No. 13-5946
Jones v. Dirty World Entm’t Recordings, et al.
Page 20
521 F.3d at 1166−69, or that contractors conduct unlawful action, cf. Accusearch, 570 F.3d at
1200−01.
We do not adopt the district court’s encouragement test of immunity under the CDA.
The district court misapprehended how other circuits, particularly the Ninth Circuit in
Roommates, have separated what constitutes “development” in § 230(f)(3) from what does not.
The district court elided the crucial distinction between, on the one hand, taking actions
(traditional to publishers) that are necessary to the display of unwelcome and actionable content
and, on the other hand, responsibility for what makes the displayed content illegal or actionable.
See Roommates, 521 F.3d at 1169−74. This is the distinction that divides the holdings in
Roommates and Accusearch, which stripped the respective defendants of the CDA’s protection,
from the holdings in Roommates, Chicago Lawyers’ Committee, Johnson, Batzel, Nemet, and
Zeran, which barred the respective plaintiffs’ claims.
In Roommates, the website was
responsible for the alleged discrimination by requiring users to submit protected characteristics
and hiding listings based on those submissions. 521 F.3d at 1165−68. In Accusearch, the
website was responsible for the illegal purchase and resale of confidential telephone records.
570 F.3d at 1200−01. But in Chicago Lawyers’ Committee, 519 F.3d at 671−72, and Nemet,
591 F.3d at 256−57, for example, the website operators provided a forum for user posts, did not
require users to violate the law as a condition of posting, did not compensate for the posting of
actionable speech, did not post actionable content themselves, and therefore were not responsible
for the actionable speech that was displayed on their websites. The district court’s rule does not
neatly divide these cases. An encouragement theory of “development” does not obviously
capture what was allegedly unlawful about the design of Roommate’s website, particularly its
search engine, or Accusearch’s payment for unlawful conduct. And it does not obviously leave
out the neutral fora created by the commercially oriented websites targeted by the claims in
Chicago Lawyers’ Committee and Nemet (craigslist.com and www.consumeraffairs.com,
respectively).
More importantly, an encouragement test would inflate the meaning of “development” to
the point of eclipsing the immunity from publisher-liability that Congress established. Many
websites not only allow but also actively invite and encourage users to post particular types of
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