not to deter

harmful online speech [by] imposing tort liability on companies that serve as

intermediaries for other parties’ potentially injurious messages.” (Id. at pp. 330-

331.) This policy reflects a concern that if service providers faced tort liability for

republished messages on the Internet, they “might choose to severely restrict the

number and type of messages posted.” (Id. at p. 331.)

The court noted that another important purpose of section 230 was “to

encourage service providers to self-regulate the dissemination of offensive

material over their services.” (Zeran, supra, 129 F.3d at p. 331.) The legislative

history indicates that section 230 was enacted in response to an unreported New

York trial court case. (Stratton Oakmont, Inc. v. Prodigy Services Co.

(N.Y.Sup.Ct. May 24, 1995) 1995 WL 323710, 23 Media L.Rep. 1794 (Stratton

Oakmont).) 7 There, a service provider was held liable for defamatory comments

posted on one of its bulletin boards, based on a finding that the provider had

adopted the role of “publisher” by actively screening and editing postings.

“Fearing that the specter of liability would . . . deter service providers from

blocking and screening offensive material, Congress enacted § 230’s broad

immunity,” which “forbids the imposition of publisher liability on a service

provider for the exercise of its editorial and self-regulatory functions.” (Zeran,

supra, 129 F.3d at p. 331.)

Zeran made the same argument adopted by the Court of Appeal here: that

Congress intended to distinguish between “publishers” and “distributors,”




7 See Senate Report Number 104-230, Second Session, page 194 (1996)

[“One of the specific purposes of [section 230] is to overrule Stratton Oakmont v.
Prodigy and any other similar decisions”]; House of Representatives Conference
Report Number 104-458, Second Session, page 194 (1996) [“The conferees
believe that [decisions like Stratton Oakmont] create serious obstacles to the
important federal policy of empowering parents to determine the content of
communications their children receive through interactive computer services”];
141 Congressional Record H8469-H8470 (daily ed., June 14, 1995) [statement of
Rep. Cox, referring to disincentives created by Stratton Oakmont decision].

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immunizing publishers but leaving distributors exposed to liability. At common

law, “primary publishers,” such as book, newspaper, or magazine publishers, are

liable for defamation on the same basis as authors. Book sellers, news vendors, or

other “distributors,” however, may only be held liable if they knew or had reason

to know of a publication’s defamatory content. (Zeran, supra, 129 F.3d at p. 331;

Prosser & Keeton, The Law of Torts (5th ed.1984) § 113, pp. 810-811; Rest.2d

Torts, § 581, subd. (1), & coms. c, d, & e, pp. 232-234; see also Osmond v. EWAP,

Inc. (1984) 153 Cal.App.3d 842, 852-854.) 8 Zeran contended that because

Congress mentioned only the term “publisher” in section 230, it intended to leave

“distributors” unprotected. He claimed that once he gave AOL notice that it was

posting defamatory statements on its bulletin board, AOL became liable as a

“distributor.” (Zeran, supra, 129 F.3d at pp. 331-332.)

The

Zeran court held that the publisher/distributor distinction makes no

difference for purposes of section 230 immunity. Publication is a necessary

element of all defamation claims, and includes every repetition and distribution of

a defamatory statement. (Zeran, supra, 129 F.3d at p. 332, citing Prosser &

Keeton, The Law of Torts, supra, § 113, pp. 799, 802, 803, and Rest.2d Torts, §§

558, subd. (b) & 577.) Although “distributors” become liable only upon notice,

they are nevertheless included in “the larger publisher category.” (Zeran, supra,

129 F.3d at p. 332.) “Zeran simply attaches too much importance to the presence

of the distinct notice element in distributor liability. . . . [O]nce a computer

service provider receives notice of a potentially defamatory posting, it is thrust

into the role of a traditional publisher. The computer service provider must decide

whether to publish, edit, or withdraw the posting. In this respect, Zeran seeks to




8 The distinction is a practical one. Publishers are ordinarily aware of the

content of their copy. It is not reasonable, however, to expect distributors to be
familiar with the particulars of every publication they offer for sale. Therefore,
only a distributor who is aware of defamatory content shares liability with the
publisher.

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impose liability on AOL for assuming the role for which § 230 specifically

proscribes liability—the publisher role.” (Id. at pp. 332-333.)

Subjecting service providers to notice liability would defeat “the dual

purposes” of section 230, by encouraging providers to restrict speech and abstain

from self-regulation. (Zeran, supra, 129 F.3d at p. 333.) A provider would be at

risk for liability each time it received notice of a potentially defamatory statement

in any Internet message, requiring an investigation of the circumstances, a legal

judgment about the defamatory character of the information, and an editorial

decision on whether to continue the publication. “Although this might be feasible

for the traditional print publisher, the sheer number of postings on interactive

computer services would create an impossible burden in the Internet context.”

(Ibid.)

“Similarly,

notice-based

liability

would deter service providers from

regulating the dissemination of offensive material over their own services. Any

efforts by a service provider to investigate and screen material posted on its

service would only lead to notice of potentially defamatory material more

frequently and thereby create a stronger basis for liability. Instead of subjecting

themselves to further possible lawsuits, service providers would likely eschew any

attempts at self-regulation.

“More generally, notice-based liability for interactive computer service

providers would provide third parties with a no-cost means to create the basis for

future lawsuits. Whenever one was displeased with the speech of another party

conducted over an interactive computer service, the offended party could simply

‘notify’ the relevant service provider, claiming the information to be legally

defamatory. . . . Because the probable effects of distributor liability on the vigor

of Internet speech and on service provider self-regulation are directly contrary to §

230’s statutory purposes, we will not assume that Congress intended to leave

liability upon notice intact.” (Zeran, supra, 129 F.3d at p. 333.)

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In support of his argument for notice-based liabilty, Zeran invoked the rule

against abrogation of common law principles unless Congress speaks directly to

the question. (Zeran, supra, 129 F.3d at pp. 333-334; United States v. Texas

(1993) 507 U.S. 529, 534.) However, the court reasoned that Congress had

spoken directly by employing the term “publisher,” and that preserving

“distributor” liability would defeat the primary purposes of section 230. The

policy of strictly construing statutes in derogation of the common law does not

require a literal interpretation conflicting with the obvious legislative purpose.

(Zeran, supra, 129 F.3d at p. 334, citing Isbrandtsen Co. v. Johnson (1952) 343

U.S. 779, 783.)

The

Zeran court’s views have been broadly accepted, in both federal and

state courts.9 Before the Court of Appeal issued its opinion below, two other

California Courts of Appeal had followed Zeran. In Kathleen R. v. City of

Livermore (2001) 87 Cal.App.4th 684, a taxpayer sued after her son obtained

sexually explicit photographs through an Internet connection at a public library.

She sought injunctive relief on various theories of liability. (Id. at pp. 690-691.)

The Kathleen R. court held that the state law causes of action were barred by

section 230. (Kathleen R., at p. 692.) It cited Zeran for the rule that section




9 E.g., Blumenthal v. Drudge (D.D.C. 1998) 992 F.Supp. 44, 51; Ben Ezra,

Weinstein, and Co., Inc. v. America Online, Inc. (10th Cir. 2000) 206 F.3d 980,
986; Morrison v. America Online, Inc. (N.D.Ind. 2001) 153 F.Supp.2d 930, 933-
934; PatentWizard, Inc. v. Kinko’s, Inc. (D.S.D. 2001) 163 F.Supp.2d 1069, 1071;
Green v. America Online (3rd Cir. 2003) 318 F.3d 465, 470-471; Carafano v.
Metrosplash.com, Inc. (9th Cir. 2003) 339 F.3d 1119, 1123-1124; Doe One v.
Oliver (Conn.Super.Ct. 2000) 755 A.2d 1000, 1003-1004; Doe v. America Online,
Inc. (Fla. 2001) 783 So.2d 1010, 1013-1017; Schneider v. Amazon.com, Inc.
(Wn.App. 2001) 31 P.3d 37, 40-42; Barrett v. Fonorow (Ill.App.Ct. 2003) 799
N.E.2d 916, 923-925 [a suit against a Web site operator by Dr. Barrett, plaintiff in
this case]; Donato v. Moldow (N.J. Super.Ct.App.Div. 2005) 865 A.2d 711, 720-
727; Austin v. CrystalTech Web Hosting (Ariz.App. 2005) 125 P.3d 389, 392-394.
But

see Doe v. GTE Corp. (7th Cir. 2003) 347 F.3d 655, 659-660, in which

the court questioned Zeran’s rationale but ultimately did not reach the section 230
issue.

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230(c)(1) immunizes both “publisher[s]” and “distributor[s].” (Kathleen R., at p.

695, fn. 3.) It also agreed with the Zeran court’s analysis of congressional intent.

(Id. at p. 697.)

