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        ARGUED: John Saul Edwards, Law Offices of John S. Edwards, Roanoke, VA; Leo Kayser, III, Kayser & Redfern, New York City, for Appellant. Patrick Joseph Carome, Wilmer, Cutler & Pickering, Washington, DC, for Appellee. ON BRIEF: John Payton, Samir Jain, Wilmer, Cutler & Pickering, Washington, DC; Randall J. Boe, America Online, Inc., Dulles, VA, for Appellee.

        Before WILKINSON, Chief Judge, RUSSELL, Circuit Judge, and BOYLE, Chief United States District Judge for the Eastern District of North Carolina, sitting by designation.

        Affirmed by published opinion. Chief Judge WILKINSON wrote the opinion, in which Judge RUSSELL and Chief Judge BOYLE joined.

        WILKINSON, Chief Judge:

        Kenneth Zeran brought this action against America Online, Inc. ("AOL"), arguing that AOL unreasonably delayed in removing defamatory messages posted by an unidentified third party, refused to post retractions of those messages, and failed to screen for similar postings thereafter. The district court granted judgment for AOL on the grounds that the Communications Decency Act of 1996 ("CDA")--47 U.S.C. § 230--bars Zeran's claims. Zeran appeals, arguing that § 230 leaves intact liability for interactive computer service providers who possess notice of defamatory material posted through their services. He also contends that § 230 does not apply here because his claims arise from AOL's alleged negligence prior to the CDA's enactment. Section 230, however, plainly immunizes computer service providers like AOL from liability for information that originates with third parties. Furthermore, Congress clearly expressed its intent that § 230 apply to lawsuits, like Zeran's, instituted after the CDA's enactment. Accordingly, we affirm the judgment of the district court.

I.

        "The Internet is an international network of interconnected computers," currently used by approximately 40 million people worldwide. Reno v. ACLU, --- U.S. ----, ----, 117 S.Ct. 2329, 2334, 138 L.Ed.2d 874 (1997). One of the many means by which individuals access the Internet is through an interactive computer service. These services offer not only a connection to the Internet as a whole,

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        The instant case comes before us on a motion for judgment on the pleadings, see Fed.R.Civ.P. 12(c), so we accept the facts alleged in the complaint as true. Bruce v. Riddle, 631 F.2d 272, 273 (4th Cir.1980). On April 25, 1995, an unidentified person posted a message on an AOL bulletin board advertising "Naughty Oklahoma T-Shirts." The posting described the sale of shirts featuring offensive and tasteless slogans related to the April 19, 1995, bombing of the Alfred P. Murrah Federal Building in Oklahoma City. Those interested in purchasing the shirts were instructed to call "Ken" at Zeran's home phone number in Seattle, Washington. As a result of this anonymously perpetrated prank, Zeran received a high volume of calls, comprised primarily of angry and derogatory messages, but also including death threats. Zeran could not change his phone number because he relied on its availability to the public in running his business out of his home. Later that day, Zeran called AOL and informed a company representative of his predicament. The employee assured Zeran that the posting would be removed from AOL's bulletin board but explained that as a matter of policy AOL would not post a retraction. The parties dispute the date that AOL removed this original posting from its bulletin board.

        On April 26, the next day, an unknown person posted another message advertising additional shirts with new tasteless slogans related to the Oklahoma City bombing. Again, interested buyers were told to call Zeran's phone number, to ask for "Ken," and to "please call back if busy" due to high demand. The angry, threatening phone calls intensified. Over the next four days, an unidentified party continued to post messages on AOL's bulletin board, advertising additional items including bumper stickers and key chains with still more offensive slogans. During this time period, Zeran called AOL repeatedly and was told by company representatives that the individual account from which the messages were posted would soon be closed. Zeran also reported his case to Seattle FBI agents. By April 30, Zeran was receiving an abusive phone call approximately every two minutes.

        Meanwhile, an announcer for Oklahoma City radio station KRXO received a copy of the first AOL posting. On May 1, the announcer related the message's contents on the air, attributed them to "Ken" at Zeran's phone number, and urged the listening audience to call the number. After this radio broadcast, Zeran was inundated with death threats and other violent calls from Oklahoma City residents. Over the next few days, Zeran talked to both KRXO and AOL representatives. He also spoke to his local police, who subsequently surveilled his home to protect his safety. By May 14, after an Oklahoma City newspaper published a story exposing the shirt advertisements as a hoax and after KRXO made an on-air apology, the number of calls to Zeran's residence finally subsided to fifteen per day.

        Zeran first filed suit on January 4, 1996, against radio station KRXO in the United States District Court for the Western District of Oklahoma. On April 23, 1996, he filed this separate suit against AOL in the same court. Zeran did not bring any action against the party who posted the offensive messages. ¹ After Zeran's suit against AOL was transferred to the Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a), AOL answered Zeran's complaint and interposed 47 U.S.C. § 230 as an affirmative defense. AOL then moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c).

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II.

A.

        Because § 230 was successfully advanced by AOL in the district court as a defense to Zeran's claims, we shall briefly examine its operation here. Zeran seeks to hold AOL liable for defamatory speech initiated by a third party. He argued to the district court that once he notified AOL of the unidentified third party's hoax, AOL had a duty to remove the defamatory posting promptly, to notify its subscribers of the message's false nature, and to effectively screen future defamatory material. Section 230 entered this litigation as an affirmative defense pled by AOL. The company claimed that Congress immunized interactive computer service providers from claims based on information posted by a third party.

        The relevant portion of § 230 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." 47 U.S.C. § 230(c)(1). ² By its plain language, § 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.

        The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum. In specific statutory findings, Congress recognized the Internet and interactive computer services as offering "a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity." Id. § 230(a)(3). It also found that the Internet and interactive computer services "have flourished, to the benefit of all Americans, with a minimum of government regulation." Id. § 230(a)(4) (emphasis added). Congress further stated that it is "the policy of the United States ... 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." Id. § 230(b)(2) (emphasis added).

        None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. While Congress acted to keep government regulation of the Internet to a minimum, it also found it to be the policy of the United States "to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer." Id. § 230(b)(5). Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries

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        Congress' purpose in providing the § 230 immunity was thus evident. Interactive computer services have millions of users. See Reno v. ACLU, --- U.S. at ----, 117 S.Ct. at 2334 (noting that at time of district court trial, "commercial online services had almost 12 million individual subscribers"). The amount of information communicated via interactive computer services is therefore staggering. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.

        Another important purpose of § 230 was to encourage service providers to self-regulate the dissemination of offensive material over their services. In this respect, § 230 responded to a New York state court decision, Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y.Sup.Ct. May 24, 1995). There, the plaintiffs sued Prodigy--an interactive computer service like AOL--for defamatory comments made by an unidentified party on one of Prodigy's bulletin boards. The court held Prodigy to the strict liability standard normally applied to original publishers of defamatory statements, rejecting Prodigy's claims that it should be held only to the lower "knowledge" standard usually reserved for distributors. The court reasoned that Prodigy acted more like an original publisher than a distributor both because it advertised its practice of controlling content on its service and because it actively screened and edited messages posted on its bulletin boards.

        Congress enacted § 230 to remove the disincentives to selfregulation created by the Stratton Oakmont decision. Under that court's holding, computer service providers who regulated the dissemination of offensive material on their services risked subjecting themselves to liability, because such regulation cast the service provider in the role of a publisher. Fearing that the specter of liability would therefore deter service providers from blocking and screening offensive material, Congress enacted § 230's broad immunity "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." 47 U.S.C. § 230(b)(4). In line with this purpose, § 230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.

B.

        Zeran argues, however, that the § 230 immunity eliminates only publisher liability, leaving distributor liability intact. Publishers can be held liable for defamatory statements contained in their works even absent proof that they had specific knowledge of the statement's inclusion. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 113, at 810 (5th ed.1984). According to Zeran, interactive computer service providers like AOL are normally considered instead to be distributors, like traditional news vendors or book sellers. Distributors cannot be held liable for defamatory statements contained in the materials they distribute unless it is proven at a minimum that they have actual knowledge of the defamatory statements upon which liability is predicated. Id. at 811 (explaining that distributors are not liable "in the absence of proof that they knew or had reason to know of the existence of defamatory matter contained in matter published"). Zeran contends that he provided AOL with sufficient notice of the defamatory statements appearing on the company's bulletin board. This notice is significant, says Zeran, because AOL could be held liable as a distributor only if it acquired knowledge of the defamatory statements' existence.

        Because of the difference between these two forms of liability, Zeran contends that the term "distributor" carries a legally distinct meaning from the term "publisher."

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        The terms "publisher" and "distributor" derive their legal significance from the context of defamation law. Although Zeran attempts to artfully plead his claims as ones of negligence, they are indistinguishable from a garden variety defamation action. Because the publication of a statement is a necessary element in a defamation action, only one who publishes can be subject to this form of tort liability. Restatement (Second) of Torts § 558(b) (1977); Keeton et al., supra, § 113, at 802. Publication does not only describe the choice by an author to include certain information. In addition, both the negligent communication of a defamatory statement and the failure to remove such a statement when first communicated by another party--each alleged by Zeran here under a negligence label--constitute publication. Restatement (Second) of Torts § 577; see also Tacket v. General Motors Corp., 836 F.2d 1042, 1046-47 (7th Cir.1987). In fact, every repetition of a defamatory statement is considered a publication. Keeton et al., supra, § 113, at 799.

        In this case, AOL is legally considered to be a publisher. "[E]very one who takes part in the publication ... is charged with publication." Id. Even distributors are considered to be publishers for purposes of defamation law:

Those who are in the business of making their facilities available to disseminate the writings composed, the speeches made, and the information gathered by others may also be regarded as participating to such an extent in making the books, newspapers, magazines, and information available to others as to be regarded as publishers. They are intentionally making the contents available to others, sometimes without knowing all of the contents--including the defamatory content--and sometimes without any opportunity to ascertain, in advance, that any defamatory matter was to be included in the matter published.

        Id. at 803. AOL falls squarely within this traditional definition of a publisher and, therefore, is clearly protected by § 230's immunity.

        Zeran contends that decisions like Stratton Oakmont and Cubby, Inc. v. CompuServe Inc., 776 F.Supp. 135 (S.D.N.Y.1991), recognize a legal distinction between publishers and distributors. He misapprehends, however, the significance of that distinction for the legal issue we consider here. It is undoubtedly true that mere conduits, or distributors, are subject to a different standard of liability. As explained above, distributors must at a minimum have knowledge of the existence of a defamatory statement as a prerequisite to liability. But this distinction signifies only that different standards of liability may be applied within the larger publisher category, depending on the specific type of publisher concerned. See Keeton et al., supra, § 113, at 799-800 (explaining that every party involved is charged with publication, although degrees of legal responsibility differ). To the extent that decisions like Stratton and Cubby utilize the terms "publisher" and "distributor" separately, the decisions correctly describe two different standards of liability. Stratton and Cubby do not, however, suggest that distributors are not also a type of publisher for purposes of defamation law.

        Zeran simply attaches too much importance to the presence of the distinct notice element in distributor liability. The simple fact of notice surely cannot transform one from an original publisher to a distributor in the eyes of the law. To the contrary, once 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 impose liability on AOL for assuming the

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        Our view that Zeran's complaint treats AOL as a publisher is reinforced because AOL is cast in the same position as the party who originally posted the offensive messages. According to Zeran's logic, AOL is legally at fault because it communicated to third parties an allegedly defamatory statement. This is precisely the theory under which the original poster of the offensive messages would be found liable. If the original party is considered a publisher of the offensive messages, Zeran certainly cannot attach liability to AOL under the same theory without conceding that AOL too must be treated as a publisher of the statements.

        Zeran next contends that interpreting § 230 to impose liability on service providers with knowledge of defamatory content on their services is consistent with the statutory purposes outlined in Part IIA. Zeran fails, however, to understand the practical implications of notice liability in the interactive computer service context. Liability upon notice would defeat the dual purposes advanced by § 230 of the CDA. Like the strict liability imposed by the Stratton Oakmont court, liability upon notice reinforces service providers' incentives to restrict speech and abstain from self-regulation.

