This article was published originally on Techdirt.com, and was co-authored with Evan Mascagni, the Policy Director at the Public Participation Project. Re-published with the permission of Techdirt.
Collateral Censorship and Section 230 of the Communications Decency Act
Lawsuits against institutions that transmit speech, such as newspapers and blogs, impose costs that those institutions act to avoid—if necessary, by preemptively censoring any third-party speech that increases their exposure to legal liability. The purpose of Section 230 of the Communications Decency Act is to prevent this collateral chilling effect, specifically on internet users’ speech. CDA 230 enables the dismissal before trial of suits seeking to hold websites of the user-driven content model, such as Twitter and YouTube, liable for the unlawful speech or conduct of their users. This law is based on a policy judgment that, if held liable for all illegal content within millions of online posts, websites would reduce the amount of speech they transmit and, erring on the side of avoiding legal costs, would censor some lawful speech.
But even unsuccessful suits impose costs—after all, defendants who dismiss a suit before trial on CDA 230 grounds still must hire a team of expensive lawyers to secure dismissal. An empirical study in 2012 by Professor David Ardia at the University of North Carolina determined that the average CDA 230 case terminated on a motion to dismiss takes almost a year to reach dismissal. Ardia noted, plausibly, that litigating for this length of time entails substantial defense-side costs. In order to mitigate the collateral chilling effect of these pre-trial costs, defendants in CDA 230 cases need a fee-shifting mechanism that allows them to impose their costs on plaintiffs whose cases have faltered at the motion to dismiss stage. Given likely political obstacles to adding a fee-shifting provision to CDA 230 itself, a good way to supply this mechanism is through federal anti-SLAPP legislation.
State anti-SLAPP laws serve a similar, but broader purpose than CDA 230: they provide for the expedited dismissal of meritless suits seeking to sanction the exercise of speech—“Strategic Lawsuits Against Public Participation,” or “SLAPPs,” in both an online and an offline context. The object of a such a meritless suit is often to silence someone or to force them to spend money, and not necessarily to obtain a favorable result at trial. A classic example of a SLAPP is a defamation lawsuit filed by a public figure against a newspaper in response to a critical opinion piece.
To invoke the protection of an anti-SLAPP law, a defendant must go through two steps. First, she must show that a suit is in response to activity on the part of the defendant that falls in one or several categories of First Amendment-related activities. Every anti-SLAPP law is worded differently, but many specify that they protect statements on “matters of public interest,” “issues of public concern” or something similar. Second, a defendant must show, in a promptly organized pre-trial proceeding, that the suit is meritless. And unlike CDA 230, most anti-SLAPP statutesimpose the defendant’s costs on the plaintiff upon dismissal.
Currently, there is no federal anti-SLAPP law. As a result, there are important gaps in anti-SLAPP protection. For example, an anti-SLAPP defense is not available to defendants faced with meritless suits involving federal law claims. Additionally, plaintiffs can circumvent anti-SLAPP protection through “forum-shopping”—that is, by strategically bringing a suit in a state with a weaker anti-SLAPP law when bringing the suit in a state with a stronger anti-SLAPP law also would be proper. Federal anti-SLAPP legislation can prevent both of these tactics, not only in a CDA 230 context but with respect to frivolous anti-speech litigation generally.
Combining CDA 230 and Anti-SLAPP Protection in State Court
In some state courts, a defendant like YouTube can combine CDA 230’s substantive protection against liability for third-party content with an anti-SLAPP law’s fee-shifting feature. A defendant in such a case argues that a suit targeting the operator of a website for the speech or conduct of its users is meritless in light of the applicability of a CDA 230 defense and thus should be dismissed under the anti-SLAPP law. And under most anti-SLAPP statutes, the plaintiff must then compensate the defendant for her costs.
The combined application of the two defenses has occurred several times in California state courts. In Albert v. Yelp, for instance, a plaintiff-side consumer lawyer sued Yelp for defamation over negative reviews of her firm. Lenore Albert, the proprietor of a small firm in Huntington Beach, California, advertised herself as a “consumer advocate” fighting on behalf of “the people.” An employee of the firm became upset with Albert after she missed a filing deadline in a case brought on behalf of the employee’s friend. This employee organized a campaign among her friends to lower the firm’s Yelp rating by posting reviews characterizing Albert as an incompetent attorney who misses deadlines. Albert brought a defamation suit against the employee, her friends, and, most importantly for the purpose of obtaining a measurable award of damages, against Yelp itself.
Yelp disposed of the suit with an anti-SLAPP motion. In the first step of its anti-SLAPP analysis, the court noted that whether a lawyer presenting herself as a crusader for “the people” was living up to this self-description was a matter of public interest squarely within the purview of anti-SLAPP protection. Second, the court determined that the suit was meritless, as CDA 230 unambiguously protects Yelp from liability for defamation committed by a consumer reviewer. The case was dismissed and, in accordance with California’s anti-SLAPP statute, Yelp recovered its costs.