In

Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, the plaintiffs used

eBay’s on-line marketing services to purchase sports memorabilia. Claiming the

items bore forged autographs, they sued eBay for negligence, unfair trade

practices, and violation of Civil Code section 1739.7, which regulates the sale of

such collectibles. (Gentry, at p. 820.) The Gentry court ruled that section 230

immunized eBay from liability on all the plaintiffs’ claims. It noted the broad

scope given to section 230 immunity by the Zeran court and others, and reasoned

that the plaintiffs were trying to hold eBay responsible for disseminating

information provided by the individual sellers who used its service. (Gentry, at

pp. 828-831.) Regarding the allegation that eBay knew or should have known

about the sellers’ illegal conduct but failed to prevent it by withdrawing or altering

the fraudulent content, the Gentry court stated: “This is the classic kind of claim

that Zeran found to be preempted by section 230, . . . one that seeks to hold eBay

liable for its exercise of a publisher’s traditional editorial functions.” (Id. at p.

835.)

B. The Court of Appeal Analysis

Swimming against the jurisprudential tide, the Court of Appeal in this case

disputed the ruling in Zeran, contending it confers a more expansive immunity

than is necessary to preserve freedom of online speech, and would actually defeat

the goal of encouraging self-regulation. The Court of Appeal focussed on three

factors: (1) the Zeran court’s interpretation of the statutory term “publisher;” (2)

the legislative history of section 230; and (3) the practical implications of notice

liability in the Internet environment. We reject the Court of Appeal’s analysis on

each of these points.

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1.

The Meaning of “Publisher”

The Court of Appeal acknowledged that publication is an element of

defamation, and that “distributors” are sometimes referred to as “secondary

publishers.” (See, e.g., Dworkin v. Hustler Magazine, Inc. (D.C.Wyo. 1985) 611

F.Supp. 781, 785; Hart v. Bennet (Wis.Ct.App. 2003) 672 N.W.2d 306, 318, fn.

14; Prosser & Keeton, The Law of Torts, supra, § 113, at p. 803; Smolla, The Law

of Defamation (2d ed. 2005) § 4:92, p. 4-140.15.) However, the court pronounced

it “reasonable to assume” that Congress had in mind the different standards of

common law liability imposed on “primary publishers,” who have control over

content, and “distributors,” who do not. Thus, the omission of any reference to

“distributors” in section 230(c)(1) was arguably intentional.

The Court of Appeal noted that the goal of discouraging excessive self-

censorship by immunizing publishers is at odds with the rights of individuals to

recover for defamatory falsehood. It deemed the term “publisher” ambiguous,

because it might refer to primary publishers only or to both primary publishers and

distributors. According to the Court of Appeal, such a “legally uncertain word”

could not support the broad immunity the Zeran court derived from the statute. It

found nothing in the statutory findings and declarations to indicate that Congress

considered online speech in need of blanket protection. Indeed, it detected a

contrary intent in the terms of section 230(c)(2), which immunizes providers and

users against liability for “any action voluntarily taken in good faith to restrict

access to or availability of material that the provider or user considers to be . . .

objectionable, whether or not such material is constitutionally protected” or to

provide others with “the technical means to restrict access to [such] material.”

The Court of Appeal reasoned that section 230(c)(2) would be superfluous if all

“publishers” enjoyed absolute immunity under section 230(c)(1).

The Court of Appeal sought further support for limiting the scope of the

term “publisher” to primary publishers by comparing the immunity provisions of

the CDA with those of the Digital Millenium Copyright Act, enacted in 1998

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(DMCA; 17 U.S.C. § 512).10 The DMCA immunizes Internet service providers

from liability for copyright infringement if the provider is unaware of the

infringement and acts expeditiously to remove the copyrighted material upon

notice. It includes detailed notice requirements, and procedures for replacement of

the disputed material upon sufficient counter-notification. (17 U.S.C. § 512(c) &

(g).) Because Congress did not include such specific regulation of notice liability

in the CDA, the Court of Appeal decided it had failed to “speak directly” to the

issue, thus preserving common law distributor liability. (See United States v.

Texas, supra, 507 U.S. at p. 534.)

We conclude the Zeran court’s construction of the term “publisher” is

sound. The terms of section 230(c)(1) are broad and direct: “No 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.” Given that

“distributors” are also known as “secondary publishers,” there is little reason to

believe Congress felt it necessary to address them separately. There is even less

reason to suppose that Congress intended to immunize “publishers” but leave

“distributors” open to liability, when the responsibility of publishers for offensive

content is greater than that of mere distributors. The Court of Appeal failed to

respond to the Zeran court’s point that once online distributors are notified of

defamatory content, they are placed in a position traditionally occupied by

publishers, and must make an editorial decision on how to treat the posted

material. (Zeran, supra, 129 F.3d at p. 332.) This is a persuasive justification for

giving the term “publisher”an inclusive interpretation. (See, e.g., Gentry v. eBay,

Inc., supra, 99 Cal.App.4th at p. 835; Green v. America Online, supra, 318 F.3d at

p. 471; Donato v. Moldow, supra, 865 A.2d at pp. 725-726; Schneider v.

Amazon.com, Inc., supra, 31 P.3d at pp. 41-42.)




10 Public Law 105-304, Title II, section 202(a) (Oct. 28, 1998) 112 Statutes

at Large 2877.

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We are not convinced by the Court of Appeal’s reasoning that a broad

reading of section 230(c)(1) would make section 230(c)(2) unnecessary. These

provisions address different concerns. Section 230(c)(1) is concerned with

liability arising from information provided online. Section 230(c)(2) is directed at

actions taken by Internet service providers or users to restrict access to online

information.11 Liability for censoring content is not ordinarily associated with the

defendant’s status as “publisher” or “speaker.” Those terms, employed in section

230(c)(1), are drawn from the law of defamation. (See, e.g., Prosser & Keeton,

The Law of Torts, supra, § 113, at p. 803; Rest.2d Torts, § 568.) Section

230(c)(1) provides immunity from claims by those offended by an online

publication, while section 230(c)(2) protects against claims by those who might

object to the restriction of access to an online publication.

The Court of Appeal’s reference to the DMCA does not support its

conclusion that Congress’s use of the term “publisher” was insufficient to abrogate

“distributor” liability. To the contrary, the DMCA shows that Congress has

crafted a limited immunity in a closely related context, with specific provision for

notice liability. (17 U.S.C. § 512(c).) The fact that it did not do so in the CDA,

and has not amended section 230 to add a similar provision in the 10 years since it

was enacted, or in the eight years since the example of the DMCA has been in




11 Section 230(c)(2) provides: “No provider or user of an interactive

computer service shall be held liable on account of—
“(A) 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; or
“(B) any action taken to enable or make available to information content providers
or others the technical means to restrict access to material described in paragraph
[(A)].”

15

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existence, strongly supports the conclusion that Congress did not intend to permit

notice liability under the CDA.12

We note that it is far from clear how the distinction between traditional

print publishers and distributors would apply in the Internet environment, with its

many and various forms of discourse. (See Reno v. American Civil Liberties

Union, supra, 521 U.S. 844, 850-853.) As the high court noted, “[a]ny person or

organization with a computer connected to the Internet can ‘publish’ information.”

(Id. at p. 853.) Whenever such information is copied from another source, its

publication might also be described as a “distribution.” The distinction proposed

by the Court of Appeal, based on rules developed in the post-Gutenberg, pre-

cyberspace world, would foster disputes over which category the defendant should

occupy. The common law of defamation would provide little guidance.

In this case, for example, Rosenthal could claim that her active role in

selecting and posting material disparaging plaintiffs qualified her as a primary

publisher. Her participation in the dissemination of the Bolen article, particularly

considered in light of her other alleged verbal attacks on plaintiffs, arguably went

beyond mere distribution. (See Prosser & Keeton, The Law of Torts, supra,

§ 113, at p. 803; Smolla, The Law of Defamation, supra, § 4:92, p. 4-140.15;

Rest.2d Torts, § 568.) The Court of Appeal provided no analysis justifying its

conclusion that Rosenthal could be held liable as a “distributor,” noting only that

she alleged no facts preventing her from being so characterized. We need not

decide the question, but certainly the argument could be made that plaintiffs’

allegations cast Rosenthal in the role of a “publisher.”




12 One court has suggested that Congress might provide notice, “take-

down,” and “put-back” procedures similar to those in the DMCA as a way of
limiting the broad scope of section 230 immunity, which currently gives service
providers little incentive to remove defamatory postings. (Batzel v. Smith (9th Cir.
2003) 333 F.3d 1018, 1031-1032, fn. 19.) Congress has not responded.

16

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2.

The Legislative History

The Court of Appeal noted that section 230 was enacted along with other

CDA provisions that prohibited the knowing transmission of “obscene or

indecent” or “patently offensive” messages to persons under the age of 18.13 It

reasoned that immunizing Internet service providers and users from “primary

publisher” liability advanced a similar purpose by protecting those providers and

users who try but fail to identify and remove offensive material. However,

according to the Court of Appeal, immunization from “distributor” liability would

be inconsistent with this goal because it would protect providers and users who

make no effort to screen for offensive material, along with those who refuse to

take action once on notice.