        If computer service providers were subject to distributor liability, they would face potential liability each time they receive notice of a potentially defamatory statement--from any party, concerning any message. Each notification would require a careful yet rapid investigation of the circumstances surrounding the posted information, a legal judgment concerning the information's defamatory character, and an on-the-spot editorial decision whether to risk liability by allowing the continued publication of that information. 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. Cf. Auvil v. CBS 60 Minutes, 800 F.Supp. 928, 931 (E.D.Wash.1992) (recognizing that it is unrealistic for network affiliates to "monitor incoming transmissions and exercise on-the-spot discretionary calls"). Because service providers would be subject to liability only for the publication of information, and not for its removal, they would have a natural incentive simply to remove messages upon notification, whether the contents were defamatory or not. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 777, 106 S.Ct. 1558, 1564, 89 L.Ed.2d 783 (1986) (recognizing that fears of unjustified liability produce a chilling effect antithetical to First Amendment's protection of speech). Thus, like strict liability, liability upon notice has a chilling effect on the freedom of Internet speech.

        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. In light of the vast amount of speech communicated through interactive computer services, these notices could produce an impossible burden for service providers, who would be faced with ceaseless choices of suppressing controversial speech or sustaining prohibitive liability. 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 finally contends that the interpretive canon favoring retention of common law principles unless Congress speaks directly to the issue counsels a restrictive reading of the

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        The decision cited by Zeran, United States v. Texas, also recognized that abrogation of common law principles is appropriate when a contrary statutory purpose is evident. Id. This is consistent with the Court's earlier cautions against courts' application of the canon with excessive zeal: " 'The rule that statutes in derogation of the common law are to be strictly construed does not require such an adherence to the letter as would defeat an obvious legislative purpose or lessen the scope plainly intended to be given to the measure.' " Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783, 72 S.Ct. 1011, 1014, 96 L.Ed. 1294 (1952) (quoting Jamison v. Encarnacion, 281 U.S. 635, 640, 50 S.Ct. 440, 442, 74 L.Ed. 1082 (1930)); cf. Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 110-11, 111 S.Ct. 2166, 2170-71, 115 L.Ed.2d 96 (1991) (statute need not expressly delimit manner in which common law principle is abrogated). Zeran's argument flies in the face of this warning. As explained above, interpreting § 230 to leave distributor liability in effect would defeat the two primary purposes of the statute and would certainly "lessen the scope plainly intended" by Congress' use of the term "publisher."

        Section 230 represents the approach of Congress to a problem of national and international dimension. The Supreme Court underscored this point in Reno v. ACLU, finding that the Internet allows "tens of millions of people to communicate with one another and to access vast amounts of information from around the world. [It] is 'a unique and wholly new medium of worldwide human communication.' " --- U.S. at ----, 117 S.Ct. at 2334 (citation omitted). Application of the canon invoked by Zeran here would significantly lessen Congress' power, derived from the Commerce Clause, to act in a field whose international character is apparent. While Congress allowed for the enforcement of "any State law that is consistent with [ § 230]," 47 U.S.C. § 230(d)(3), it is equally plain that Congress' desire to promote unfettered speech on the Internet must supersede conflicting common law causes of action. Section 230(d)(3) continues: "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." With respect to federal-state preemption, the Court has advised: "[W]hen Congress has 'unmistakably ... ordained,' that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall. The result is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." Jones v. Rath Packing Co., 430 U.S. 519, 525, 97 S.Ct. 1305, 1309, 51 L.Ed.2d 604 (1977) (citations omitted). Here, Congress' command is explicitly stated. Its exercise of its commerce power is clear and counteracts the caution counseled by the interpretive canon favoring retention of common law principles.

III.

        The CDA was signed into law and became effective on February 8, 1996. Zeran did not file his complaint until April 23, 1996. Zeran contends that even if § 230 does bar the type of claim he brings here, it cannot be applied retroactively to bar an action arising from AOL's alleged misconduct prior to the CDA's enactment. We disagree. Section 230 applies by its plain terms to complaints brought after the CDA became effective. As noted in Part IIB, the statute provides, 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." 47 U.S.C. § 230(d)(3).

        Initially, it is doubtful that a retroactivity issue is even presented here. Retroactivity concerns arise when a statute applies to conduct predating its enactment. Section 230 does not directly regulate the activities of interactive computer service providers like AOL. Instead, § 230 is addressed only to the bringing of a cause of action. Here, Zeran

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        Even if this were a case implicating the application of a federal statute to pre-enactment events, the Supreme Court's Landgraf framework would nevertheless require § 230's application to Zeran's claims. Landgraf instructs us first "to determine whether Congress has expressly prescribed the statute's proper reach." Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 1505, 128 L.Ed.2d 229 (1994). This case can be resolved at this first step. In § 230(d)(3), Congress clearly expressed its intent that the statute apply to any complaint instituted after its effective date, regardless of when the relevant conduct giving rise to the claims occurred. Other circuits have interpreted similar statutory language to clearly express Congress' intent that the relevant statutes apply to bar new actions under statutorily specified conditions. See Wright v. Morris, 111 F.3d 414, 418 (6th Cir.1997) (holding language "No action shall be brought ...," 42 U.S.C. § 1997e(a), to "expressly govern[ ] the bringing of new actions"), cert. denied, --- U.S. ----, 118 S.Ct. 263, 139 L.Ed.2d 190 (1997); Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir.1996) (holding language "In no event shall a prisoner bring a civil action or appeal a judgment ...," 28 U.S.C. § 1915(g), to govern the bringing of new actions or filing of new appeals).

        If we were to find a directive as plain as § 230(d)(3) to be ambiguous as to Congress' intent, we would be announcing a new superclear-statement condition for the retroactive operation of statutes. Such a jurisprudential shift would be both unwise and contrary to the Court's admonitions in Landgraf: "Retroactivity provisions often serve entirely benign and legitimate purposes, whether to respond to emergencies, to correct mistakes, to prevent circumvention of a new statute in the interval immediately preceding its passage, or simply to give comprehensive effect to a new law Congress considers salutary." 511 U.S. at 267-68, 114 S.Ct. at 1498. Here, Congress decided that free speech on the Internet and self-regulation of offensive speech were so important that § 230 should be given immediate, comprehensive effect.

        There finally is a significant contrast between statutes that impose new liabilities for already-completed conduct and statutes that govern litigants' access to courts. For example, courts often apply intervening statutes that restrict a court's jurisdiction. See Landgraf, 511 U.S. at 274, 114 S.Ct. at 1501-02. Section 230 neither imposes any new liability on Zeran nor takes away any rights acquired under prior law. No person has a vested right in a nonfinal tort judgment, much less an unfiled tort claim. Hammond v. United States, 786 F.2d 8, 12 (1st Cir.1986). Furthermore, Zeran cannot point to any action he took in reliance on the law prior to § 230's enactment. Because § 230 has no untoward retroactive effect, even the presumption against statutory retroactivity absent an express directive from Congress is of no help to Zeran here.

IV.

        For the foregoing reasons, we affirm the judgment of the district court.

        AFFIRMED.

---------------

1 Zeran maintains that AOL made it impossible to identify the original party by failing to maintain adequate records of its users. The issue of AOL's record keeping practices, however, is not presented by this appeal.

2 Section 230 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 service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions." 47 U.S.C. § 230(e)(2). The term"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." Id. § 230(e)(3). The parties do not dispute that AOL falls within the CDA's "interactive computer service" definition and that the unidentified third party who posted the offensive messages here fits the definition of an "information content provider."

992 F.Supp. 44 (1998)

No. CIV.A. 97-1968 PLF.

April 22, 1998.

[45] [46] William Alden McDaniel, Jr., McDaniel & Marsh, Baltimore, MD, for Plaintiffs.

Jonathan Walker Emord, Emord & Assoc., P.C., Washington, DC, for Matt Drudge.

Patrick Joseph Carome, John Adolphus Payton, Jr., Wilmer, Cutler & Pickering, Washington, DC, for America Online, Inc.

OPINION

PAUL L. FRIEDMAN, District Judge.

This is a defamation case revolving around a statement published on the Internet by defendant Matt Drudge. On August 10, 1997, the following was available to all having access to the Internet:

The DRUDGE REPORT has learned that top GOP operatives who feel there is a double-standard of only reporting republican shame believe they are holding an ace card: New White House recruit Sidney Blumenthal has a spousal abuse past that has been effectively covered up.

The accusations are explosive.

There are court records of Blumenthal's violence against his wife, one influential republican, who demanded anonymity, tells the DRUDGE REPORT.

If they begin to use [Don] Sipple and his problems against us, against the Republican Party ... to show hypocrisy, Blumenthal would become fair game. Wasn't it Clinton who signed the Violence Against Women Act?

[There goes the budget deal honeymoon.] One White House source, also requesting anonymity, says the Blumenthal wife-beating allegation is a pure fiction that has been created by Clinton enemies. [The First Lady] would not have brought him in if he had this in his background, assures the wellplaced staffer. This story about Blumenthal has been in circulation for years.

Last month President Clinton named Sidney Blumenthal an Assistant to the President as part of the Communications Team. He's brought in to work on communications strategy, special projects themeing — a newly created position.

Every attempt to reach Blumenthal proved unsuccessful.

Complaint, Ex. 4.

Currently before this Court are a motion for summary judgment filed by defendant America Online, Inc. ("AOL") and a motion to dismiss or transfer for lack of personal jurisdiction filed by defendant Matt Drudge. Upon consideration of the papers filed by the parties and the oral arguments of counsel, the Court concludes that AOL's motion should be granted and Drudge's motion should be denied.

I. BACKGROUND

Plaintiffs Sidney Blumenthal and Jacqueline Jordan Blumenthal are citizens of the District of Columbia and have continuously lived in the District since 1985. Complaint ¶¶ 1-2, 12. Sidney Blumenthal works in the White House as an Assistant to the President of the United States. His first day of work as Assistant to the President was Monday, August 11, 1997, the day after the publication of the alleged defamatory statement. Jacqueline Jordan Blumenthal, Sidney Blumenthal's wife, also works in the White House as Director of the President's Commission On White House Fellowships. Complaint ¶¶ 13, 16-17.

Defendant Matt Drudge, a Takoma Park, Maryland native, is a resident of the State of California, where he has lived continuously since 1987. Complaint, Ex. 8; Drudge Motion to Dismiss ("Drudge Motion"), Declaration [47] of Matt Drudge ("Drudge Decl. I") ¶ 2.^[1] In early 1995, defendant Drudge created an electronic publication called the Drudge Report, a gossip column focusing on gossip from Hollywood and Washington, D.C. Transcript of March 11, 1998 Motions Hearing ("Hearing Tr.") at 41. Mr. Drudge's base of operations for writing, publishing and disseminating the Drudge Report has been an office in his apartment in Los Angeles, California. Drudge Decl. I ¶¶ 2-4.

Access to defendant Drudge's world wide web site is available at no cost to anyone who has access to the Internet at the Internet address of "www.drudgereport.com." Drudge Decl. I ¶ 9. The front page of the web site contains the logo "Drudge Report." Defendant Drudge has also placed a hyperlink on his web site that, when activated, causes the most recently published edition of the Drudge Report to be displayed. Id.^[2] The web site also contains numerous hyperlinks to other on-line news publications and news articles that may be of interest to readers of the Drudge Report. Id. In addition, during the time period relevant to this case, Drudge had developed a list of regular readers or subscribers to whom he e-mailed each new edition of the Drudge Report. Drudge Decl. I ¶¶ 6-7. By March 1995, the Drudge Report had 1,000 e-mail subscribers, Drudge Decl. I ¶ 8; and plaintiffs allege that by 1997 Drudge had 85,000 subscribers to his e-mail service. Complaint ¶ 47.

In late 1996, defendant Drudge entered into a six-month licensing agreement with the publisher of "Wired" magazine. Under the agreement, the publisher of "Wired" had the right to receive and display future editions of the Drudge Report in "Hotwired," a new electronic Internet publication. In exchange, defendant Drudge received a bi-weekly royalty payment. In addition to the publication of the Drudge Report in "Hotwired," defendant Drudge continued to distribute each new edition via e-mail to his subscribers and via his world wide web site. Drudge Decl. I ¶¶ 11-12.

