03/02/2020 AYYADURAI v. FLOOR64, INC | 270 F.Supp.3d 343... | 20170907d75| Leagle.com Finally, the context in which the above statements were made reinforces the conclusion that they were subjective statements of opinion and not fact. See McCabe, 814 F.2d at 843 (noting that the narrative style in which the article at issue was written "reinforces our conclusion that the statement was protected" because it was "unlikely to convey the impression that an imprecise and unveri able statement is meant to be a statement of fact"); Phantom Touring, 953 F.2d at 729 ("The sum e ect of the format, tone and entire content of the articles is to make it unmistakably clear that [the writer] was expressing a point of view only. [Accordingly], the challenged language is immune from liability."). The articles at issue include humorous bylines such as "from the that's-just-wrong dept.," "from the really-now? dept.," and "from the what's-wrong-with-people-over-there dept." (Compl. Exs. G, H, J). The use of such language indicates that the articles contain the personal views of their authors, rather than statements of fact. See Phantom Touring, 953 F.2d at 729 ("[The writer's] snide, exasperated language indicated that his comments represented his personal appraisal of the factual information contained in the article."). 5.  Whether the Complaint Plausibly Alleges Malice "[P]ublic o cials and public gures may only recover if they can prove that the publication that harmed them contained a false statement of fact that was made with actual malice." Fiacco v. Sigma Alpha Epsilon Fraternity, 528 F.3d 94, 99 (1st Cir. 2008). In this context, "actual malice" means "knowledge of or reckless disregard for the falsity of the statement." Levinsky's, 127 F.3d at 127. To allege a plausible claim of "actual malice," the complaint must "lay out enough facts from which malice might reasonably be inferred." Schatz v. Republican State Leadership Comm., 669 F.3d 50, 58 (1st Cir. 2012). Here, the complaint fails to lay out such facts. It alleges that defendants made the allegedly defamatory statements "with the knowledge that they were false," but fails to provide any speci c factual allegations to support that conclusion. (See Compl. ¶ 48). It alleges only that defendants made the allegedly defamatory statements despite knowing that another website, Gawker.com, had settled a defamation claim brought by plainti concerning similar statements. (Compl. ¶ 51). However, even assuming that the statements at issue in the Gawker litigation were substantially similar to the statements at issue here (although the complaint does not allege as much), a settlement is not a direct re ection of the merits of a claim. Cf. Flinn v. FMC Corp., 528 F.2d 1169, 1172-73 (4th Cir. 1975) (noting that, where court approval of settlement is required, the court should not "turn the settlement hearing `into a trial or a rehearsal of the trial'" or determine to a certainty whether the claim at issue "is or is not worthless or valuable" (quoting Teachers Ins. & Annuity Ass'n of Am. v. Beame, 67 F.R.D. 30, 33 (S.D.N.Y. 1975)). Accordingly, knowledge of the settlement does not establish knowledge of the falsity of the statements. The complaint therefore fails to plausibly allege that the statements at issue were made with actual malice. 6.  Whether the Claim Based on Beadon's Article Is Barred by the Communications Decency Act Defendant Beadon has also moved to dismiss the defamation claim against him (based upon the one article that he authored) on the ground that the claim is barred under the Communications Decency Act ("CDA"). The CDA provides that "[n]o provider or user of an interactive [270 F.Supp.3d 367] 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), and that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section," id. § 230(e)(3). Beadon contends that because the only article identi ed in the complaint that he authored contains primarily content created by thirdparty users — along with minor editorializing comments created by him that are not identi ed as defamatory in the complaint — he is immune under § 230. "Section 230 immunity should be broadly construed." Universal Commc'n. Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007); accord Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 18 (1st Cir. 2016) ("There has been near-universal agreement that section 230 should not be construed grudgingly."). "Congress enacted [the CDA] partially in response to court cases that held internet publishers liable for defamatory statements posted by third parties on message boards maintained by the publishers." Jane Doe No. 1, 817 F.3d at 18. The statute was intended to prevent tort liability from "chilling" online speech and to "remov[e] the disincentives to self-regulation that would otherwise result if liability were imposed on intermediaries that took an active role in screening content" — for example, by ltering or editing out obscene or otherwise inappropriate content. Lycos, 478 F.3d at 418-19 (quoting Zeran v. America Online, Inc., 129 F.3d 327, 331 (4th Cir. 1997)). To give e ect to those purposes, § 230 "shields website operators from being `treated as the publisher or speaker' of material posted by users of the site,' 47 U.S.C. § 230(c)(1), which means that `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.'" Jane Doe No. 1, 817 F.3d at 18 (quoting Zeran, 129 F.3d at 330). Immunity under § 230 extends only to "information provided by another information content provider." 47 U.S.C. § 230(c)(1). "Information content provider," in turn, is de ned 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." Id. § 230(f)(3). Accordingly, users or providers of interactive computer services remain liable for their own speech, including speech that they are "responsible, in whole or in part, for the creation or development of." The question here is thus whether the defendants are so responsible. The article at issue, authored by Beadon and entitled "Funniest/Most Insightful Comments of the Week at Techdirt," includes re-postings of comments posted by Techdirt's readers. (Compl. Ex. S). The article includes hyperlinks to the original comments, which were all posted in the "Reader Comments" section of previous Techdirt posts, and also includes intermittent introductory and editorial comments written by Beadon. All of the allegedly defamatory comments identi ed in the complaint are contained within the re-posted user comments. (See Compl. Ex. S at 1-2). 11 Whether defendants are immune under the CDA thus depends upon whether re-posting comments originally created by third-party users amounts to the "creation or development of information." [270 F.Supp.3d 368] The leading case in this area is Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc). See Jones v. Dirty World Ent. Recordings LLC, 755 F.3d 398, 410 (6th Cir. 2014) (identifying Roommates as the leading case). There, the Ninth Circuit "interpret[ed] the term `development' as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness." Roommates, 521 F.3d at 1167-68. Accordingly, "a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct." Id. at 1168. Applying that standard, courts have found that "merely taking action that is necessary to the display of allegedly illegal content," including republishing and commenting upon user generated content, does not constitute "creation or development." Jones, 755 F.3d at 410. In Jones, for example, the Sixth Circuit held that a website manager who had selected defamatory comments from among thousands of user submissions and posted those comments to his website, adding his own commentary, was immune under § 230. Id. at 415-16. The court reasoned that simply selecting the comments for publication and adding commentary "did not materially contribute to the defamatory content of the statements." Id. at 416. Similarly, in Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), the Ninth Circuit held that the operator of a listserv was immune under § 230 when he made minor edits to and published, both to the listserv and to his website, an e-mail that he had received from a third party. 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