The Court of Appeal claimed support for this view in the legislative history

of section 230, though it conceded that the history is “meager.” (See Sheridan,

Zeran v. AOL and the Effect of Section 230 of the Communications Decency Act

Upon Liability for Defamation on the Internet (1997) 61 Alb. L.Rev. 147, 168

(hereafter Sheridan).) The court recognized that section 230 was enacted to

remove the disincentives to self-regulation created by the Stratton Oakmont case,

in which a service provider was held liable as a primary publisher because it

actively screened and edited messages posted on its bulletin boards. (Stratton

Oakmont, supra, 1995 WL 323710, 23 Media L.Rep. 1794; see Zeran, supra, 129

F.3d at p. 331; fn. 7, ante.) However, the Court of Appeal considered an earlier

Internet defamation case to be equally important in ascertaining the purpose of

section 230.

In

Cubby, Inc. v. CompuServe, Inc. (S.D.N.Y. 1991) 776 F.Supp. 135, a

journalist claimed he was defamed by a competitor’s remarks posted on an

Internet forum provided by CompuServe. (Id. at pp. 137-138.) The court applied




13 Title 47 United States Code, section 223(a) & (d). These provisions

were held unconstitutional in Reno v. American Civil Liberties Union, supra, 521
U.S. at pp. 849, 858-860.

17

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the common law “distributor” standard of liability, concluding the forum was

essentially an electronic library over which CompuServe exercised little or no

editorial control. (Id. at pp. 139-140.) Because there was no evidence

CompuServe knew or had reason to know of the statements, the court granted it

summary judgment. (Id. at p. 141.)

The Court of Appeal noted that Cubby was distinguished in Stratton

Oakmont, and also in comments by the sponsors of section 230. As related in a

law review article relied on by the court, “Representative Cox, one of two

sponsors of the immunity provision, characterized the imposition of distributor

liability in Cubby as holding that CompuServe ‘was not the publisher or editor’ of

the material. He clearly used the term ‘publisher’ to exclude parties held to the

distributor liability standard applied to CompuServe in that case. 141 Cong. Rec.

H8469 (daily ed. Aug. 4, 1995) (statement of Rep. Cox). The provision’s sponsors

summarized both the Cubby and Stratton [Oakmont] decisions, and then

repeatedly discussed the need to overrule Stratton [Oakmont], without again

mentioning Cubby. See [141 Cong.Rec. H8469 (daily ed. Aug. 4, 1995)

(statements of Rep. Cox and Rep. Wyden]; see also 141 Cong.Rec. S8345 (daily

ed. June 14, 1995) (statements of Sen. Coats) (distinguishing between publisher

and distributor liability and noting that the [CDA] was not intended to hold

intermediaries to publisher liability).” (Freiwald, Comparative Institutional

Analysis in Cyberspace: The Case of Intermediary Liability for Defamation

(2001) 14 Harv. J.L. & Tech. 569, 632, fn. 259 (hereafter Freiwald).)

From these sources, the Court of Appeal discerned a congressional intent to

preserve “distributor” liability. It cited several academic commentators for the

view that immunizing Internet service providers from “distributor” liability would

actually frustrate the objective of self-regulation, because no liability would flow

from failing to screen for defamatory content. (McManus, Rethinking Defamation

Liability for Internet Service Providers (2001) 35 Suffolk U. L.Rev. 647, 668

(hereafter McManus); Patel, Immunizing Internet Service Providers From Third

18

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Party Internet Defamation Claims: How Far Should Courts Go? (2002) 55 Vand.

L.Rev. 647, 684; see also Sheridan, supra, 61 Alb. L.Rev. at pp. 169-170.)

The Court of Appeal and the commentators on which it relied read too

much into the legislative record. We note that the comments of Senator Coats,

summarized by Professor Freiwald as quoted above, pertained not to section 230

but to a separate provision of the CDA, codified at 47 United States Code section

223(f)(4). (141 Cong.Rec. S8328, S8345 (daily ed. June 14, 1995).) The

comments of Representative Cox, a sponsor of section 230, are pertinent but do

not indicate that distributors were meant to be excluded from statutory

protection.14




14 The relevant portions of Representative Cox’s comments are as follows:

“I will give you two quick examples: A Federal court in New York, in a case
involving CompuServe, one of our on-line service providers, held that
CompuServe would not be liable in a defamation case because it was not the
publisher or editor of the material. It just let everything come onto your computer
without, in any way, trying to screen it or control it.


“But another New York court, the New York Supreme Court, held that

Prodigy, CompuServe’s competitor, could be held liable in a $200 million
defamation case because someone had posted on one of their bulletin boards, a
financial bulletin board, some remarks that apparently were untrue about an
investment bank, that the investment bank would go out of business and was run
by crooks.


“Prodigy said, ‘No, no; just like CompuServe, we did not control or edit

that information, nor could we, frankly. We have over 60,000 of these messages
each day, we have over 2 million subscribers, and so you cannot proceed with this
kind of a case against us.’


“The court said, ‘No, no, no, no, you are different; you are different than

CompuServe because you are a family-friendly network. You advertise yourself
as such. You employ screening and blocking software that keeps obscenity off of
your network. You have people who are hired to exercise an emergency delete
function to keep that kind of material away from your subscribers. You don’t
permit nudity on your system. You have content guidelines. You, therefore, are
going to face higher, stric[t]er liability because you tried to exercise some control
over offensive material.’


“Mr. Chairman, that is backward. We want to encourage people like

Prodigy, like CompuServe, like America Online, like the new Microsoft network,
to do everything possible for us, the customer, to help us control, at the portals of

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Representative Cox said section 230 was intended to “encourage people

like . . . CompuServe . . . by . . . protect[ing] them from taking on liability such as

occurred in the [Stratton Oakmont] case in New York that they should not face for

helping us [] solve this problem.” (141 Cong. Rec. H8470 (daily ed. Aug. 4,

1995).) Thus, he meant that “distributors” like CompuServe would be protected

from rather than threatened with liability, to encourage responsible screening of

the content provided on their services. Under the Court of Appeal’s interpretation

of section 230, a “distributor” could be sued if it deleted material after receiving

notice of offensive content, but did not act quickly or thoroughly enough to suit

the offended party. Primary “publishers” who decide not to remove offensive

postings would be immunized, while “distributors” making the same decision

would be unprotected. It is unlikely that Congress intended such incongruous

results.

Both the terms of section 230(c)(1) and the comments of Representative

Cox reflect the intent to promote active screening by service providers of online

content provided by others. Congress implemented its intent not by maintaining

the common law distinction between “publishers” and “distributors,” but by

broadly shielding all providers from liability for “publishing” information


our computer, at the front door of our house, what comes in and what our children
see. This technology is very quickly becoming available, and in fact every one of
us will be able to tailor what we see to our own tastes. . . .


“Mr. Chairman, our amendment will do two basic things: First, it will

protect computer Good Samaritans, online service providers, anyone who provides
a front end to the Internet, let us say, who takes steps to screen indecency and
offensive material for their customers. It will protect them from taking on liability
such as occurred in the Prodigy case in New York that they should not face for
helping us and for helping us solve this problem. Second, it will establish as the
policy of the United States that we do not wish to have content regulation by the
Federal Government of what is on the Internet . . . .” (141 Cong. Rec. H8469-
H8470 (daily ed. Aug. 4, 1995).)


20

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received from third parties.15 Congress contemplated self-regulation, rather than

regulation compelled at the sword point of tort liability. It chose to protect even

the most active Internet publishers, those who take an aggressive role in

republishing third party content. It would be anomalous to hold less active

“distributors” liable upon notice. Thus, the immunity conferred by section 230

applies even when self-regulation is unsuccessful, or completely unattempted.

(Blumenthal v. Drudge, supra, 992 F.Supp. at p. 52; Schneider v. Amazon.com,

Inc., supra, 31 P.3d at p. 43; Donato v. Moldow, supra, 865 A.2d at p. 726.)

As Rosenthal and amici curiae point out, subsequent legislative history

contains explicit support for the Zeran court’s interpretation. In 2002, Congress

enacted the Dot Kids Implementation and Efficiency Act.16 A House committee

report notes that the purpose of this legislation was “to facilitate the creation of a

new, second-level Internet domain within the United States country code domain




15 The impracticality of imposing liability on any Internet service provider

for failing to exert control over third party content was touched upon by
Representative Goodlatte: “There is no way that any of those entities, like
Prodigy, can take the responsibility to edit out information that is going to be
coming in to them from all manner of sources onto their bulletin board. We are
talking about something that is far larger than our daily newspaper. We are
talking about something that is going to be thousands of pages of information
every day, and to have that imposition imposed on them is wrong. This will cure
that problem, and I urge the Members to support the amendment.” The
Congressman clearly had civil liability in mind. He subsequently noted:
“Currently . . . there is a tremendous disincentive for online service providers to
create family friendly services by detecting and removing objectionable content.
These providers face the risk of increased liability where they take reasonable
steps to police their systems. A New York judge recently sent the online services
the message to stop policing by ruling that Prodigy was subject to a $200 million
libel suit simply because it did exercise some control over profanity and indecent
material. [¶] The Cox-Wyden amendment removes the liability of providers such
as Prodigy who currently make a good faith effort to edit the smut from their
systems.” (141 Cong. Rec. H8471-H8472.)