In late May or early June of 1997, at approximately the time when the "Wired" licensing agreement expired, defendant Drudge entered into a written license agreement with AOL.^[3] The agreement made the Drudge Report available to all members of AOL's service for a period of one year. In exchange, defendant Drudge received a flat monthly "royalty payment" of $3,000 from AOL. During the time relevant to this case, defendant Drudge has had no other source of income. Drudge Decl. I ¶¶ 13-14. Under the licensing agreement, Drudge is to create, edit, update and "otherwise manage" the content of the Drudge Report, and AOL may "remove content that AOL reasonably determine[s] to violate AOL's then standard terms of service." AOL Mem. at 7; see Exhibit C to Licensing Agreement ¶ I, Ex. A to Jennings Decl. Drudge transmits new editions of the Drudge Report by e-mailing them to AOL. AOL then posts the new editions on the AOL service. AOL Mem., Declaration of Matt Drudge ("Drudge Decl. II") ¶ 17; AOL Mem. at 9. Drudge also has continued to distribute each new edition of the Drudge Report via e-mail and his own web site. Drudge Decl. I ¶ 16; Hearing Tr. at 41-42.

Late at night on the evening of Sunday, August 10, 1997 (Pacific Daylight Time), defendant Drudge wrote and transmitted the edition of the Drudge Report that contained the alleged defamatory statement about the Blumenthals. Drudge transmitted the report from Los Angeles, California by e-mail to his direct subscribers and by posting both a headline and the full text of the Blumenthal story on his world wide web site. He then [48] transmitted the text but not the headline to AOL, which in turn made it available to AOL subscribers. Drudge Decl. I ¶¶ 15, 16, 19.^[4]

After receiving a letter from plaintiffs' counsel on Monday, August 11, 1997, Complaint, Ex. 6, defendant Drudge retracted the story through a special edition of the Drudge Report posted on his web site and e-mailed to his subscribers. Drudge Decl. I ¶¶ 17-19. At approximately 2:00 a.m. on Tuesday, August 12, 1997, Drudge e-mailed the retraction to AOL which posted it on the AOL service. Drudge Decl. I ¶ 19; AOL Mem. at 12.^[5] Defendant Drudge later publicly apologized to the Blumenthals. Drudge Decl. I ¶ 20; Complaint, Ex. 6 (Howard Kurtz, Blumenthals Get Apology, Plan Lawsuit: Web Site Retracts Story on Clinton Aide, Washington Post, August 11, 1997, at A 11).

II. AOL's MOTION FOR SUMMARY JUDGMENT

A. The Internet

"The Internet is a unique and wholly new medium of worldwide human communication." Reno v. American Civil Liberties Union, ___ U.S. ___, ___, 117 S.Ct. 2329, 2334, 138 L.Ed.2d 874 (1997).^[6] It enables people to communicate with one another with unprecedented speed and efficiency and is rapidly revolutionizing how people share and receive information. As Congress recognized in the Communications Decency Act of 1996, "the rapidly developing array of Internet and other interactive computer services ... represent an extraordinary advance in the availability of educational and informational resources to our citizens." 47 U.S.C. § 230(a)(1). As one court has noted:

The Internet has no territorial boundaries. To paraphrase Gertrude Stein, as far as the Internet is concerned, not only is there perhaps "no there there," the "there" is everywhere where there is Internet access. When business is transacted over a computer network via a Web-site accessed by a computer in Massachusetts, it takes place as much in Massachusetts, literally or figuratively, as it does anywhere.

Digital Equipment Corp. v. Altavista Technology, Inc., 960 F.Supp. 456, 462 (D.Mass. 1997).^[7]

[49] The near instantaneous possibilities for the dissemination of information by millions of different information providers around the world to those with access to computers and thus to the Internet have created ever-increasing opportunities for the exchange of information and ideas in "cyberspace."^[8] This information revolution has also presented unprecedented challenges relating to rights of privacy and reputational rights of individuals, to the control of obscene and pornographic materials, and to competition among journalists and news organizations for instant news, rumors and other information that is communicated so quickly that it is too often unchecked and unverified. Needless to say, the legal rules that will govern this new medium are just beginning to take shape.

B. Communications Decency Act of 1996, Section 230

In February of 1996, Congress made an effort to deal with some of these challenges in enacting the Communications Decency Act of 1996. While various policy options were open to the Congress, it chose to "promote the continued development of the Internet and other interactive computer services and other interactive media" and "to preserve the vibrant and competitive free market" for such services, largely "unfettered by Federal or State regulation...." 47 U.S.C. § 230(b)(1) and (2). Whether wisely or not, it made the legislative judgment to effectively immunize providers of interactive computer services from civil liability in tort with respect to material disseminated by them but created by others. In recognition of the speed with which information may be disseminated and the near impossibility of regulating information content, Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television and radio stations, all of which may be held liable for publishing or distributing obscene or defamatory material written or prepared by others. While Congress could have made a different policy choice, it opted not to hold interactive computer services liable for their failure to edit, withhold or restrict access to offensive material disseminated through their medium.

Section 230(c) of the Communications Decency Act of 1996 provides:

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). The statute goes on to define the term "information content provider" 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." 47 U.S.C. § 230(e)(3). In view of this statutory language, plaintiffs' argument that the Washington Post would be liable if it had done what AOL did here — "publish Drudge's story without doing anything whatsoever to edit, verify, or even read it (despite knowing what Drudge did for a living and how he did it)," Plaintiff's Memorandum of Points and Authorities in Opposition to Defendant America Online, Inc.'s Motion for Summary Judgment ("Pls.' Mem.") at 1 — has been rendered irrelevant by Congress.

Plaintiffs concede that AOL is a "provider ... of an interactive computer service" [50] for purposes of Section 230, see Complaint ¶ 94; Pls.' Mem. at 3, and that if AOL acted exclusively as a provider of an interactive computer service it may not be held liable for making the Drudge Report available to AOL subscribers. See 47 U.S.C. § 230(c)(1). They also concede that Drudge is an "information content provider" because he wrote the alleged defamatory material about the Blumenthals contained in the Drudge Report. Pls.' Mem. at 4. While plaintiffs suggest that AOL is responsible along with Drudge because it had some role in writing or editing the material in the Drudge Report, they have provided no factual support for that assertion. Indeed, plaintiffs affirmatively state that "no person, other than Drudge himself, edited, checked, verified, or supervised the information that Drudge published in the Drudge Report." Plaintiffs' Statement of Material Facts ("Pls.' Stmt.") ¶ 1(ii). It also is apparent to the Court that there is no evidence to support the view originally taken by plaintiffs that Drudge is or was an employee or agent of AOL, and plaintiffs seem to have all but abandoned that argument.^[9]

AOL acknowledges both that Section 230(c)(1) would not immunize AOL with respect to any information AOL developed or created entirely by itself and that there are situations in which there may be two or more information content providers responsible for material disseminated on the Internet — joint authors, a lyricist and a composer, for example. Defendant America Online, Inc.'s Reply Memorandum In Further Support of Its Motion for Summary Judgment ("AOL Reply Mem.") at 10; Hearing Tr. at 12. While Section 230 does not preclude joint liability for the joint development of content, AOL maintains that there simply is no evidence here that AOL had any role in creating or developing any of the information in the Drudge Report. The Court agrees. It is undisputed that the Blumenthal story was written by Drudge without any substantive or editorial involvement by AOL. Drudge Decl. II ¶¶ 46-47. AOL was nothing more than a provider of an interactive computer service on which the Drudge Report was carried, and Congress has said quite clearly that such a provider shall not be treated as a "publisher or speaker" and therefore may not be held liable in tort. 47 U.S.C. § 230(c)(1).

As Chief Judge Wilkinson recently wrote for the Fourth Circuit:

By its plain language, § 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.

The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.

* * * * * *

[51] None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. While Congress acted to keep government regulation of the Internet to a minimum, it also found it to be the policy of the United States "to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking and harassment by means of computer." Id. § 230(b)(5). Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages.

Zeran v. America Online, Inc., 129 F.3d 327, 330-31 (4th Cir.1997). The court in Zeran has provided a complete answer to plaintiffs' primary argument, an answer grounded in the statutory language and intent of Section 230.^[10]

Plaintiffs make the additional argument, however, that Section 230 of the Communications Decency Act does not provide immunity to AOL in this case because Drudge was not just an anonymous person who sent a message over the Internet through AOL. He is a person with whom AOL contracted, whom AOL paid $3,000 a month — $36,000 a year, Drudge's sole, consistent source of income — and whom AOL promoted to its subscribers and potential subscribers as a reason to subscribe to AOL. Pls.' Mem. at 2, 7. Furthermore, the license agreement between AOL and Drudge by its terms contemplates more than a passive role for AOL; in it, AOL reserves the "right to remove, or direct [Drudge] to remove, any content which, as reasonably determined by AOL ... violates AOL's then-standard Terms of Service...." Jennings Decl. ¶ 16 (quoting Exhibit C to Licensing Agreement ¶ I, Ex. A to Jennings Decl.). By the terms of the agreement, AOL also is "entitled to require reasonable changes to ... content, to the extent such content will, in AOL's good faith judgment, adversely affect operations of the AOL network." Id.

In addition, shortly after it entered into the licensing agreement with Drudge, AOL issued a press release making clear the kind of material Drudge would provide to AOL subscribers — gossip and rumor — and urged potential subscribers to sign onto AOL in order to get the benefit of the Drudge Report. The press release was captioned: "AOL Hires Runaway Gossip Success Matt Drudge." Complaint, Ex. I. It noted that "[m]averick gossip columnist Matt Drudge has teamed up with America Online," and stated: "Giving the Drudge Report a home on America Online (keyword: Drudge) opens up the floodgates to an audience ripe for Drudge's brand of reporting.... AOL has made Matt Drudge instantly accessible to members who crave instant gossip and news breaks." Id. Why is this different, the Blumenthals suggest, from AOL advertising and promoting a new purveyor of child pornography or other offensive material? Why should AOL be permitted to tout someone as a gossip columnist or rumor monger who will make such rumors and gossip "instantly accessible" to AOL subscribers, and then claim immunity when that person, as might be anticipated, defames another?

If it were writing on a clean slate, this Court would agree with plaintiffs. AOL has certain editorial rights with respect to the content provided by Drudge and disseminated by AOL, including the right to require changes in content and to remove it; and it has affirmatively promoted Drudge as a new source of unverified instant gossip on AOL. Yet it takes no responsibility for any damage he may cause. AOL is not a passive conduit like the telephone company, a common carrier with no control and therefore no responsibility for what is said over the telephone wires.^[11] Because it has the fight to exercise editorial control over those with whom it contracts and whose words it disseminates, it would seem only fair to hold AOL to the liability standards applied to a publisher or, at least, like a book store owner or library, to the liability standards applied to a distributor.^[12] [52] But Congress has made a different policy choice by providing immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others. In some sort of tacit quid pro quo arrangement with the service provider community, Congress has conferred immunity from tort liability as an incentive to Internet service providers to self-police the Internet for obscenity and other offensive material, even where the self-policing is unsuccessful or not even attempted.

In Section 230(c)(2) of the Communications Decency Act, Congress provided:

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 (1).