Closing Loopholes in This Combined Defense Through Federal Anti-SLAPP Legislation
Plaintiffs, however, can avoid this fortified combination of defenses in at least two ways. First, because state anti-SLAPP rules do not apply to federal claims, a plaintiff bringing a harassing lawsuit can bypass a state anti-SLAPP law by pleading a federal claim rather than a similar state law claim. For example, in 2016, Resolute Forest Products, a Canadian logging company, brought a lawsuit against Greenpeace in response to a media campaign accusing the company of unsustainable logging practices. Resolute alleged, among other claims, that Greenpeace violated both state and federal anti-racketeering laws by “creat[ing] and disseminat[ing] false and misleading reports and information…for the unlawful purpose of soliciting fraudulent donations from the public-at-large.” Resolute’s federal racketeering claim was equivalent to its state racketeering claim and overlapped with its state law defamation cause of action, which provides relief for reputational harm from false statements. A California federal court dismissed all claims against Greenpeace but only applied the anti-SLAPP law’s fee-shifting feature to the state law claims. Thus, Resolute partly accomplished its intended objective of forcing Greenpeace to spend money defending itself it court.
Second, a plaintiff can avoid state anti-SLAPP protection by strategically filing a suit in a jurisdiction with a weak anti-SLAPP law. For example, Washington Redskins owner Daniel Snyder responded to an article in a Washington D.C. newspaper criticizing Snyder’s management and ownership practices by threatening to sue a New York hedge fund that owned the paper. Washington, D.C. had at the time and continues to have a stronger anti-SLAPP law than New York. In a letter to the hedge fund, Snyder’s attorney candidly admitted the abusive motivation of the suit, writing “We presume defending such litigation would not be a rational strategy for an investment fund such as yours. Indeed, the cost of litigation would presumably quickly outstrip the value of the Washington City Paper.” Snyder ultimately dropped the suit.
A federal anti-SLAPP law would close these loopholes in anti-SLAPP protection. Federal claims would be subject to federal anti-SLAPP rules. And a federal anti-SLAPP law can contain a removal provision that allows defendants to transfer a suit to federal court, which would prevent forum-shopping. More specifically, federal anti-SLAPP legislation would maximize internet users’ protection from collateral censorship by making the anti-SLAPP fee-shifting mechanism available to defendants in a broader range of CDA 230 cases.
Limitations to Anti-SLAPP Legislation’s Enhancing Effect Upon CDA 230
While federal anti-SLAPP legislation undoubtedly would enhance CDA 230, there are certain gaps in both CDA 230 and anti-SLAPP protection that would not be mitigated by combining the two at the federal level. First, CDA 230 immunity can be narrowed by statutory amendment or judicial interpretation, and any such development simultaneously reduces the scope of anti-SLAPP protection in a CDA 230 context. Second, state anti-SLAPP jurisprudence suggests that a federal anti-SLAPP law would not apply in all CDA 230 cases.
A federal anti-SLAPP law would neither add to nor subtract from substantive CDA 230 immunity, however Congress and the courts independently choose to define this immunity. An anti-SLAPP defense can only be invoked against a meritless suit, and a complaint that pleads around the bounds of CDA § 230 immunity potentially has merit. Any legislation creating exceptions to CDA 230 immunity, such as the recently enacted Allow States and Victims to Fight Online Sex Trafficking Act, would simultaneously limit anti-SLAPP protection. The same is true of any judicial doctrine reducing the scope of CDA 230 immunity. For example, in the wake of Fair Housing Council of San Fernando Valley v. Roommates.com, which established that website operators can be held liable for “materially contributing” to unlawful third-party content, a number of lower courts have permitted plaintiffs to overcome a motion to dismiss with mere allegations that the defendant has played a role in the creation of content. A court would permit a plaintiff to overcome an anti-SLAPP motion on the same basis.
Additionally, courts likely would define limitations to anti-SLAPP protection that would preclude a federal anti-SLAPP defense in some CDA 230 cases. As explained, under anti-SLAPP statutes, before a court determines whether a claim is meritorious, the court typically must make a threshold finding that a legal dispute involves a matter of public interest. Defendants’ anti-SLAPP motions are sometimes defeated because the subject matter of the speech at issue is not “of concern to a substantial number of people,” but rather is something of interest only to the litigants or to a small subset of the public.
Inevitably, courts will find that some claims that lack merit on account of the applicability of a CDA 230 defense nevertheless do not qualify for anti-SLAPP protection because they do not touch on a matter of public concern. For instance, California courts sometimes distinguish online consumer reviews that involve simply an individual customer’s assessment of a vendor—a purportedly private matter—from reviews that provide additional commentary on issues of interest to the public, such as advice on how to choose a vendor within a certain industry. While CDA 230 typically protects a defendant consumer review website from liability for an unlawful consumer review, anti-SLAPP protection at the state level does not apply in all such cases. More generally, there is an imperfect overlap between CDA 230 immunity and anti-SLAPP protection. Assuming that a federal anti-SLAPP statute would mimic the language of broad state anti-SLAPP statutes, a similar imperfect overlap with CDA 230 likely will develop in jurisprudence interpreting a federal anti-SLAPP statute.
Although CDA 230 has come under criticism recently pertaining to some of its specific applications, it is important to sustain CDA 230’s central role in enabling the modern system of internet discourse and commerce. To accomplish more fully its indispensable purpose of protecting internet users from the threat of collateral censorship, this legal linchpin of the modern web needs to be supplemented with a fee-shifting provision. Passing federal anti-SLAPP legislation is an effective means to provide this crucial support.