16 Public Law 107-317, section 2 (Dec. 4, 2002) 116 Statutes at Large

2766, codified at 47 United States Code section 941.

21

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that will be a haven for material that promotes positive experiences for children

and families using the Internet.” (H.R. Rep. 107-449 (2002) p. 5) The legislation

includes a provision that the new registry it created, and related entities, “are

deemed to be interactive computer services for purposes of section 230(c) of the

Communications Act of 1934 (47 U.S.C. 230(c)).” (47 U.S.C. § 941(e)(1).) The

committee report explains that this provision was “intended to shield the ‘.kids.us’

registry, registrars, and parties who contract with the registry, from liability based

on self-policing efforts to intercept and take down material that is not ‘suitable for

minors’ or is ‘harmful to minors.’ The Committee notes that ISPs [Internet

service providers] have successfully defended many lawsuits using section 230(c).

The courts have correctly interpreted section 230(c), which was aimed at

protecting against liability for such claims as negligence[.] (See, e.g., Doe v.

America Online, 783 So.2d 1010 (Fla. 2001)) and defamation (Ben Ezra,

Weinstein, and Co. v. America Online, 206 F.3d 980 (2000); Zeran v. America

Online, 129 F.3d 327 (1997)). The Committee intends these interpretations of

section 230(c) to be equally applicable to those entities covered by H.R. 3833.”17

(H.R. Rep. 107-449, p. 13.)




17 Ordinarily, subsequent legislative history is given little weight in

statutory interpretation. (U.S. v. X-Citement Video, Inc. (1994) 513 U.S. 64, 77,
fn. 6.) Nevertheless, it is “sometimes considered relevant.” (Consumer Product
Safety Comm’n v. GTE Sylvania (1980) 447 U.S. 102, 118, fn. 13; see also, e.g.,
Heckler v. Turner (1985) 470 U.S. 184, 209.) In this unusual case we deem the
Committee Report instructive. It pertains to a provision expressly incorporating
section 230(c), and does not opine directly on the intent of an earlier Congress, but
on the interpretation uniformly given to the statute by intervening court decisions.
The Report reflects the Committee’s intent that the existing statutory construction
be maintained in a new legislative context. We note that the membership of the
2002 House Energy and Commerce Committee, which produced the Report,
included Representative Cox, the cosponsor of section 230. (Cong. Directory,
107th Congress (2001-2002) p. 403.)

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3.

Practical Implications of Notice Liability

The

Zeran court identified three deleterious effects that would flow from

reading section 230 to permit liability upon notice. First, service providers who

received notification of a defamatory message would be subject to liability only

for maintaining the message, not for removing it. This fact, together with the

burdens involved in evaluating the defamatory character of a great number of

protested messages, would provide a natural incentive to simply remove messages

upon notification, chilling the freedom of Internet speech. Second, notice-based

liability would deter service providers from actively screening the content of

material posted on its service, because discovering potentially defamatory material

would only increase the provider’s liability. Finally, notice-based liability would

give third parties a cost-free means of manufacturing claims, imposing on

providers “ceaseless choices of suppressing controversial speech or sustaining

prohibitive liability.” (Zeran, supra, 129 F.3d at p. 333.)

The Court of Appeal expressed doubt that a statute encouraging service

providers to restrict access to offensive material was intended to promote free

speech over the Internet. It also questioned the “speculative conclusion” that

notice-based liability would significantly chill online speech, though it refrained

from taking a definitive position on this point. Noting the absence of any evidence

in the record regarding the burdens such liability would create, the Court of

Appeal referred to the views of commentators critical of Zeran as a way to explore

the contours of the debate without attempting its resolution. (See Intel Corp. v.

Hamidi (2003) 30 Cal.4th 1342, 1363.)

Some critics have suggested that market forces would restrain service

providers from removing postings without investigation, because any provider

engaging in that practice would acquire a bad reputation in the Internet

community. (Sheridan, supra, 61 Alb. L.Rev. at pp. 176; Freiwald, supra, 14

Harv. J.L. & Tech. at p. 622; Butler, Plotting the Return of an Ancient Tort to

Cyberspace: Towards a New Federal Standard of Responsibility for Defamation

23

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for Internet Service Providers (1999-2000) 6 Mich. Telecomm. & Tech.L.Rev.

247, 264.) It has also been argued that the difficulty of prevailing on a defamation

claim would attenuate the burden of notice-based liability on providers.

Moreover, because “distributor” liability would only arise upon notice, and would

not require service providers to review postings in advance, defamation damages

would be limited to those accruing after the provider became aware of the

defamatory character of a message. (Sheridan, supra, 61 Alb. L.Rev. at p. 173.)

Citing

McManus,

supra, 35 Suffolk U. L.Rev. at page 661, the Court of

Appeal asserted that Zeran has been criticized for failing to account for the many

different ways defamation may be transmitted over the Internet, and the different

levels of control an Internet intermediary may exercise over the content of

messages. Most fundamentally, however, the Court of Appeal noted that critics

have condemned Zeran for giving insufficient consideration to the interests of

defamation victims. American courts have striven to develop rules that balance

the legitimate protections of defamation liability with the constitutional right to

free speech. The Court of Appeal resisted the notion that a blanket immunity

derived from section 230(c)(1) should disturb that balance. It concluded that

preserving “distributor” liability was consistent with the immunity provisions of

section 230.

The Court of Appeal gave insufficient consideration to the burden its rule

would impose on Internet speech. It is inaccurate to suggest that Congress was

indifferent to free speech protection when it enacted section 230. The statute

includes findings welcoming the “extraordinary advance in the availability of

educational and informational resources” on the Internet, and applauding the

Internet as a “forum for a true diversity of political discourse” that offers “myriad

avenues for intellectual activity” and provides “a variety of political, educational,

cultural, and entertainment services.” (§ 230(a)(1), (3), & (5).) Congress sought

to “promote the continued development of the Internet and other interactive

computer services.” (§ 230(b)(1).) The provisions of section 230(c)(1),

24

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conferring broad immunity on Internet intermediaries, are themselves a strong

demonstration of legislative commitment to the value of maintaining a free market

for online expression.

The fact that Congress also meant to restrict access to certain Internet

content does not compel a contrary conclusion. As the court aptly observed in

Batzel v. Smith, supra, 333 F.3d 1018: “[T]here is an apparent tension between

Congress’s goals of promoting free speech while at the same time giving parents

the tools to limit the material their children can access over the Internet. As a

result of this apparent tension, some commentators have suggested that the Fourth

Circuit in Zeran imposed . . . First Amendment goals on legislation that was

actually adopted for the speech-restrictive purpose of controlling the dissemination

of content over the Internet. [Citation.] These critics fail to recognize that laws

often have more than one goal in mind, and that it is not uncommon for these

purposes to look in opposite directions. The need to balance competing values is a

primary impetus for enacting legislation. Tension within statutes is often not a

defect but an indication that the legislature was doing its job.” (Id. at p. 1028; see

also Carafano v. Metrosplash.com, Inc., supra, 339 F.3d at pp. 1122-1123.)

We agree with the Zeran court, and others considering the question, that

subjecting Internet service providers and users to defamation liability would tend

to chill online speech. (See Carafano v. Metrosplash.com, Inc., supra, 339 F.3d at

pp. 1123-1124; Batzel v. Smith, supra, 333 F.3d at pp. 1027-1028; Noah v. AOL

Time Warner, Inc. (E.D. Va. 2003) 261 F.Supp.2d 532, 538; Blumenthal v.

Drudge, supra, 992 F.Supp. at p. 52; Donato v. Moldow, supra, 865 A.2d at p.

726.) Certainly, that conclusion is no more speculative than the surmise that

market forces might deter providers from removing postings without investigating

their defamatory character.

We reject the argument that the difficulty of prevailing on a defamation

claim mitigates the deterrent effect of potential liability. Defamation law is

complex, requiring consideration of multiple factors. These include whether the

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statement at issue is true or false, factual or figurative, privileged or unpriviliged,

whether the matter is of public or private concern, and whether the plaintiff is a

public or private figure. (See 5 Witkin, Summary of Cal. Law (9th ed. 1988)

Torts, §§ 529, 556 et seq., pp. 782, 814 et seq.) Any investigation of a potentially

defamatory Internet posting is thus a daunting and expensive challenge. For that

reason, we have observed that even when a defamation claim is “clearly

nonmeritorious,” the threat of liability “ultimately chills the free exercise of

expression.” (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 268;

see also Time, Inc. v. Hill (1967) 385 U.S. 374, 389.)

Nor are we convinced by the observation that a “distributor” faces no

liability without notice. Distributors are liable not merely upon receiving notice

from a third party, but also if they independently “knew or had reason to know” of

the defamatory statement. (Osmond v. EWAP, Inc., supra, 153 Cal.App.3d 842,

854; Prosser & Keeton, The Law of Torts, supra, § 113, pp. 811; Rest.2d Torts,

§ 581, subd. (1).) Thus, as the Zeran court pointed out, this aspect of distributor

liability would discourage active monitoring of Internet postings. (Zeran, supra,

129 F.3d at p. 333.) It could also motivate providers to insulate themselves from

receiving complaints. Such responses would frustrate the goal of self-regulation.