47 U.S.C. § 230(c)(2).^[13] As the Fourth Circuit stated in Zeran: "Congress enacted § 230 to remove ... disincentives to self-regulation.... Fearing that the specter of liability would ... deter service providers from blocking and screening offensive material .... § 230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and selfregulatory functions." Zeran v. America Online, Inc., 129 F.3d at 331.^[14]

Any attempt to distinguish between "publisher" liability and notice-based "distributor" liability and to argue that Section 230 was only intended to immunize the former would be unavailing. Congress made no distinction between publishers and distributors in providing immunity from liability. As the Fourth Circuit has noted: "[I]f computer service providers were subject to distributor liability, they would face potential liability each time they receive notice of a potentially defamatory statement — from any party, concerning any message," and such notice-based liability "would deter service providers from regulating the dissemination of offensive material over their own services" by confronting them with "ceaseless choices of suppressing controversial speech or sustaining prohibitive liability" — exactly what Congress intended to insulate them from in Section 230. Zeran v. America Online, Inc., 129 F.3d at 333. C.f. Cubby, Inc. v. CompuServe, Inc., 776 F.Supp. 135, 139-40 (S.D.N.Y.1991) (decided before enactment of Communications Decency Act). While it appears to this Court that AOL in this case has taken advantage of all [53] the benefits conferred by Congress in the Communications Decency Act, and then some, without accepting any of the burdens that Congress intended, the statutory language is clear: AOL is immune from suit, and the Court therefore must grant its motion for summary judgment.^[15]

III. DRUDGE'S MOTION TO DISMISS FOR LACK OF PERSONAL JURISDICTION

Defendant Drudge has moved, pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, for an order dismissing this action for lack of personal jurisdiction or, alternatively, to transfer it to the United States District Court for the Central District of California. In order for this Court to maintain personal jurisdiction over a nonresident defendant, jurisdiction must be proper under the District of Columbia long-arm statute and consistent with the demands of due process. United States v. Ferrara, 54 F.3d 825, 828 (D.C.Cir.1995); Crane v. Carr, 814 F.2d 758, 762 (D.C.Cir.1987). Plaintiffs have the burden of establishing that this Court has personal jurisdiction over defendant Drudge and alleging specific facts upon which personal jurisdiction may be based. See Cellutech Inc. v. Centennial Cellular Corp., 871 F.Supp. 46, 48 (D.D.C.1994).

A. D.C. Long-Arm Statute

The only provision of the District of Columbia long-arm statute that is relevant to this case is Section 13-423(a)(4), which provides:

A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person's ... causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the District of Columbia.

D.C.Code § 13-423(a)(4). In order to establish personal jurisdiction under this provision a plaintiff must make a prima facie showing that (1) plaintiff suffered a tortious injury in the District of Columbia; (2) the injury was caused by the defendant's act or omission outside of the District of Columbia; and (3) defendants had one of three enumerated contacts with the District of Columbia. Trager v. Berrie, 593 F.Supp. 223, 225 (D.D.C.1984); Akbar v. New York Magazine Co., 490 F.Supp. 60, 63 (D.D.C.1980). Plaintiffs must satisfy all three requirements and also establish minimum contacts within the confines of due process before the Court can exercise personal jurisdiction over defendant Drudge.

It is undisputed that the Drudge Report transmission in question was written, published and transmitted by defendant Drudge from his computer located in Los Angeles, California. It is also undisputed that the tortious injury caused by defendant Drudge's act of transmitting the report was suffered by the Blumenthals in the District of Columbia. The only question before this Court therefore is whether defendant [54] Drudge (1) regularly does or solicits business in the District of Columbia, or (2) derives substantial revenue from goods used or consumed or services rendered in the District, or (3) engages in any other persistent course of conduct here. See D.C.Code § 13-423(a)(4).

Justice Ginsburg in Crane v. Carr has described these as the "plus factors," factors that demonstrate some "reasonable connection" between the jurisdiction in which the court sits "separate from and in addition to" the injury caused in the jurisdiction. Crane v. Carr, 814 F.2d at 762. The "plus factor" or factors need not be related to the act that caused the injury; all that is required is "some other reasonable connection between the defendant and the forum." Id. at 762-63. The "plus factor" does not itself provide the basis for jurisdiction (the injury does) "but it does serve to filter out cases in which the inforum impact is an isolated event and the defendant otherwise has no, or scant, affiliation with the forum." Id. at 763. The question here is whether plaintiffs have shown a "persistent course of conduct" by defendant Drudge in the District of Columbia or other reasonable connections between the District and Drudge besides the alleged defamatory statement and the alleged injury.

Plaintiffs point out that the Drudge Report has been regularly transmitted over the Internet to Drudge's subscribers and repeatedly posted on Drudge's web site, where it has been available 24 hours a day to District residents; that Drudge personally maintains a list of e-mail addresses, which enables him to distribute the Drudge Report to anyone who requests it, including e-mail addresses in the District of Columbia; and that he has solicited contributions and collected money from persons in the District of Columbia who read the Drudge Report. Plaintiff's Opposition to Defendant Drudge's Motion to Dismiss ("Pls.' Opp'n") at 19-21. In addition, they state that Drudge has traveled to the District of Columbia twice, including once for a C-SPAN interview that was for the express purpose of promoting the Drudge Report. Pls.' Opp'n at 20. Plaintiffs also note, and defendant Drudge admits, that Drudge has been in contact (via e-mail, telephone and the U.S. mail) with District residents who supply him with gossip. Hearing Tr. at 51, 61-63; Drudge Decl. I ¶¶ 25, 27, 31.

Defendant Drudge argues that he has not specifically targeted persons in the District of Columbia for readership, largely because of the non-geographic nature of communicating via the Internet. For example, while it is true that subscribers to the Drudge Report include District residents, generally the only information about those subscribers available to Drudge is an e-mail address — an address that, unlike a postal address or even a telephone number, typically provides no geographic information. For instance, if Jane Doe from the District of Columbia subscribes to the Drudge Report, it is most likely sent to an e-mail address such as "jane-doe@aol.com," and Drudge has no idea where Jane Doe lives or receives the Report. The same is true for on-line browsers who read the Drudge Report, since screen names used to browse the web also are not generally identified by geographic location. Defendant Drudge also claims that he has never advertised the Drudge Report column or web site in physical locations or in local newspapers in the District of Columbia. Drudge Decl. I ¶¶ 28-30, 33; Hearing Tr. at 42-43.

Defendant Drudge also argues that his travel to Washington, D.C. is not sufficient to establish a persistent course of conduct in the District of Columbia because his contacts have been so infrequent and sporadic that they are simply not enough to be viewed as "persistent." As for his solicitation of contributions in the District of Columbia, Drudge claims that his solicitation was directed to all readers of the Drudge Report and not specifically aimed at the District. Furthermore, from that appeal Drudge received only approximately $250 from fewer than fifteen persons in the District of Columbia. Drudge Decl. I ¶ 24; Hearing Tr. at 49-50. The Court concludes that plaintiffs have the better of the argument; defendant Drudge has had sufficient contacts with the District of Columbia to warrant the exercise of personal jurisdiction.

The legal questions surrounding the exercise of personal jurisdiction in "cyberspace" are relatively new, and different courts have [55] reached different conclusions as to how far their jurisdiction extends in cases involving the Internet. Generally, the debate over jurisdiction in cyberspace has revolved around two issues: passive web sites versus interactive web sites, and whether a defendant's Internet-related contacts with the forum combined with other non-Internet related contacts are sufficient to establish a persistent course of conduct. As one court has explained:

At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper. At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise [of] personal jurisdiction. The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.

Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D.Pa.1997).

In Heroes, Inc. v. Heroes Foundation, Judge Flannery found that he did not need to decide whether the defendant's home page by itself subjected the defendant to personal jurisdiction in the District of Columbia because the defendant had substantial non-Internet related contacts with the District that were sufficient under the D.C. long-arm statute. The defendants's home page solicited contributions and provided a toll-free number which browsers used to donate money; the solicitation also appeared in advertisements in the Washington Post. Judge Flannery concluded that these non-Internet related contacts with the District of Columbia, together with the maintenance of a web site constantly available to D.C. residents, constituted a persistent course of conduct that reasonably connected the defendant to the forum. Heroes, Inc. v. Heroes Foundation, 958 F.Supp. 1, 4-5 (D.D.C.1996); see also Telco Communications v. An Apple A Day, 977 F.Supp. 404, 407 (E.D.Va.1997) (posting of web site advertisement solicitation over the Internet, which could be accessed by Virginia residents 24 hours a day, is a persistent course of conduct; two or three press releases rise to the level of regularly doing or soliciting business); Digital Equipment Corp. v. Altavista Technology, Inc., 960 F.Supp. at 467 (maintenance of web site that can be accessed by Massachusetts citizens 24 hours a day coupled with other contacts is persistent course of conduct sufficient to confer personal jurisdiction).^[16] The courts in each of these cases required only a relatively tenuous electronic connection between the creator of a web site and the forum to effect personal jurisdiction, so long as there were sufficient other non-Internet connections.

As noted, many courts have focused on the level of interactivity of a web site in determining whether there was personal jurisdiction. In Cybersell, Inc. v. Cybersell, Inc., the court noted that an interactive web site allows users to "exchange information with the host computer" and concluded that courts must look at the "level of interactivity and [the] commercial nature of the exchange of information that occurs on the Web site to determine if sufficient contacts exist to warrant the exercise of jurisdiction." Cybersell, Inc. v. Cybersell Inc., 130 F.3d 414, 418 (9th Cir.1997) (internal quotation marks omitted). Compare Maritz, Inc. v. Cybergold, Inc., 947 F.Supp. 1328, 1332-33 (E.D.Mo.1996) (exercise of jurisdiction warranted where defendant's interactive web site encouraged browsers to add their address to mailing list that subscribed the user to the service), and Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 [56] F.Supp. at 1122-23 (interactive web site where defendants contracted with 3,000 individuals and seven internet providers in forum state conferred personal jurisdiction), with Bensusan Restaurant Corp. v. King, 937 F.Supp. 295, 299-300 (S.D.N.Y.1996), aff'd, 126 F.3d 25 (2d Cir.1997) (passive web site which only posted information for interested persons who may have accessed the web site not sufficient for exercise of jurisdiction), and Hearst Corporation v. Goldberger, No. 96 Civ. 3620(PKL)(AJP), 1997 WL 97097, at * 15 (S.D.N.Y. Feb. 26, 1997) (no persistent course of conduct because defendant's passive web site only provided information regarding future services).

Under the analysis adopted by these courts, the exercise of personal jurisdiction is contingent upon the web site involving more than just the maintenance of a home page; it must also allow browsers to interact directly with the web site on some level. In addition, there must also be some other non-Internet related contacts between the defendant and the forum state in order for the court to exercise personal jurisdiction. Because the Court finds that defendant Drudge has an interactive web site that is accessible to and used by District of Columbia residents and, in addition, that he has had sufficient non-Internet related contacts with the District of Columbia, the Court concludes that Drudge has engaged in a persistent course of conduct in the District. The exercise of personal jurisdiction over defendant Drudge by this Court therefore is warranted.^[17]

Despite the attempts of Drudge and his counsel to label the Drudge Report as a "passive" web site, the Court finds this characterization inapt. The Drudge Report's web site allows browsers, including District of Columbia residents, to directly e-mail defendant Drudge, thus allowing an exchange of information between the browser's computer and Drudge's host computer. Hearing Tr. at 4243, 61; see Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. at 1124. In addition, browsers who access the website may request subscriptions to the Drudge Report, again by directly e-mailing their requests to Drudge's host computer. In turn, as each new edition of the Drudge Report is created, it is then sent by Drudge to every e-mail address on his subscription mailing list, which includes the e-mail addresses of all browsers who have requested subscriptions by directly e-mailing Drudge through his web site. The constant exchange of information and direct communication that District of Columbia Internet users are able to have with Drudge's host computer via his web site is the epitome of web site interactivity.

Not only is defendant Drudge's web site interactive, the subject matter of the Drudge Report primarily concerns political [57] gossip and rumor in Washington, D.C. Defendant Drudge characterizes himself as the "Thomas Paine of the Internet, ... who is circulating information for the citizenry reporting on [federal] governmental abuses .... and earthquakes...at the White House." Hearing Tr. at 37, 41; see Pls.' Opp'n, Ex. 1. Even though Drudge may not advertise in physical locations or local newspapers in Washington, D.C., the subject matter of the Drudge Report is directly related to the political world of the Nation's capital and is quintessentially "inside the Beltway" gossip and rumor. Drudge specifically targets readers in the District of Columbia by virtue of the subjects he covers and even solicits gossip from District residents and government officials who work here. Drudge Decl. I ¶¶ 27, 31; Hearing Tr. at 61-63.^[18] By targeting the Blumenthals who work in the White House and live in the District of Columbia, Drudge knew that "the primary and most devastating effects of the [statements he made] would be felt" in the District of Columbia. Telco Communications v. An Apple A Day, 977 F.Supp. at 407. He should have had no illusions that he was immune from suit here.

