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Immunity under § 230 of the Communications Decency Act, 47 U.S.C.S. § 230(c)(1), has three elements: (1) the defendant is a provider or user of an interactive computer service, (2) the claim is based on information provided by another information content provider and (3) the claim would treat the defendant as the publisher or speaker of that information. An "information content provider" is any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service. 47 U.S.C.S. § 230(f)(3).
Plaintiff Roslyn La Liberte spoke at a 2018 city council meeting to oppose California's sanctuary-state law; soon after, a social media activist posted a photo showing La Liberte with open mouth in front of a minority teenager; the caption was that persons (unnamed) had yelled specific racist remarks at the young man in the photo. Defendant Joy Reid, a personality on cable television, retweeted that post, an act that is not alleged to be defamatory. The defamation claim is based on Reid's two later posts: her June 29 post showed the photograph and attributed the specific racist remarks to La Liberte; her July 1 post, to the same effect, juxtaposed the photograph with the 1957 image of a white woman in Little Rock screaming execrations at a Black child trying to go to school. The teenager who was photographed with La Liberte soon after publicly explained that La Liberte did not scream at him and that they were having a civil discussion. La Liberte sued Reid for defamation in the United States District Court for the Eastern District of New York. The district court rejected Reid's defense of immunity under section 230 of the Communications Decency Act, but nevertheless dismissed La Liberte's defamation claim as to both of Reid's posts. The court deemed La Liberte to be a limited purpose public figure and held that she failed to allege actual malice as to the first post, and rejected the claim as to the second post on the ground that it was nonactionable opinion. Moreover, the court "struck" La Liberte's defamation claim--and imposed attorneys' fees (to be assessed)--under California's Anti-Strategic Lawsuits Against Public Participation ("anti-SLAPP") statute for failure to establish "a probability that the plaintiff will prevail." Cal. Civ. Proc. Code § 425.16(b)(1),(c)(1). La Liberte appealed on the grounds that she was not a limited purpose public figure, that both posts were defamatory, and that California's anti-SLAPP statute is inapplicable in federal court. Reid argued that the court erroneously denied Section 230 immunity as to her first post.
Could Reid claim immunity under § 230 of the Communications Decency Act?
The court held that Reid could not claim immunity under § 230 of the Communications Decency Act because La Liberte’s defamation lawsuit did not treat her as the publisher or speaker of any information provided by another information content provider, 47 U.S.C. § 230(c)(1). To the contrary, she was the sole author of allegedly defamatory post. Since La Liberte was not a limited purpose public figure, the district court erred by requiring her to allege actual malice, and her claim as to a post should not have been dismissed for failing to do so. She lacked regular and continuing media access and she not use an interview to inject herself to the forefront of the controversy but was pulled into a spotlight. The district court erred by characterizing a second post as non-actionable opinion because the accusation was capable of being proven or disproven.