The third practical implication noted in Zeran is no less compelling, and

went unaddressed by the Court of Appeal. Notice-based liability for service

providers would allow complaining parties to impose substantial burdens on the

freedom of Internet speech by lodging complaints whenever they were displeased

by an online posting. (Zeran, supra, 129 F.3d at p. 333.) The volume and range

of Internet communications make the “heckler’s veto” a real threat under the Court

of Appeal’s holding. The United States Supreme Court has cautioned against

reading the CDA to confer such a broad power of censorship on those offended by

Internet speech. (Reno v. American Civil Liberties Union, supra, 521 U.S. at p.

880.)

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The great variety of Internet publications, and the different levels of content

control that may be exercised by service providers and users, do not undermine the

conclusion that Congress intended to create a blanket immunity from tort liability

for online republication of third party content. Requiring providers, users, and

courts to account for the nuances of common law defamation, and all the various

ways they might play out in the Internet environment, is a Herculean assignment

that we are reluctant to impose. We conclude the Zeran court accurately

diagnosed the problems that would attend notice-based liability for service

providers.

Finally, we cannot ignore another practical implication raised by Rosenthal

and amicus curiae eBay Inc. Adopting a rule of liability under section 230 that

diverges from the rule announced in Zeran and followed in all other jurisdictions

would be an open invitation to forum shopping by defamation plaintiffs. (Cf.

Webb v. Superior Court (1990) 225 Cal.App.3d 990, 1000.) This consideration

provides strong justification for following the approach we endorsed in Etcheverry

v. Tri-Ag Service, Inc. (2000) 22 Cal.4th 316, 320-321: “While we are not bound

by decisions of the lower federal courts, even on federal questions, they are

persuasive and entitled to great weight. [Citation.] Where lower federal

precedents are divided or lacking, state courts must necessarily make an

independent determination of federal law [citation], but where the decisions of the

lower federal courts on a federal question are ‘both numerous and consistent,’ we

should hesitate to reject their authority [citation].”18




18 In Bates v. Dow Agrosciences LLC (2005) 544 U.S. 431, ___ [125 S.Ct.

1788, 1794, 1803], the United States Supreme Court disagreed with the pre-
emption rule we adopted in Etcheverry, and followed instead what had been the
minority view. However, our general observations on the persuasive effect of a
consensus among the lower federal courts on a question of federal law were
unaffected by the ruling in Bates.

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C. “User” Liability

The “distributor” liability theory endorsed by the Court of Appeal

recognizes no distinction between Internet service providers and individuals.

Individual Internet “users” like Rosenthal, however, are situated differently from

institutional service providers with regard to some of the principal policy

considerations discussed by the Zeran court and reflected in the Congressional

Record. In particular, individuals do not face the massive volume of third-party

postings that providers encounter. Self-regulation is a far less challenging

enterprise for them. Furthermore, service providers, no matter how active or

passive a role they take in screening the content posted by users of their services,

typically bear less responsibility for that content than do the users. Users are more

likely than service providers to actively engage in malicious propagation of

defamatory or other offensive material. These considerations bring into question

the scope of the term “user” in section 230, and whether it matters if a user is

engaged in active or passive conduct for purposes of the statutory immunity.

“User” is not defined in the statute, and the limited legislative record does

not indicate why Congress included users as well as service providers under the

umbrella of immunity granted by section 230(c)(1). The standard rules of

statutory construction, however, yield an unambiguous result. We must begin

with the language employed by Congress and the assumption that its ordinary

meaning expresses the legislative purpose. (Engine Mfrs. Ass’n v. South Coast Air

Quality Management Dist. (2004) 541 U.S. 246, 252; see also Hassan v. Mercy

American River Hospital (2003) 31 Cal.4th 709, 715.) “User” plainly refers to

someone who uses something, and the statutory context makes it clear that

Congress simply meant someone who uses an interactive computer service.

Section 230(c)(1) refers directly to the “user of an interactive computer

service.” Section 230(f)(2) defines “interactive computer service” as “any

information service, system, or access software provider that provides or enables

computer access by multiple users to a computer server, including specifically a

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service or system that provides access to the Internet . . . .” Section 230(a)(2)

notes that such services “offer users a great degree of control over the information

that they receive,” and section 230(b)(3) expresses Congress’s intent “to

encourage the development of technologies which maximize user control over

what information is received by individuals, families, and schools who use the

Internet and other interactive computer services.” Thus, Congress consistently

referred to “users” of interactive computer services, specifically including

“individuals” in section 230(b)(3).

There is no reason to suppose that Congress attached a different meaning to

the term “user” in section 230(c)(1). (See Gustafson v. Alloyd Co., Inc. (1995)
513 U.S. 561, 570; Hassan v. Mercy American River Hospital, supra, 31 Cal.4th at

p. 716.) Rosenthal used the Internet to gain access to newsgroups where she

posted Bolen’s article about Polevoy. She was therefore a “user” under the CDA,

as the parties conceded below. Nor is there any basis for concluding that Congress

intended to treat service providers and users differently when it declared that “[n]o

provider or user of an interactive computer service shall be treated as [a] publisher

or speaker . . . .” (§ 230(c)(1).) We cannot construe the statute so as to render the

term “user” inoperative. (Duncan v. Walker (2001) 533 U.S. 167, 174; Hassan v.

Mercy American River Hospital, supra, 31 Cal.4th at pp. 715-716.) We note that

in cases where an individual’s role as operator of a Web site raised a question as to

whether he was a “service provider” or a “user,” the courts found it unnecessary to

resolve the issue because the statute confers immunity on both. (Batzel v. Smith,

supra, 333 F.3d at p. 1030; Donato v. Moldow, supra, 865 A.2d at p. 719; see also

Barrett v. Fonorow, supra, 799 N.E.2d at pp. 919, 922.)

Polevoy urges us to distinguish between “active” and “passive” Internet

use, and to restrict the statutory term “user” to those who engage in passive use.

He notes that subdivisions (a)(2) and (b)(3) of section 230 refer to information

“received” by users. He also observes that the caption of subdivision (c) is

“Protection for ‘good samaritan’ blocking and screening of offensive material.”

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From these premises, Polevoy reasons that the term “user” must be construed to

refer only to those who receive offensive information, and those who screen and

remove such information from an Internet site. He argues that those who actively

post or republish information on the Internet are “information content providers”

unprotected by the statutory immunity. “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 through the Internet or any other interactive

computer service. . . .” (§ 230(f)(3).)

Polevoy’s view fails to account for the statutory provision at the center of

our inquiry: the prohibition in section 230(c)(1) against treating any “user” as “the

publisher or speaker of any information provided by another information content

provider.” A user who merely receives information on a computer without

making it available to anyone else would be neither a “publisher” nor a “speaker.”

Congress obviously had a broader meaning in mind. Nor is it clear how a user

who removes a posting may be deemed “passive” while one who merely allows a

posting to remain online is “active.” Furthermore, Congress plainly did not intend

to deprive all “information content providers” of immunity, because the reference

to “another” such provider in section 230(c)(1) presumes that the immunized

publisher or speaker is also an information content provider. (See Carafano v.

Metrosplash.com, Inc., supra, 339 F.3d at p. 1125; Donato v. Moldow, supra, 865

A.2d at p. 720.)19

19

At some point, active involvement in the creation of a defamatory

Internet posting would expose a defendant to liability as an original source.
Because Rosenthal made no changes in the article she republished on the
newsgroups, we need not consider when that line is crossed. We note, however,
that many courts have reasoned that participation going no further than the
traditional editorial functions of a publisher cannot deprive a defendant of section
230 immunity. (See, e.g., Batzel v. Smith, supra, 333 F.3d at pp. 1031; Green v.
America Online, supra, 318 F.3d at p. 471; Ben Ezra, Weinstein, and Co., Inc. v.
America Online, Inc., supra, 206 F.3d at pp. 985-986; Donato v. Moldow, supra,

30

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The distinction between “active” and “passive” use was explored in Batzel

v. Smith, supra, 333 F.3d 1018. Smith sent an e-mail to the operator of a Web site

devoted to museum security and stolen art, accusing Batzel of possessing paintings

that may have been stolen by the Nazis during World War II. The operator posted

the message on the Web site, with some changes, and distributed it to the

subscribers of his e-mail newsletter. Batzel sued Smith and the operator for

defamation. The trial court denied the operator’s motion to strike the complaint

under the California anti-SLAPP statute (Code Civ. Proc., § 425.16). (Batzel, at

pp. 1020-1023.)

The court of appeals vacated the order denying the motion, remanded, and

directed the trial court to determine whether the operator should reasonably have

known Smith intended his e-mail to be published on the Internet. If not, the court

reasoned the message was not “provided” by another “information content

provider” under section 230, and the operator would not be immune from

liability.20 (Batzel v. Smith, supra, 333 F.3d at p. 1035.) The relevant discussion

for our purposes arose from the dissent expressed in a concurring and dissenting

opinion.