In addition, defendant Drudge also solicited contributions from District residents via the Drudge Report's homepage. While during the time period relevant to this case, defendant Drudge may have received only $250 from fifteen District of Columbia residents from that advertised solicitation, the Drudge Report was always accessible in the District, via AOL and through Drudge's world wide web site, making the advertised solicitation was repeatedly available to District residents.

Defendant Drudge also has had a number of non-Internet related contacts with the District. He sat for an interview with C-SPAN in Washington, D.C. and visited the District of Columbia on at least one other occasion. He also contacts District of Columbia residents via telephone and the U.S. mail in order to collect gossip for the Drudge Report. Drudge Decl. I ¶ 31; Hearing Tr. at 61. These non-Internet related contacts with the District of Columbia, coupled with the interactive nature of Drudge's web site, which particularly focuses on Washington gossip, are contacts that together are sufficient to establish that defendant Drudge engaged in a persistent course of conduct in the District of Columbia.

In sum, the Court concludes that the circumstances presented by this case warrant the exercise of personal jurisdiction under subsection (a)(4) of the District of Columbia long-arm statute because of: (1) the interactivity of the web site between the defendant Drudge and District residents; (2) the regular distribution of the Drudge Report via AOL, e-mail and the world wide web to District residents; (3) Drudge's solicitation and receipt of contributions from District residents; (4) the availability of the web site to District residents 24 hours a day; (5) defendant Drudge's interview with C-SPAN; and (6) defendant Drudge's contacts with District residents who provide gossip for the Drudge Report. The requirements of subsection (a)(4) of the District of Columbia long-arm statute have been satisfied.

B. Due Process

Traditionally, in order to exercise personal jurisdiction over an out-of-state defendant, a court must determine whether the defendant has sufficient minimum contacts with the jurisdiction in which the court sits such that maintenance of a suit does not offend "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). While in the Internet context there must be "something more" than an Internet advertisement alone "to indicate that the defendant purposefully (albeit electronically) directed his activity in a substantial way to the forum state," Cybersell, Inc. v. Cybersell, Inc., 130 F.3d at 414, such that he should "reasonably anticipate being haled into court" there, Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474-75, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985), that test is [58] easily met here. See, e.g., Digital Equipment Corp. v. Altavista Technology, Inc., 960 F.Supp. at 469-70. Because subsection (a)(4) of the long-arm statute does not reach the outer limits of due process, Crane v. Carr, 814 F.2d at 762, and the Court has concluded that there are sufficient "plus factors" to meet the requisites of subsection (a)(4), it follows that there are also sufficient minimum contacts to satisfy due process. Drudge's motion to dismiss or transfer for want of personal jurisdiction therefore will be denied.

SO ORDERED.

[1] Takoma Park, Maryland is a suburb of the District of Columbia.

[2] Through a "hyperlink," a browser may connect to another web site by clicking on the specially highlighted text or images on the initial web site. After clicking on the highlighted text, the browser is then directly taken to that particular web site. Complaint ¶ 35.

[3] According to AOL, it operates "the world's largest interactive computer service. AOL's more than nine million subscribers use the AOL service as a conduit to receive and disseminate vast quantities of information by means of modern connections to AOL's computer network." Memorandum of Points and Authorities in Support of Defendant America Online, Inc.'s Motion for Summary Judgment ("AOL Mem.") at 3; see Declaration of Robert Jennings ("Jennings Decl.") ¶ 4, Exhibit 1 to AOL Mem.

[4] The headline read: "Charge: New White House Recruit Sidney Blumenthal Has Spousal Abuse Past." Complaint, Ex. 2.

[5] AOL later removed the August 10 edition of the Drudge Report from the electronic archive of previous editions of the Drudge Report available to AOL subscribers. AOL Mem. at 13.

[6] "The term `Internet' means the international computer network of both Federal and non-Federal interoperable packet switched data networks." 47 U.S.C. § 230(e)(1). The Internet is "not a physical or tangible entity, but rather a giant network which interconnects innumerable smaller groups of linked computer networks." ACLU v. Reno, 929 F.Supp. 824, 830 (E.D.Pa. 1996), aff'd, ___ U.S. ___, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). The "web" is a "vast decentralized collection of documents containing text, visual images, and even audio clips.... The web is designed to be inherently accessible from every Internet site in the world." Stephen Wilske and Teresa Schiller, International Jurisdiction In Cyberspace: Which States May Regulate The Internet?, 50 FED. COM. L.J. 117, 140 (1997).

[7] It is probably safe to say that more ideas and information are shared on the Internet than in any other medium. But when we try to pin down the location of this exchange, we realize how slippery our notion of the Internet really is. Perhaps this is because "cyberspace" is not a "space" at all. At least not in the way we understand space. It's not located anywhere; it has no boundaries; you can't "go" there. At the bottom, the Internet is really more idea than entity. It is an agreement we have made to hook our computers together and communicate by way of binary impulses and digitized signals sent over telephone wires.

* * * * * *

Risking overstatement only slightly, the Internet represents a brave new world of free speech. The number of people regularly using the Internet is expected to grow to 100 million by the year 2000. Arguably, the Internet will become as prevalent in our daily lives as the printing press, telephone, radio, and television....

[T]he Internet is fundamentally different from traditional forms of mass communication in at least three important respects. First, the Internet is capable of maintaining an unlimited number of information sources, ... Second, the Internet has no "gatekeepers" — no publishers or editors controlling the distribution of information.... Finally, the users of Internet information are also its producers. But every person who taps into the Internet is his [or her] own journalist. In other words, the Internet has shifted the focus of mass communication to the individual ... Never before has it been so easy to circulate speech among so many people.

* * * * * *

John Doe can now communicate with millions of people from the comfort, safety and privacy of his own home. His communication requires minimal investment and minimal time — once the word is written, it is disseminated to a mass audience literally with the touch of a button. Moreover, Internet speakers are not restricted by the ordinary trappings of polite conversation; they tend to speak more freely online.

Bruce W. Sanford and Michael J. Lorenger, Teaching An Old Dog New Tricks: The First Amendment In An Online World, 28 Conn. L.Rev. 1137, 1139-43 (1996).

[8] "`Cyberspace' refers to the interaction of people and businesses over computer networks, electronic bulletin boards, and commercial online services. The largest and most visible manifestation of cyberspace is the Internet...." R. Timothy Muth, Old Doctrines On A New Frontier: Defamation and Jurisdiction In Cyberspace, Wis. LAW. 10, 11 (Sept.1995), available in Westlaw at 68-SEP WILAW 10; see also ACLU v. Reno, 929 F.Supp. at 830-38.

[9] Plaintiffs' Statement of Genuine Issues of Material Facts does not identify any evidence to support their conclusory assertion that there are genuine issues of fact as to whether Drudge was an employee or agent of AOL. See Pls.' Stmt. ¶¶ 3-4, 12. When a party opposing a motion for summary judgment seeks to rebut facts set forth in the movant's Statement of Material Facts by merely citing to allegations in the complaint rather than citing to evidence in the record or providing evidentiary support through affidavits or other competent evidence, those facts may be deemed admitted. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Twist. v. Meese, 854 F.2d 1421, 1424 (D.C.Cir.1988), cert. denied, 490 U.S. 1066, 109 S.Ct. 2066, 104 L.Ed.2d 631 (1989); Glovinsky v. Cohen, 983 F.Supp. 1, 2-3 (D.D.C.1997); United States v. BCCI Holdings (Luxemborg). S.A., 977 F.Supp. 1, 6 (D.D.C.1997); see also Rule 56(e), Fed.R.Civ.P. and Local Rule 108(h).

[10] See infra n. 13.

[11] See David J. Goldstone, A Funny Thing Happened On The Way To the Cyber Forum: Public vs. Private in Cyberspace Speech, 69 U. COLO. L. REV. 1, 40-48 (1998).

[12] See Douglas B. Luffman, Defamation Liability For On-Line Services: The Sky Is Not Falling, 65 GEO. WASH. L. REV. 1071, 1083-85 (1997); David R. Sheridan, Zeran v. AOL And The Effect Of Section 230 Of The Communications Decency Act Upon Liability for Defamation On The Internet, 61 ALB. L. REV. 147, 167-77 (1997).

[13] While this provision of the statute primarily addresses obscenity and violent material, it also references material that is "otherwise objectionable," a broad enough category to cover defamatory statements as well. Indeed, the legislative history makes clear that one of the primary purposes of Section 230 was to overrule the Stratton Oakmont decision of a New York State court that was itself a defamation case in which Prodigy Services, an Internet computer service like AOL, was held liable as a publisher of defamatory material. See Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y.Sup.Ct. May 24, 1995). As the Conference Report stated:

One of the specific purposes of this section is to overrule Stratton Oakmont v. Prodigy and any other similar decisions which have treated such providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material. The conferees believe that such decisions create serious obstacles to the important federal policy of empowering parents to determine the content of communications their children receive through interactive computer services.

H.R. CONF. REP. No. 104-458, at 194 (1996).

[14] 47 U.S.C. § 230(b)(4) provides:

It is the policy of the United States 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.

[15] With respect to the portions of AOL's motion for summary judgment that do not depend on Section 230, plaintiffs have made no attempt to refute AOL's showing that it cannot be liable for Drudge's alleged oral statements to the press, which are the subject of Counts 9 through 20 of their complaint, because AOL had no role whatsoever in the formulation or dissemination of those statements and Drudge did not act on AOL's behalf in allegedly making them. See AOL Mem. at 41-42. Plaintiffs' only response to AOL on these points was a suggestion that they would like to take discovery. But plaintiffs have failed to make even the rudimentary showing required by Rule 56(f) of the Federal Rules of Civil Procedure that, without discovery, they are unable to "present by affidavit facts essential to justify [their] opposition [to summary judgment]." See Rule 56(f), Fed.R.Civ.P.; see also First Chicago Int'l v. United Exchange Co., Ltd., 836 F.2d 1375, 1380-81 (D.C.Cir.1988); Novecon, Ltd. v. Bulgarian-American Enterprise Fund, 977 F.Supp. 52, 54 (D.D.C.1997).

Plaintiffs have also effectively conceded that AOL is entitled to summary judgment with respect to the first four counts of the complaint, which relate solely to an allegedly defamatory headline that appeared on Drudge's own web site but did not appear on the AOL service. See AOL Mem. at 17 n. 11; Statement of Material Facts As To Which Defendant America Online, Inc. Contends There Is No Genuine Issue ("AOL Facts") ¶ 72. See supra at ___ and n. 4.

[16] The provisions of the long-arm statutes involved in Telco and Digital Equipment (Massachusetts long-arm statute, M.G.L. ch. 223A § 3(d); Virginia long-arm statute, Section 8.01-328.1(a)(4)) are quite similar to if not exactly the same as subsection (a)(4) of the District of Columbia long-arm statute.

[17] Defendant Drudge's reliance on this Court's decision in Mallinckrodt v. Sonus Pharmaceuticals, Inc. is misplaced. In Mallinckrodt, this Court held that an "AOL transmission from Seattle to Virginia, which was subsequently posted on an AOL electronic bulletin board and may have been accessed by AOL subscribers in the District of Columbia, cannot be construed as `transacting business' in the District of Columbia" under subsection (a)(1) of the long-arm statute, D.C.Code § 13-423(a)(1). Mallinckrodt v. Sonus Pharmaceuticals, Inc., 989 F.Supp. 265, 271 (D.D.C.1998). The defendant posted a message that was not sent to or from the District, the content of the message did not concern persons residing in the District or incorporated in the District, neither plaintiffs nor defendants worked or lived in the District, and the defendant's electronic bulletin board was in no way interactive, as is the case with the Drudge Report. This Court, therefore found that the defendant had no reasonable connection to the District, even though a person from the District may have read the message, because it had not engaged in "an act purposefully or foreseeably aimed at the District of Columbia." Id. The defendant's electronic bulletin board message therefore did not "constitute transacting business within the District of Columbia for purposes of [subsection (a)(1)] of the long-arm statute." Id. (internal quotations omitted).