The

Batzel dissent criticized the majority for adopting a rule that provides

Internet intermediaries with immunity to spread information intended for

republication, “licens[ing] professional rumor-mongers and gossip-hounds to

spread false and hurtful information with impunity.” (Batzel v. Smith, supra, at p.

1038 (conc. & dis. opn. of Gould, J.).) The dissent proposed a rule based on the

defendant’s actions instead of the author’s intent. It would “hold that the CDA

immunizes a defendant only when the defendant took no active role in selecting

the questionable information for publication. If the defendant took an active role


865 A.2d at pp. 720-726 [reviewing cases]; Schneider v. Amazon.com, Inc., supra,
31 P.3d at pp. 42-43.)

20

Polevoy does not argue that Rosenthal might be liable under this theory.

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in selecting information for publication, the information is no longer ‘information

provided by another’ within the meaning of § 230.” (Ibid.)

The dissent reasoned that information actively selected for republication

has been “transformed . . . bolstered, [and] strengthened to do more harm if it is

wrongful.” (Batzel v. Smith, supra, 333 F.3d at p. 1038 (conc. & dis. opn. of

Gould, J.).) It acknowledged that service providers cannot be expected to screen

the millions of messages sent over their networks for offensive content. However,

it argued that a person who does actively screen communications to select some

for republication is able to detect defamatory content and should not be

immunized. The dissent would grant immunity to bulletin board moderators and

the like if they did not actively select among messages for publication, but would

expose them to liability if they made a conscious decision to disseminate a

particular defamatory communication. Congress’s goal of encouraging self-

regulation would be furthered, according to the dissent, because those who remove

all or part of an offensive message would be immune. The dissenting justice did

not believe Congress intended to immunize those who select defamatory

information for distribution on the Internet. (Id. at pp. 1039-1040.) 21

The

Batzel majority responded that no logical distinction can be drawn

between a defendant who actively selects information for publication and one who

screens submitted material, removing offensive content. “The scope of the

immunity cannot turn on whether the publisher approaches the selection process as

21

A more elaborate reconstruction of the statute, proceeding from the same

premise that Congress did not intend to immunize Internet users who maliciously
republish libelous content, may be found in Jenal, When Is a User Not a “User”?
Finding the Proper Role for Republication Liability on the Internet (2004) 24
Loy.L.A. Ent. L.Rev. 453. The author posits four categories of “users,” Readers,
Posters, Moderators, and Administrators, and would deprive Posters of immunity.
(Id. at pp. 477-480.) No court has attempted such an adventurous reading of
section 230. “The provision has received a narrow, textual construction, not one
that has welcomed creative theories or exhibited judicial creativity.” (Donato v.
Moldow, supra, 865 A.2d at p. 725.)

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one of inclusion or removal, as the difference is one of method or degree, not

substance.” (Batzel v. Smith, supra, 333 F.3d at p. 1032.) We agree with this

reasoning. Furthermore, we reject the dissent’s view that actively selected and

republished information is no longer “information provided by another

information content provider” under section 230(c)(1). All republications involve

a “transformation” in some sense. A user who actively selects and posts material

based on its content fits well within the traditional role of “publisher.” Congress

has exempted that role from liability.

As Rosenthal points out, the congressional purpose of fostering free speech

on the Internet supports the extension of section 230 immunity to active individual

“users.” It is they who provide much of the “diversity of political discourse,” the

pursuit of “opportunities for cultural development,” and the exploration of

“myriad avenues for intellectual activity” that the statute was meant to protect.

(§ 230(a)(3).) The approach taken by the Batzel dissent would tend to chill the

free exercise of Internet expression, and could frustrate the goal of providing an

incentive for self-regulation. A user who removed some offensive content might

face liability for “actively selecting” the remaining material. Users in this

position, no less than the service providers discussed by the Zeran court, would be

motivated to delete marginally offensive material, restricting the scope of online

discussion. Some users, at least those like Rosenthal who engage in high-volume

Internet posting, might be discouraged from screening third party content.

Although individual users may face the threat of liability less frequently than

institutional service providers, their lack of comparable financial and legal

resources makes that threat no less intimidating.

We conclude there is no basis for deriving a special meaning for the term

“user” in section 230(c)(1), or any operative distinction between “active” and

“passive” Internet use. By declaring that no “user” may be treated as a

“publisher” of third party content, Congress has comprehensively immunized

republication by individual Internet users.

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D. Conclusion

We share the concerns of those who have expressed reservations about the

Zeran court’s broad interpretation of section 230 immunity. The prospect of

blanket immunity for those who intentionally redistribute defamatory statements

on the Internet has disturbing implications. Nevertheless, by its terms section 230

exempts Internet intermediaries from defamation liability for republication. The

statutory immunity serves to protect online freedom of expression and to

encourage self-regulation, as Congress intended. Section 230 has been interpreted

literally. It does not permit Internet service providers or users to be sued as

“distributors,” nor does it expose “active users” to liability.

Plaintiffs are free under section 230 to pursue the originator of a

defamatory Internet publication. Any further expansion of liability must await

Congressional action.

III. DISPOSITION

The judgment of the Court of Appeal is reversed.

CORRIGAN, J.





WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.

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CONCURRING OPINION BY MORENO, J.




I concur in the majority opinion. Although there may be a considerable gap

between the specific wrongs Congress was intending to right in enacting the

immunity at issue here and the broad statutory language of that immunity, that gap

is ultimately for Congress, rather than the courts, to bridge. I write separately to

express the view that publishers that conspire with original content providers to

defame would not be covered by the immunity provided by title 47 United States

Code section 230(c)(1) and (e)(3) (hereafter section 230). I further explain why

there is no prima facie showing of conspiracy in the present case.

Section 230(c)(1) states: “No 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.” Section 230(e)(3) states in part: “No cause

of action may be brought and no liability may be imposed under any State or local

law that is inconsistent with this section.” The majority correctly concludes that

this immunity statute does not distinguish between publishers and distributors or

between active and passive users. But in my view, this immunity would not apply

if the “user” is in a conspiracy with the “information content provider” providing

the information.

My interpretation is based first on the language of the statute. Section

230(c)(1) applies only to information provided by “another content provider.”

(Italics added.) A fair reading of this language suggests that the statute was

1

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contemplating an authentic transfer of information between two independent

parties. But this transfer does not really occur in a conspiracy to defame, nor are

the parties themselves authentically independent. In a conspiracy “ ‘ “ ‘[T]here

must be a preconceived plan and unity of design and purpose, for the common

design is of the essence of the conspiracy.’ ” ’ ” (Fibreboard Corp. v. Hartford

Accident & Indemnity Co. (1993) 16 Cal.App.4th 492, 510, italics omitted.)

When, for example, two parties conspire to defame someone, agreeing that one

party will play the role of “user” and the other, judgment proof, party will play the

role of original “content provider,” then the transfer of information that occurs

between the two is a sham, a mere vehicle for the defamation. I do not believe the

statutory immunity is intended to apply in such circumstances.

My conclusion is also supported by the legislative history. As the majority

states, quoting the seminal case of Zeran v. America Online, Inc. (4th Cir. 1997)
129 F.3d 327: “the Zeran court reasoned that Congress viewed ‘[t]he imposition of

tort liability on service providers for the communications of others’ as ‘simply

another form of intrusive government regulation of speech.’ (Zeran, supra, 129

F.3d at p. 330.) While original posters of defamatory speech do not escape

accountability, Congress ‘made a policy choice . . . not to deter harmful online

speech [by] imposing tort liability on companies that serve as intermediaries for

other parties’ potentially injurious messages.’ (Id. at pp. 330-331.) . . . [¶] The

court noted that another important purpose of section 230 was ‘to encourage

service providers to self-regulate the dissemination of offensive material over their

services.’ (Zeran, supra, 129 F.3d at p. 331.) . . . ‘Fearing that the specter of

liability would . . . deter service providers from blocking and screening offensive

material, Congress enacted § 230’s broad immunity,’ which forbids the imposition

of publisher liability on a service provider for the exercise of its editorial and self-

2

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regulatory functions.’ (Zeran, supra, 129 F.3d at p. 331.)” (Maj. opn., ante, at pp.

7-8.)

Unlike the Internet service provider, or even the typical user of an

interactive computer service, one engaged in a tortious conspiracy with the

original information content provider is hardly one of the neutral “intermediaries”

that Congress intended to absolve of liability. Imposing liability on such

conspirators would not cause service providers to curtail the robust Internet

communication they facilitate nor inhibit them from engaging in self-regulation of

offensive material. Rather, imposition of liability on those who conspire to

defame on the Internet supports Congress’s intent to impose liability on “original

posters of defamatory speech” (maj. opn., ante, at p. 7), discouraging collusive

arrangements that are designed to maximize the original poster’s impact and/or

minimize his or her liability.

The question then is whether there is a sufficient showing of conspiracy to

defame in this case. In order to defeat a motion to strike made pursuant to the

anti-SLAPP (strategic lawsuit against public participation) statute, when it has

been determined that the cause of action against the defendants arises from acts in

furtherance of the exercise of free speech or other protected activity under Code of

Civil Procedure section 425.16, “ ‘the plaintiff “must demonstrate that the

complaint is both legally sufficient and supported by a sufficient prima facie

showing of facts to sustain a favorable judgment if the evidence submitted by the

plaintiff is credited.” ’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.)

Plaintiffs alleged in their complaint that Rosenthal, Tim Bolen, and other

defendants conspired to defame them. Because the trial court concluded that the

only potentially defamatory statement was made against Dr. Timothy Polevoy, and

because it is uncontroverted that Bolen was the originator of that statement,

3

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plaintiffs can only prevail if they make a prima facie showing that Rosenthal and

Bolen conspired to defame Dr. Polevoy.

I conclude that plaintiffs have failed to make that showing. The

uncontroverted evidence is that Rosenthal did not know of Dr. Polevoy until she

read Bolen’s e-mail containing the alleged defamatory statement that Polevoy

stalked Canadian radio producer Christine McPhee. Rosenthal called McPhee,

who confirmed Bolen’s statement. Her republication of the defamation occurred

after that call.

It is true that Rosenthal and Bolen knew each other before the alleged

defamatory e-mail was posted and reposted and that they shared some similar

views about alternative medicine. It also may well be true that Rosenthal’s

investigation of Dr. Polevoy’s incident with McPhee fell considerably short of the

type of investigation a reasonable person would undertake before republishing

potentially defamatory material, inasmuch as she did not contact the appropriate

law enforcement authorities to corroborate McPhee’s story. But these facts are not

sufficient to establish a prima facie case of conspiracy to defame Dr. Polevoy, i.e.,

a preconceived plan and unity of design and purpose on the part of Rosenthal and

Bolen to defame.1

It is a closer question whether plaintiffs could have shown a prima facie

case of conspiracy by Bolen and Rosenthal against Dr. Stephen Barrett, since

Bolen and Rosenthal appeared to have shared a history of hostility toward Dr.


1

Moreover, even assuming plaintiffs are correct that the trial court wrongly

denied them the ability to depose Rosenthal, Bolen and McPhee, as the Court of
Appeal concluded, their stated reason for taking such depositions was to inquire
into whether a defendants’ defamatory statements were made with reckless
disregard for the truth. Even if a deposition established such reckless disregard on
Rosenthal’s part, this would not show a preexisting conspiracy to defame Dr.
Polevoy, nor negate the fact that Rosenthal was unacquainted with him before
receiving the alleged defamatory e-mail.

4

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Barrett. As the lower courts correctly concluded, however, none of the hostile

comments against Dr. Barrett alleged in the complaint are defamatory.

I therefore conclude the majority is correct in reversing the judgment of the

Court of Appeal.

MORENO, J.

5

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Barrett v. Rosenthal
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 114 Cal.App.4th 1379
Rehearing Granted

__________________________________________________________________________________

Opinion No. S122953
Date Filed: November 20, 2006
__________________________________________________________________________________

Court: Superior
County: Alameda
Judge: James A. Richman
__________________________________________________________________________________

Attorneys for Appellant:

Law Offices of Christopher E. Grell, Christopher E. Grell, Richard R. Rescho and Ian P. Dillon for
Plaintiffs and Appellants.
__________________________________________________________________________________

Attorneys for Respondent:

Mark Goldowitz, Jesper Rasmussen; Piper Rudnick, Roger Myers, Lisa Sitkin and Katherine Keating for
Defendant and Respondent.

Lee Tien and Kurt Opsahl for Electronic Frontier Foundation as Amicus Curiae on behalf of Defendant and
Respondent.

Ann Brick for American Civil Liberties Union Foundation of Northern California as Amicus Curiae on
behalf of Defendant and Respondent.

Cooley Godward, Michael G. Rhodes, Lori R.E. Ploeger, and Laura C. Pirri for eBay Inc. as Amicus
Curiae on behalf of Defendant and Respondent.

Wilmer Cutler Pickering Hale and Dorr, Patrick J. Carome, Samir Jain, and C. Colin Rushing for
Amazon.com, Inc., America Online, Inc., eBay Inc., Google Inc., Microsoft Corporation, Yahoo! Inc.,
ABC, Inc., Ask Jeeves, Inc., Cable News Network LP, LLLP, Compuserve Interactive Services, Inc.,
Earthlink, Inc., ESPN, Inc., Netscape Communications Corporation, SBC Internet Services, Time Warner
Cable Inc., The Washington Post Company, Association for Competitive Technology, California
Newspaper Publishers Association, Information Technology Association of America, Internet Alliance,
Internet Commerce Coalition, National Cable & Telecommunications Association, Netchoice, Netcoalition
Newspaper Association of America, Online News Association, Online Publishers Association, TechNet
and United States Internet Service Provider Association as Amici Curiae on behalf of Defendant and
Respondent.

Deidre K. Mulligan for Law Professors with Expertise in Internet Law as Amicus Curiae on behalf of
Defendant and Respondent.

---

Counsel who argued in Supreme Court (not intended for publication with opinion):

Christopher E. Grell
Law Offices of Christopher E. Grell
The Broadlake Plaza
360 22nd Street, Suite 320
Oakland, CA 94612
(510) 832-2980

Mark Goldowitz
2903 Sacramento Street
Berkeley, CA 94702
(510) 486-9123

Ann Brick
American Civil Liberties Union Foundation of Northern California
39 Drum Street
San Francisco, CA 94111
(415) 621-2493

---

Opinion Information

Date:	Citation:	Docket Number:
Mon, 11/20/2006	40 Cal. 4th 33, 146 P.3d 510, 51 Cal. Rptr. 3d 55	S122953

Opinion Authors
Opinion	Justice Carol A. Corrigan
Concur	Justice Carlos R. Moreno