With respect to subsection (a)(4) of the long-arm statute, the Court in Mallinckrodt concluded that plaintiffs fared no better, primarily because plaintiffs did not live or work in the District of Columbia and therefore did not "suffer[] any injury in the District of Columbia that they could not have suffered or did not suffer in any state in the nation where someone may have read the [AOL] message and reacted negatively toward plaintiffs." Mallinckrodt v. Sonus Pharmaceuticals, Inc., 989 F.Supp. 265, 1998 WL 6546 at *8. The Blumenthals, by contrast, do live and work in the District of Columbia and suffered injury in the District. Furthermore, in contrast to the facts in Mallinckrodt, the Court finds that in this case defendant has engaged in a persistent course of conduct in the District of Columbia.

[18] Drudge is not a reporter, a journalist or a newsgatherer. He is, as he himself admits, simply a purveyor of gossip. See Complaint, Exs. 6, 8. His argument that he should benefit from the "news gathering exception" to subsection (a)(4) of the long-arm statute merits no serious consideration. Cf. Moncrief v. Lexington Herald-Leader Co., 807 F.2d 217, 221-22 (D.C.Cir.1986).

51 Cal.Rptr.3d 55 (2006)
40 Cal.4th 33
146 P.3d 510

No. S122953.

Supreme Court of California.

November 20, 2006.

[57] Law Offices of Christopher E. Grell, Christopher E. Grell, Richard R. Rescho, Oakland, and Ian P. Dillon, San Francisco, for Plaintiffs and Appellants.

Mark Goldowitz, Berkeley, Jesper Rasmussen, Oakland; Piper Rudnick, Roger Myers, Lisa Sitkin, Emeryville, and Katherine Keating, San Francisco, for Defendant and Respondent.

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

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

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

Wilmer Cutler Pickering Hale and Dorr, Patrick J. Carome, Samir Jain, Washington, DC, 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, [58] 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.

[56] CORRIGAN, J.

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.

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. Terry Polevoy, operated Web sites [59] 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 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, 124 Cal.Rptr.2d 507, 52 P.3d 685.) 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 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]

[60] 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. We agree with the Zeran court that Congress did not intend to create such an exception to section 230 immunity.^[6]

[61] 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.

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 [62] 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 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," 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), & corns, c, d, & e, pp. 232-234; see also Osmond v. EWAP, Inc. (1984) 153 Cal.App.3d 842, 852-854, 200 Cal.Rptr. 674.)^[8] Zeran contended that because Congress mentioned only the [63] 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 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.)

In support of his argument for notice-based liability, 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, 113 S.Ct. 1631, 123 L.Ed.2d 245.) However, the court reasoned that Congress had spoken directly by employing the term "publisher," and that preserving "distributor" liability would defeat the [64] 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, 72 S.Ct. 1011, 96 L.Ed. 1294.)

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, 104 Cal.Rptr.2d 772, 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, 104 Cal. Rptr.2d 772.) The Kathleen R. court held that the state law causes of action were barred by section 230. (Kathleen R., at p. 692, 104 Cal.Rptr.2d 772.) It cited Zeran for the rule that section 230(c)(1) immunizes both "publisher[s]" and "distributor[s]." (Kathleen R, at p. 695, fn. 3, 104 Cal.Rptr.2d 772.) It also agreed with the Zeran court's analysis of congressional intent. (Id. at p. 697, 104 Cal.Rptr.2d 772.)

In Gentry v. eBay, Inc. (2002) 99 Cal. App.4th 816, 121 Cal.Rptr.2d 703, 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, 121 Cal.Rptr.2d 703.) 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, 121 Cal.Rptr.2d 703.) 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, 121 Cal. Rptr.2d 703.)

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 [65] 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.

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 (Ct.App.2003) 267 Wis.2d 919, 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 (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, 113 S.Ct. 1631.)

We conclude the Zeran court's construction of the term "publisher" is sound. The [66] 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, 121 Cal.Rptr.2d 703; 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.)

We are not convinced by the Court of Appeal's reasoning that a broad reading of section 230(e)(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 existence, strongly supports the conclusion that Congress did not intend to permit notice liability under the CDA.^[12]

[67] 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, 117 S.Ct. 2329, 138 L.Ed.2d 874.) As the high court noted, "[a]ny person or organization with a computer connected to the Internet can `publish' information." (Id. at p. 853, 117 S.Ct. 2329.) 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."

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.

[68] 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 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 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]

[69] 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 received from third parties.^[15] Congress contemplated self-regulation, [70] 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 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), U.S.Code Cong. & Admin.News 2002, p. 1741 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, [71] U.S.Code Cong. & Admin.News 2002, p. 1749)

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, 1 Cal.Rptr.3d 32, 71 P.3d 296.)

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 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 [72] 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), 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 statement at issue is true or false, factual or figurative, privileged or unprivileged, 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 [73] 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, 228 Cal.Rptr. 206, 721 P.2d 87; see also Time, Inc. v. Hill (1967) 385 U.S. 374, 389, 87 S.Ct. 534, 17 L.Ed.2d 456.)

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, 200 Cal.Rptr. 674; 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, 117 S.Ct. 2329.)

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, 275 Cal.Rptr. 581.) 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, 93 Cal.Rptr.2d 36, 993 P.2d 366: "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]

[74] 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, 124 S.Ct. 1756, 158 L.Ed.2d 529; see also Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 715, 3 Cal.Rptr.3d 623, 74 P.3d 726.) "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 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, 115 S.Ct. 1061, 131 L.Ed.2d 1; Hassan v. Mercy American River Hospital, supra, 31 Cal.4th at p. 716, 3 Cal. Rptr.3d 623, 74 P.3d 726.) Rosenthal used the Internet to gain access to newsgroups where she posted Bolen's article about Polevoy. She was therefore a "user" under [75] 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, 121 S.Ct. 2120, 150 L.Ed.2d 251; Hassan v. Mercy American River Hospital, supra, 31 Cal.4th at pp. 715-716, 3 Cal.Rptr.3d 623, 74 P.3d 726.) 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, 279 Ill.Dec. 113, 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." 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]

[76] 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 (cone & 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 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 (cone & 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]

[77] 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 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.

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 [78] of liability must await Congressional action.

III. DISPOSITION

The judgment of the Court of Appeal is reversed.

WE CONCUR: GEORGE, C.J., and KENNARD, BAXTER, WERDEGAR, CHIN and MORENO, JJ.

MORENO, J.

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 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, 20 Cal. Rptr.2d 376, 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.) [79] ... [¶] 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. 1331.) ... `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.)" (Maj. opn., ante, 51 Cal.Rptr.3d at pp. 61-62, 146 P.3d at p. 516.)

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. 62, 146 P.3d at 516), 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, 124 Cal.Rptr.2d 530, 52 P.3d 703.) 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. Terry Polevoy, and because it is uncontroverted that Bolen was the originator of that statement, 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 [80] of design and purpose on the part of Rosenthal and Bolen to defame.^[22]

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. 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.

[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.

[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."

[3] For a description of Internet newsgroups, see Reno v. American Civil Liberties Union (1997) 521 U.S. 844, 851, 117 S.Ct. 2329, 138 L.Ed.2d 874.

[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, 29 Cal.Rptr.3d 521; Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 895, 17 Cal.Rptr.3d 497; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1007, 113 Cal.Rptr.2d 625; 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.

[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

"(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.)

[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), U.S.Code Cong. & Admin.News 1996, page 208 ["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].

[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.

[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. American 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 (Ct.2000) 46 Conn.Supp. 406, 755 A.2d 1000, 1003-1004; Doe v. America Online, Inc. (Fla.2001) 783 So.2d 1010, 1013-1017; Schneider v. Amazon.com, Inc. (2001) 108 Wash.App. 454, 31 P.3d 37, 40-42; Barrett v. Fonorow (2003) 343 Ill.App.3d 1184, 279 Ill.Dec. 113, 799 N.E.2d 916, 923-925 [a suit against a Web site operator by Dr. Barrett, plaintiff in this case]; Donato v. Moldow (Ct.App.Div.2005) 374 NJ.Super. 475, 865 A.2d 711, 720-727; Austin v. CrystalTech Web Hosting (App.2005) 211 Ariz. 569, 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.

[10] Public Law 105-304, Title II, section 202(a) (Oct. 28, 1998) 112 Statutes at Large 2877.

[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) ]."

[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.

[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, 117 S.Ct. 2329.

[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 Compu-Serve, 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 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).)

[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.

[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, 115 S.Ct. 464, 130 L.Ed.2d 372.) Nevertheless, it is "sometimes considered relevant." (Consumer Product Safety Comm'n v. GTE Sylvania (1980) 447 U.S. 102, 118, fn. 13, 100 S.Ct. 2051, 64 L.Ed.2d 766; see also, e.g., Heckler v. Turner (1985) 470 U.S. 184, 209, 105 S.Ct. 1138, 84 L.Ed.2d 138.) 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 co-sponsor of section 230. (Cong. Directory, 107th Congress (2001-2002) p. 403.)

[18] In Bates v. Dow Agrosciences LLC (2005) 544 U.S. 431, 436-437, 451-452, 125 S.Ct. 1788, 1794, 1803, 161 L.Ed.2d 687, 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.

[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, 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.

[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.)

[22] 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.

521 F.3d 1157 (2008)

Nos. 04-56916, 04-57173.

Argued and Submitted December 12, 2007.
Filed April 3, 2008.

[1158] [1159] [1160] Michael Evans, Christopher Brancart, Brancart & Brancart, Pescadero, CA; Gary Rhoades, Rhoades & Al-Mansour, Los Angeles, CA, for the plaintiffs-appellants/cross-appellees.

Timothy L. Alger, Kent J. Bullard, Steven B. Stiglitz and Lesley E. Williams, [1161] Quinn Emanuel Urquhart Oliver & Hedges, LLP, Los Angeles, CA, for the defendant-appellee/cross-appellant.

Kelli L. Sager, Los Angeles, CA; Thomas R. Burke, San Francisco, CA; Bruce E.H. Johnson and Ambika K. Doran, Davis Wright Tremaine LLP, Seattle, WA, for News Organizations as amici curiae in support of the defendant-appellee.

Ann Brick, Margaret C. Crosby and Nicole A. Ozer, American Civil Liberties Union Foundation of Northern California, San Francisco, CA, for American Civil Liberties Union of Northern California as amicus curiae in support of neither party.

John P. Relman, Stephen M. Dane and D. Scott Chang, Relman & Dane PLLC, Washington, DC; Joseph D. Rich and Nicole Birch, Lawyers' Committee for Civil Rights Under Law, Washington, DC, for National Fair Housing Alliance and Lawyers' Committee for Civil Rights Under Law as amici curiae in support of the plaintiffs-appellants.

Before: ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT, PAMELA ANN RYMER, BARRY G. SILVERMAN, M. MARGARET McKEOWN, W. FLETCHER, RAYMOND C. FISHER, RICHARD A. PAEZ, CARLOS T. BEA, MILAN D. SMITH, JR. and N. RANDY SMITH, Circuit Judges.

KOZINSKI, Chief Judge:

We plumb the depths of the immunity provided by section 230 of the Communications Decency Act of 1996 ("CDA").

Facts^[1]

Defendant Roommate.com, LLC ("Roommate") operates a website designed to match people renting out spare rooms with people looking for a place to live.^[2] At the time of the district court's disposition, Roommate's website featured approximately 150,000 active listings and received around a million page views a day. Roommate seeks to profit by collecting revenue from advertisers and subscribers.

Before subscribers can search listings or post^[3] housing opportunities on Roommate's website, they must create profiles, a process that requires them to answer a series of questions. In addition to requesting basic information — such as name, location and email address — Roommate requires each subscriber to disclose his sex, sexual orientation and whether he would bring children to a household. Each subscriber must also describe his preferences in roommates with respect to the same three criteria: sex, sexual orientation and whether they will bring children to the household. The site also encourages subscribers to provide "Additional Comments" describing themselves and their desired roommate in an open-ended essay. After a new subscriber completes the application, Roommate assembles his answers into a "profile page." The profile page [1162] displays the subscriber's pseudonym, his description and his preferences, as divulged through answers to Roommate's questions.

Subscribers can choose between two levels of service: Those using the site's free service level can create their own personal profile page, search the profiles of others and send personal email messages. They can also receive periodic emails from Roommate, informing them of available housing opportunities matching their preferences. Subscribers who pay a monthly fee also gain the ability to read emails from other users, and to view other subscribers' "Additional Comments."

The Fair Housing Councils of the San Fernando Valley and San Diego ("Councils") sued Roommate in federal court, alleging that Roommate's business violates the federal Fair Housing Act ("FHA"), 42 U.S.C. § 3601 et seq., and California housing discrimination laws.^[4] Councils claim that Roommate is effectively a housing broker doing online what it may not lawfully do off-line. The district court held that Roommate is immune under section 230 of the CDA, 47 U.S.C. § 230(c), and dismissed the federal claims without considering whether Roommate's actions violated the FHA. The court then declined to exercise supplemental jurisdiction over the state law claims. Councils appeal the dismissal of the FHA claim and Roommate cross-appeals the denial of attorneys' fees.

Analysis

Section 230 of the CDA^[5] immunizes providers of interactive computer services^[6] against liability arising from content created by third parties: "No provider . . . 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).^[7] This grant of immunity applies only if the interactive computer service provider is not also an "information content provider," which is defined as someone who is "responsible, in whole or in part, for the creation or development of the offending content. Id. § 230(f)(3).

A website operator can be both a service provider and a content provider: If it passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content. But as to content that it creates itself, or is "responsible, in whole or in part" for creating or developing, the website is also a content provider. Thus, a website may be immune from liability for [1163] some of the content it displays to the public but be subject to liability for other content.^[8]

Section 230 was prompted by a state court case holding Prodigy^[9] responsible for a libelous message posted on one of its financial message boards.^[10]See Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y.Sup.Ct. May 24, 1995) (unpublished). The court there found that Prodigy had become a "publisher" under state law because it voluntarily deleted some messages from its message boards "on the basis of offensiveness and `bad taste,'" and was therefore legally responsible for the content of defamatory messages that it failed to delete. Id. at *4. The Stratton Oakmont court reasoned that Prodigy's decision to perform some voluntary self-policing made it akin to a newspaper publisher, and thus responsible for messages on its bulletin board that defamed third parties. The court distinguished Prodigy from CompuServe,^[11] which had been released from liability in a similar defamation case because CompuServe "had no opportunity to review the contents of the publication at issue before it was uploaded into CompuServe's computer banks." Id.; see Cubby, Inc. v. CompuServe, Inc., 776 F.Supp. 135, 140 (S.D.N.Y.1991). Under the reasoning of Stratton Oakmont, online service providers that voluntarily filter some messages become liable for all messages transmitted, whereas providers that bury their heads in the sand and ignore problematic posts altogether escape liability. Prodigy claimed that the "sheer volume" of message board postings it received — at the time, over 60,000 a day — made manual review of every message impossible; thus, if it were forced to choose between taking responsibility for all messages and deleting no messages at all, it would have to choose the latter course. Stratton Oakmont, 1995 WL 323710 at *3.

In passing section 230, Congress sought to spare interactive computer services this grim choice by allowing them to perform some editing on user-generated content without thereby becoming liable for all defamatory or otherwise unlawful messages that they didn't edit or delete. In other words, Congress sought to immunize the removal of user-generated content, not the creation of content: "[S]ection [230] provides `Good Samaritan' protections from civil liability for providers . . . of an interactive computer service for actions to restrict . . . access to objectionable online material. One of the specific purposes of this section is to overrule Stratton-Oakmont [sic] v. Prodigy and any other similar decisions which have treated such providers . . . as publishers or speakers of content that is not their own because they have restricted access to objectionable material." H.R.Rep. No. 104-458 (1996) (Conf.Rep.), as reprinted in 1996 U.S.C.C.A.N. 10 (emphasis added).<sup>[12]</sup> Indeed, the section is titled "Protection for `good Samaritan' blocking and [1164] screening of offensive material" and, as the Seventh Circuit recently held, the substance of section 230(c) can and should be interpreted consistent with its caption. Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. craigslist, Inc., 516 F.3d 666, ____ (7th Cir.2008) (quoting Doe v. GTE Corp., 347 F.3d 655, 659-60 (7th Cir.2003)).

With this backdrop in mind, we examine three specific functions performed by Roommate that are alleged to violate the Fair Housing Act and California law.

1. Councils first argue that the questions Roommate poses to prospective subscribers during the registration process violate the Fair Housing Act and the analogous California law. Councils allege that requiring subscribers to disclose their sex, family status and sexual orientation "indicates" an intent to discriminate against them, and thus runs afoul of both the FHA and state law.^[13]

Roommate created the questions and choice of answers, and designed its website registration process around them. Therefore, Roommate is undoubtedly the "information content provider" as to the questions and can claim no immunity for posting them on its website, or for forcing subscribers to answer them as a condition of using its services.

Here, we must determine whether Roommate has immunity under the CDA because Councils have at least a plausible claim that Roommate violated state and federal law by merely posing the questions. We need not decide whether any of Roommate's questions actually violate the Fair' Housing Act or California law, or whether they are protected by the First Amendment or other constitutional guarantees, see craigslist, at 1166-67; we leave those issues for the district court on remand. Rather, we examine the scope of plaintiffs' substantive claims only insofar as necessary to determine whether section 230 immunity applies. However, we note that asking questions certainly can violate the Fair Housing Act and analogous laws in the physical world.^[14] For example, a real estate broker may not inquire as to the race of a prospective buyer, and an employer may not inquire as to the religion of a prospective employee. If such questions are unlawful when posed face-to-face or by telephone, they don't magically become lawful when asked electronically online. The Communications Decency Act was not meant to create a lawless noman's-land on the Internet.^[15]

[1165] Councils also claim that requiring subscribers to answer the questions as a condition of using Roommate's services unlawfully "cause[s]" subscribers to make a "statement . . . with respect to the sale or rental of a dwelling that indicates [a] preference, limitation, or discrimination," in violation of 42 U.S.C. § 3604(c). The CDA does not grant immunity for inducing third parties to express illegal preferences. Roommate's own acts — posting the questionnaire and requiring answers to it — are entirely its doing and thus section 230 of the CDA does not apply to them. Roommate is entitled to no immunity.^[16]

2. Councils also charge that Roommate's development and display of subscribers' discriminatory preferences is unlawful. Roommate publishes a "profile page" for each subscriber on its website. The page describes the client's personal information — such as his sex, sexual orientation and whether he has children — as well as the attributes of the housing situation he seeks. The content of these pages is drawn directly from the registration process: For example, Roommate requires subscribers to specify, using a drop-down menu^[17] provided by Roommate, whether they are "Male" or "Female" and then displays that information on the profile page. Roommate also requires subscribers who are listing available housing to disclose whether there are currently "Straight male(s)," "Gay male(s)," "Straight female(s)" or "Lesbian(s)" living in the dwelling. Subscribers who are seeking housing must make a selection from a drop-down menu, again provided by Roommate, to indicate whether they are willing to live with "Straight or gay" males, only with "Straight" males, only with "Gay" males or, with "No males." Similarly, Roommate requires subscribers listing housing to disclose whether there are "Children present" or "Children not present" and requires housing seekers to say "I will live with children" or "I will not live with children." Roommate then displays these answers, along with other information, on the subscriber's profile page. This information is obviously included to help subscribers decide which housing opportunities to pursue and which to bypass. In addition, Roommate itself uses this information to channel subscribers away from listings where the individual offering housing has expressed preferences that aren't compatible with the subscriber's answers.

The dissent tilts at windmills when it shows, quite convincingly, that Roommate's subscribers are information content providers who create the profiles by picking among options and providing their own answers. Dissent at 1180-82. There is no disagreement on this point. But, the fact that users are information content providers does not preclude Roommate from also being an information content provider by helping "develop" at least "in part" the information in the profiles. As we explained in Batzel, the party responsible for putting information online may be subject to liability, even if the information originated with a user. See Batzel v. Smith, 333 F.3d 1018, 1033 (9th Cir.2003).^[18]

[1166] Here, the part of the profile that is alleged to offend the Fair Housing Act and state housing discrimination laws — the information about sex, family status and sexual orientation — is provided by subscribers in response to Roommate's questions, which they cannot refuse to answer if they want to use defendant's services. By requiring subscribers to provide the information as a condition of accessing its service, and by providing a limited set of pre-populated answers, Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer, at least in part, of that information. And section 230 provides immunity only if the interactive computer service does not "creat[e] or develop[]" the information "in whole or in part." See 47 U.S.C. § 230(f)(3).

Our dissenting colleague takes a much narrower view of what it means to "develop" information online, and concludes that Roommate does not develop the information because "[a]ll Roommate does is to provide a form with options for standardized answers." Dissent at 1182. But Roommate does much more than provide options. To begin with, it asks discriminatory questions that even the dissent grudgingly admits are not entitled to CDA immunity. Dissent at 1177 n. 5. The FHA makes it unlawful to ask certain discriminatory questions for a very good reason: Unlawful questions solicit (a.k.a."develop") unlawful answers. Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business. This is no different from a real estate broker in real life saying, "Tell me whether you're Jewish or you can find yourself another broker." When a business enterprise extracts such information from potential customers as a condition of accepting them as clients, it is no stretch to say that the enterprise is responsible, at least in part, for developing that information. For the dissent to claim that the information in such circumstances is "created solely by" the customer, and that the business has not helped in the least to develop it, Dissent at 1181-82, strains both credulity and English.^[19]

Roommate also argues that it is not responsible for the information on the profile page because it is each subscriber's action that leads to publication of his particular profile — in other words, the user pushes the last button or takes the last act before publication. We are not convinced that this is even true,^[20] but don't see why it matters anyway. The projectionist in the theater may push the last button before a film is displayed on the screen, but surely this doesn't make him the sole producer of [1167] the movie. By any reasonable use of the English language, Roommate is "responsible" at least "in part" for each subscriber's profile page, because every such page is a collaborative effort between Roommate and the subscriber.

Similarly, Roommate is not entitled to CDA immunity for the operation of its search system, which filters listings, or of its email notification system, which directs emails to subscribers according to discriminatory criteria.^[21] Roommate designed its search system so it would steer users based on the preferences and personal characteristics that Roommate itself forces subscribers to disclose. If Roommate has no immunity for asking the discriminatory questions, as we concluded above, see pp. 1163-65 supra, it can certainly have no immunity for using the answers to the unlawful questions to limit who has access to housing.

For example, a subscriber who self-identifies as a "Gay male" will not receive email notifications of new housing opportunities supplied by owners who limit the universe of acceptable tenants to "Straight male(s)," "Straight female(s)" and "Lesbian(s)." Similarly, subscribers with children will not be notified of new listings where the owner specifies "no children." Councils charge that limiting the information a subscriber can access based on that subscriber's protected status violates the Fair Housing Act and state housing discrimination laws. It is, Councils allege, no different from a real estate broker saying to a client: "Sorry, sir, but I can't show you any listings on this block because you are [gay/female/black/a parent]." If such screening is prohibited when practiced in person or by telephone, we see no reason why Congress would have wanted to make it lawful to profit from it online.

Roommate's search function is similarly designed to steer users based on discriminatory criteria. Roommate's search engine thus differs materially from generic search engines such as Google, Yahoo! and MSN Live Search, in that Roommate designed its system to use allegedly unlawful criteria so as to limit the results of each search, and to force users to participate in its discriminatory process. In other words, Councils allege that Roommate's search is designed to make it more difficult or impossible for individuals with certain protected characteristics to find housing — something the law prohibits. By contrast, ordinary search engines do not use unlawful criteria to limit the scope of searches conducted on them, nor are they designed to achieve illegal ends — as Roommate's search function is alleged to do here. Therefore, such search engines play no part in the "development" of any unlawful searches. See 47 U.S.C. § 230(f)(3).

It's true that the broadest sense of the term "develop" could include the functions of an ordinary search engine — indeed, just about any function performed by a website. But to read the term so broadly would defeat the purposes of section 230 by swallowing up every bit of the immunity that the section otherwise provides. At the same time, reading the exception for co-developers as applying only to content that originates entirely with the website — as the dissent would seem to suggest — ignores the words "development . . . in part" in the statutory passage "creation or development in whole or in part." 47 U.S.C. § 230(f)(3) (emphasis added). We believe that both the immunity for passive conduits and the exception for co-developers must be given their proper scope and, to that end, we interpret the term "development" as referring not merely [1168] to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, 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.