Disposition
Nov 20 2006	Opinion: Reversed

Dockets
Mar 1 2004	Petition for review filed   by counsel for petnr. (Ilena Rosenthal)
Mar 1 2004	Record requested
Mar 11 2004	Request for depublication (petition for review pending)   Wilmer Cutler Pickering LLP, on behalf of non-party requesters [Amazon.com, Inc.; American Online, Inc. (AOL"); eBay, Inc.; Google, Inc.; Yahoo! Inc.; the Internet Commerce Coaition; and the United States Internet Service Providers Association
Mar 19 2004	Answer to petition for review filed   by counsel for plaintiffs and appellants
Mar 22 2004	Note:   Message left for counsel for submit original answer to petition for review. 13 copies of the Answer to petition for review was received on Friday, 3/19/2004
Mar 22 2004	Received Court of Appeal record   file jacket/briefs/transcripts/appendixes/one box/numerous loose papers
Mar 23 2004	Received additional record   briefs/appendices
Apr 2 2004	Received:   Appellants' errata to answer to petition for review
Apr 14 2004	Petition for review granted (civil case)   In addition to the issues set forth in the petition for review, the court requests the parties to include briefing on the following questions: (1) What is the meaning of the term "user" under section 230 of the Communications Decency Act (47 U.S.C. section 230)? (2) For purposes of the issue presented by this case, does it matter whether a user engaged in active passive conduct? Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown and Moreno, JJ.
Apr 14 2004	Note:   Letters sent to counsel enclosing a copy of the grant order and the certification of interested entities and persons form
Apr 16 2004	Received Court of Appeal record   Original briefs
Apr 30 2004	Certification of interested entities or persons filed   for resp Ilena Rosenthal
May 5 2004	Request for extension of time filed   by resp to file the opening brief on the merits, to June 14
May 6 2004	Certification of interested entities or persons filed   By counsel for appellant.
May 11 2004	Extension of time granted   to 6-14-04 for resp Rosenthal to file the opening brief on the merits. No further extensions of time will be granted.
Jun 4 2004	Received:   Notice of Change of Firm Name to: Wilmer Cutler Pickering Hale and Dorr LLP. [Counsel for Amazon.com, Inc., America Online, Inc. ("AOL"), eBay, Inc., Google Inc., Yahoo! Inc., the Internet Commerce Coalition and the United States Internet Service Providers Association]. Lawyers' email addresses now use: "@wilmerhale.com"
Jun 14 2004	Opening brief on the merits filed   Respondent's
Jun 22 2004	Filed:   Respondent's Request for Order Directing Issuance of Partial Remititur
Jun 25 2004	Order filed   Respondent's request for order directing issuance of partial remittitur is hereby DENIED.
Jul 12 2004	Request for extension of time filed   by appellants for a 60-day e.o.t. to and includng 9/12/2004 to file their answer brief/merits.
Jul 15 2004	Extension of time granted   On application of appellants and good cause appearing, it is ordered that the time to serve and file appellants' answer brief on the merits is extended to and including August 13, 2004.
Aug 10 2004	Request for extension of time filed   by appellants for an e.o.t. to and including 9-13-2004.
Aug 13 2004	Extension of time granted   On application of appellants and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including September 13, 2004. No further extensions of time will be granted.
Aug 16 2004	Received:   Letter from Loyola of Los Angeles Entertainment Law Review (non-party)
Sep 13 2004	Answer brief on the merits filed   by counsel for aplts
Sep 22 2004	Request for extension of time filed   Respondent ( Rosenthal) to file the reply brief on the merits. Asking to Nov. 3, 2004.
Sep 28 2004	Extension of time granted   to 10-25-04 for resp to file the reply brief on the merits. No further extensions will be granted.
Oct 25 2004	Reply brief filed (case fully briefed)   by resp
Oct 25 2004	Motion filed (non-AA)   by resp to strike portion(s) of the answer brief on the merits.
Nov 10 2004	Received:   appellant's opposition to motion.
Nov 17 2004	Opposition filed   by appellant to respondent'ts motion to strike.
Nov 24 2004	Received application to file Amicus Curiae Brief   AMAZON.COM, et al.
Nov 24 2004	Received application to file Amicus Curiae Brief   LAW PROFESSORS WITH EXPERTISE IN INTERNET LAW in support of respondent.
Nov 24 2004	Received application to file Amicus Curiae Brief   ELECTRONIC FRONTIER FOUNDATION, et al., in support of respondent.
Dec 6 2004	Permission to file amicus curiae brief granted   LAW PROFESSORS WITH EXPERTISE IN INTERNET LAW.
Dec 6 2004	Amicus curiae brief filed   LAW PROFESSORS WITH EXPERTISE IN INTERNET LAW in support of resp. Answer due within 20 days.
Dec 6 2004	Permission to file amicus curiae brief granted   ELECTRONIC FRONTIER FOUNDATION, et al.
Dec 6 2004	Amicus curiae brief filed   ELECTRONIC FRONTIER FOUNDATION, et al., in support of resp. Answer due within 20 days.
Dec 6 2004	Permission to file amicus curiae brief granted   AMAZON.COM .
Dec 6 2004	Amicus curiae brief filed   AMAZON.COM, et al. Answer due within 20 days.
Dec 8 2004	Received application to file Amicus Curiae Brief   EBay in support of respondent
Dec 15 2004	Permission to file amicus curiae brief granted   eBAY in support of resp. Answer due within 20 days.
Dec 15 2004	Amicus curiae brief filed   eBAY in support of respondent. Answer due within 20 days.
Jan 26 2005	Received:   Motion to Participate In Oral Argument by Amici Curiae Amazon.Com, Inc., America Online, Inc.,EBay Inc., Google, Inc. Yahoo! Inc., et al.
Dec 7 2005	Received:   Letter dated 12-5-2005 from Michelangelo Delfino, re case cite in H028993, Delfina et al v. Agilent Technologies, Inc.
Dec 19 2005	Received:   Letter from Laura C. Pirri of Cooley Godward LLP dated 12-15-2005, requesting removal of her name on the service ilst and list instead Michael G. Rhodes, Cooley Godward LLP, 4401 Eastgate Mall, San Diego, CA 92121 as counsel of record for amicus curiae eBay, Inc.
Mar 29 2006	Request Denied   Petitioner's Motion to Strike Answering Brief in Part, filed October 25, 2004, is denied.
May 4 2006	Change of contact information filed for:   Samir Jain of Wilmer Cutler Pickering et al, counsel for Amici Amazon.com Inc. et al. to: 1875 Pennsylvania Ave., N.W., Washington, D.C. 20006.
May 12 2006	Change of contact information filed for:   Ann Brick, ACLU Foundation of Northern California, Inc., to 39 Drumm Street, SF 94111
Aug 3 2006	Case ordered on calendar   September 5, 2006, at 2:00 p.m., in San Francisco
Aug 8 2006	Application filed to:   reschedule oral argument to October or November, 2006. filed by Roger Myers, counsel for respondent Rosenthal.
Aug 9 2006	Order filed   The application by counsel for respondent Rosenthal to have oral argument rescheduled, filed August 8, 2006, is denied.
Aug 14 2006	Received:   Letter from the Law Offices of Christopher E. Grell, counsel for Respondent, Dr. Terry Pelovy, dated August 11, 2006. (tct)
Aug 16 2006	Application filed to:   divide oral argument time. counsel for respondents Rosenthal et al., asking to share 15 minutes of time with Ann Brick, counsel for amici curiae ACLU and Electronic Frontier Foundation.
Aug 16 2006	Motion filed (non-AA)   Motion of amici curiae Amazon.Com, Inc. et. al., for leave to participate in oral argument filed (originally received on 1/26/2005).
Aug 17 2006	Order filed   The request of counsel for respondent in the above-referenced cause to allow two counsel to argue on behalf of respondent at oral argument is hereby granted. The request of respondent to allocate to amici curiae Electronic Frontiers Foundation et al. 15 minutes of respondent's 30-minute allotted time for oral argument is granted.
Aug 17 2006	Order filed   The motion for leave to participate in oral argument, filed August 16, 2006, by amici curiae Amazon.Com, Inc. et al., is denied.
Aug 25 2006	Received:   Letter from Mark Goldowitz, counsel for defendant and respondent (Rosenthal) re cites.
Sep 5 2006	Cause argued and submitted
Nov 20 2006	Opinion filed: Judgment reversed   Opinion by Corrigan, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin & Moreno, JJ. Concurring Opinion by Moreno, J.
Nov 20 2006	Change of contact information filed for:   Roger Myers, counsel for respondent Rosenthal
Dec 21 2006	Remittitur issued (civil case)
Jan 8 2007	Received:   Acknowledgement of receipt of remittitur signed for by Stacy Wheeler, Deputy

Briefs
Jun 14 2004	Opening brief on the merits filed
Sep 13 2004	Answer brief on the merits filed
Oct 25 2004	Reply brief filed (case fully briefed)
Dec 6 2004	Amicus curiae brief filed
Dec 6 2004	Amicus curiae brief filed
Dec 6 2004	Amicus curiae brief filed
Dec 15 2004	Amicus curiae brief filed

Brief Downloads
opening reply brief of barrett.pdf (2117989 bytes) - Opening Reply Brief of Barrett
REPLY BRIEF ON THE MERITS of rosenthal.pdf (66293 bytes) - Reply Brief on the merits of Rosenthal
EFF and ACLU amicus.pdf (103367 bytes) - EFF and ACLU Amicus brief
ISPs Amicus.pdf (3607686 bytes) - ISP Amicus brief
law_professors_amicus_brief.pdf (2031144 bytes) - Law Professors amicus brief

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Jul 4, 2011 Annotated by Joel Cazares

Annotation by Joel Cazares Facts Plaintiffs Dr. Stephen J. Barrett and Dr. Terry Polevoy ran websites dedicated to exposing health quackery. Defendant Ilena Rosenthal operated an alternative health website and related internet discussion group. Plaintiffs alleged that Rosenthal committed libel by distributing defamatory statements in emails and discussion group posts, attacking “plaintiff’s character and competence and disparaging their efforts to combat fraud.” Defendant allegedly republished various messages even after Plaintiffs gave notice that they contained false and defamatory information. The defamatory statements included terms calling plaintiffs “Nazis, arrogant, professionally incompetent.” Moreover, Rosenthal included an article written by another which accused Dr. Polevoy of stalking a Canadian radio producer.   Procedural History Plaintiffs filed suit for libel for the internet statements. Rosenthal moved to strike the complaint under the “anti-strategic lawsuit against public participation” statute. (“anti-SLAPP,” Cal. Code Civ. Proc., § 425.16), claiming her statements were protected speech under the Communications Decency Act of 1996 (47 U.S.C. § 230). The court granted the motion, finding that Rosenthal’s statements involved an issue of public interest within the scope of the anti-SLAPP statute and were not actionable because they contained no provably false assertions of fact. The court determined that the only actionable statement was the article accusing Dr. Polevoy of being a stalker, but that this republication was immunized by § 230(c)(1). The Court of Appeal vacated the order granting the motion to strike insofar as it applied to Dr. Polevoy. The Court held that § 230 did not protect Rosenthal from liability as a “distributor” under the common law of defamation. The Supreme Court of California granted Rosenthal’s petition for review. Issues Does the Communications Decency Act of 1996 confer immunity on distributors? Holding Yes, the Communications Decency Act of 1996 immunity provision applies to distributors. Analysis The Court turned to the leading case on § 230 immunity, Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997). The court in Zeran held “subjecting Internet service providers and users to defamation liability would tend to chill online speech.” The California Court of Appeals below had improperly gone against Zeran, finding a distinction between publishers and distributors, whereas Zeran had found that distributors are commonly known as secondary publishers and hence the distinction between the two was vague and useless. The California Supreme Court also agreed with Zeran’s legislative history interpretation, viz. that Congress did not intend to create an exception to § 230 immunity for internet distributors. Disposition The Court reversed the judgment of the Court of Appeal. Related Cases Zeran v. America Online, Inc., 129 F.3d 327 (1997) Tags First Amendment Internet liability Internet Speech