The dissent accuses us of "rac[ing] past the plain language of the statute," dissent at 1185, but we clearly do pay close attention to the statutory language, particularly the word "develop;" which we spend many pages exploring. The dissent may disagree with our definition of the term, which is entirely fair, but surely our dissenting colleague is mistaken in suggesting we ignore the term. Nor is the statutory language quite as plain as the dissent would have it. Dissent at 1183-85. Quoting selectively from the dictionary, the dissent comes up with an exceedingly narrow definition of this rather complex and multi faceted term.^[22] Dissent at 1184 (defining development as "gradual advance or growth through progressive changes") (quoting Webster's Third New International Dictionary 618 (2002)). The dissent does not pause to consider how such a definition could apply to website content at all, as it excludes the kinds of swift and disorderly changes that are the hallmark of growth on the Internet. Had our dissenting colleague looked just a few lines lower on the same page of the same edition of the same dictionary, she would have found another definition of "development" that is far more suitable to the context in which we operate: "making usable or available." Id. The dissent does not explain why the definition it has chosen reflects the statute's "plain meaning," while the ones it bypasses do not.

More fundamentally, the dissent does nothing at all to grapple with the difficult statutory problem posed by the fact that section 230(c) uses both "create" and "develop" as separate bases for loss of immunity. Everything that the dissent includes within its cramped definition of "development" fits just as easily within the definition of "creation" — which renders the term "development" superfluous. The dissent makes no attempt to explain or offer examples as to how its interpretation of the statute leaves room for "development" as a separate basis for a website to lose its immunity, yet we are advised by the Supreme Court that we must give meaning to all statutory terms, avoiding redundancy or duplication wherever possible. See Park `N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 197, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985).

While content to pluck the "plain meaning" of the statute from a dictionary definition that predates the Internet by decades, compare Webster's Third New International Dictionary 618 (1963) with Webster's Third New International Dictionary 618 (2002) (both containing "gradual advance or growth through progressive changes"), the dissent overlooks the far more relevant definition of "[web] content development" in Wikipedia: "the process of researching, writing, gathering, organizing and editing information for publication on web sites." Wikipedia, Content Development (Web), http://en.wikipedia. org/w/index.php?title=Content — development — web. & oldid=XXXXXXXXX (last visited Mar. 19, 2008). Our interpretation of "development" is entirely in line with the context-appropriate meaning of the term, [1169] and easily fits the activities Roommate engages in.

In an abundance of caution, and to avoid the kind of misunderstanding the dissent seems to encourage, we offer a few examples to elucidate what does and does not amount to "development" under section 230 of the Communications Decency Act: If an individual uses an ordinary search engine to query for a "white roommate," the search engine has not contributed to i any alleged unlawfulness in the individual's conduct; providing neutral tools to carry out what may be unlawful or illicit searches does not amount to "development" for purposes of the immunity exception. A dating website that requires users to enter their sex, race, religion and marital status through drop-down menus, and that provides means for users to search along the same lines, retains its CDA immunity insofar as it does not contribute to any alleged illegality;^[23] this immunity is retained even if the website is sued for libel based on these characteristics because the website would not have contributed materially to any alleged defamation. Similarly, a housing website that allows users to specify whether they will or will not receive emails by means of user-defined criteria might help some users exclude email from other users of a particular race or sex. However, that website would be immune, so long as it does not require the use of discriminatory criteria. A website operator who edits user-created content — such as by correcting spelling, removing obscenity or trimming for length — retains his "immunity for any illegality in the user-created content, provided that the edits are unrelated to the illegality. However, a website operator who edits in a manner that contributes to the alleged illegality — such as by removing the word "not" from a user's message reading "[Name] did not steal the artwork" in order to transform an innocent message into a libelous one — is directly involved in the alleged illegality and thus not immune.^[24]

Here, Roommate's connection to the discriminatory filtering process is direct and palpable: Roommate designed its search and email systems to limit the listings available to subscribers based on sex, sexual orientation and presence of children.^[25] Roommate selected the criteria used to hide listings, and Councils allege that the act of hiding certain listings is itself unlawful under the Fair Housing Act, which prohibits brokers from steering clients in accordance with discriminatory [1170] preferences.^[26] We need not decide the merits of Councils' claim to hold that Roommate is sufficiently involved with the design and operation of the search and email systems — which are engineered to limit access to housing on the basis of the protected characteristics elicited by the registration process — so as to forfeit any immunity to which it was otherwise entitled under section 230.

Roommate's situation stands in stark contrast to Stratton Oakmont, the case Congress sought to reverse through passage of section 230. There, defendant Prodigy was held liable for a user's unsolicited message because it attempted to remove some problematic content from its website, but didn't remove enough. Here, Roommate is not being sued for removing some harmful messages while failing to remove others; instead, it is being sued for the predictable consequences of creating a website designed to solicit and enforce housing preferences that are alleged to be illegal.

We take this opportunity to clarify two of our previous rulings regarding the scope of section 230 immunity. Today's holding sheds additional light on Batzel v. Smith, 333 F.3d 1018 (9th Cir.2003). There, the editor of an email newsletter received a tip about some artwork, which the tipster falsely alleged to be stolen. The newsletter editor incorporated the tipster's email into the next issue of his newsletter and added a short headnote, which he then emailed to his subscribers.^[27] The art owner sued for libel and a split panel held the newsletter editor to be immune under section 230 of the CDA.^[28]

Our opinion is entirely consistent with that part of Batzel which holds that an editor's minor changes to the spelling, grammar and length of third-party content do not strip him of section 230 immunity. None of those changes contributed to the libelousness of the message, so they do not add up to "development" as we interpret the term. See pp. 1167-69 supra. Batzel went on to hold that the editor could be liable for selecting the tipster's email for inclusion in the newsletter, depending on whether or not the tipster had tendered the piece to the editor for posting online, and remanded for a determination of that issue. Batzel, 333 F.3d at 1035.

The distinction drawn by Batzel anticipated the approach we take today. As Batzel explained, if the tipster tendered the material for posting online, then the editor's job was, essentially, to determine whether or not to prevent its posting — precisely the kind of activity for which section 230 was meant to provide immunity.^[29] And any activity that can be boiled [1171] down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230. See p. 1171-72 & n. 32 infra. But if the editor publishes material that he does not believe was tendered to him for posting online, then he is the one making the affirmative decision to publish, and so he contributes materially to its allegedly unlawful dissemination. He is thus properly deemed a developer and not entitled to CDA immunity. See Batzel, 333 F.3d at 1033.^[30]

We must also clarify the reasoning undergirding our holding in Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir.2003), as we used language there that was unduly broad. In Carafano, an unknown prankster impersonating actress Christianne Carafano created a profile for her on an online dating site. The profile included Carafano's home address and suggested that she was looking for an unconventional liaison. When Carafano received threatening phone calls, she sued the dating site for publishing the unauthorized profile. The site asserted immunity under section 230. We correctly held that the website was immune, but incorrectly suggested that it could never be liable because "no [dating] profile has any content until a user actively creates it." Id. at 1124. As we explain above, see pp. 1165-69 supra, even if the data are supplied by third parties, a website operator may still contribute to the content's illegality and thus be liable as a developer.^[31] Providing immunity every time a website uses data initially obtained from third parties would eviscerate the exception to section 230 for "develop[ing]" unlawful content "in whole or in part." 47 U.S.C. § 230(f)(3).

We believe a more plausible rationale for the unquestionably correct result in Carafano is this: The allegedly libelous content there — the false implication that Carafano was unchaste — was created and developed entirely by the malevolent user, without prompting or help from the website operator. To be sure, the website provided neutral tools, which the anonymous dastard used to publish the libel, but the website did absolutely nothing to encourage the posting of defamatory content — indeed, the defamatory posting was contrary to the website's express policies. The claim against the website was, in effect, that it failed to review each user-created profile to ensure that it wasn't defamatory. That is precisely the kind of [1172] activity for which Congress intended to grant absolution with the passage of section 230. With respect to the defamatory content, the website operator was merely a passive conduit and thus could not be held liable for failing to detect and remove it.^[32]

By contrast, Roommate both elicits the allegedly illegal content and makes aggressive use of it in conducting its business. Roommate does not merely provide a framework that could be utilized for proper or improper purposes; rather, Roommate's work in developing the discriminatory questions, discriminatory answers and discriminatory search mechanism is directly related to the alleged illegality of the site. Unlike Carafano, where the website operator had nothing to do with the user's decision to enter a celebrity's name and personal information in an otherwise licit dating service, here, Roommate is directly involved with developing and enforcing a system that subjects subscribers to allegedly discriminatory housing practices.

Our ruling today also dovetails with another facet of Carafano: The mere fact that an interactive computer service "classifies user characteristics . . . does not transform [it] into a `developer' of the `underlying misinformation.'" Carafano, 339 F.3d at 1124. Carafano, like Batzel, correctly anticipated our common-sense interpretation of the term "develop[]" in section 230. Of course, any classification of information, like the sorting of dating profiles by the type of relationship sought in Carafano, could be construed as "develop[ment]" under an unduly broad reading of the term. But, once again, such a broad reading would sap section 230 of all meaning.

The salient fact in Carafano was that the website's classifications of user characteristics did absolutely nothing to enhance the defamatory sting of the message, to encourage defamation or to make defamation easier: The site provided neutral tools specifically designed to match romantic partners depending on their voluntary inputs. By sharp contrast, Roommate's website is designed to force subscribers to divulge protected characteristics and discriminatory preferences, and to match those who have rooms with those who are looking for rooms based on criteria that appear to be prohibited by the FHA.^[33]

[1173] 3. Councils finally argue that Roommate should be held liable for the discriminatory statements displayed in the "Additional Comments" section of profile pages. At the end of the registration process, on a separate page from the other registration steps, Roommate prompts subscribers to "tak[e] a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate." The subscriber is presented with a blank text box, in which he can type as much or as little about himself as he wishes. Such essays are visible only to paying subscribers.

Subscribers provide a variety of provocative, and often very revealing, answers. The contents range from subscribers who "[p]ref[er] white Male roommates" or require that "[t]he person applying for the room MUST be a BLACK GAY MALE" to those who are "NOT looking for black muslims." Some common themes are a desire to live without "drugs, kids or animals" or "smokers, kids or druggies," while a few subscribers express more particular preferences, such as preferring to live in a home free of "psychos or anyone on mental medication." Some subscribers are just looking for someone who will get along with their significant other^[34] or with their most significant Other.^[35]

Roommate publishes these comments as written.^[36] It does not provide any specific guidance as to what the essay should contain, nor does it urge subscribers to input [1174] discriminatory preferences. Roommate is not responsible, in whole or in part, for the development of this content, which comes entirely from subscribers and is passively displayed by Roommate. Without reviewing every essay, Roommate would have no way to distinguish unlawful discriminatory preferences from perfectly legitimate statements. Nor can there be any doubt that this information was tendered to Roommate for publication online. See pp. 1170-71 supra. This is precisely the kind of situation for which section 230 was designed to provide immunity. See pp. 1162-64 supra.

The fact that Roommate encourages subscribers to provide something in response to the prompt is not enough to make it a "develop[er]" of the information under the common-sense interpretation of the term we adopt today. It is entirely consistent with Roommate's business model to have subscribers disclose as much about themselves and their preferences as they are willing to provide. But Roommate does not tell subscribers what kind of information they should or must include as "Additional Comments," and certainly does not encourage or enhance any discriminatory content created by users. Its simple, generic prompt does not make it a developer of the information posted.^[37]

Councils argue that — given the context of the discriminatory questions presented earlier in the registration process — the "Additional Comments" prompt impliedly suggests that subscribers should make statements expressing a desire to discriminate on the basis of protected classifications; in other words, Councils allege that, by encouraging some discriminatory preferences, Roommate encourages other discriminatory preferences when it gives subscribers a chance to describe themselves. But the encouragement that bleeds over from one part of the registration process to another is extremely weak, if it exists at all. Such weak encouragement cannot strip a website of its section 230 immunity, lest that immunity be rendered meaningless as a practical matter.^[38]

We must keep firmly in mind that this is an immunity statute we are expounding, a provision enacted to protect websites against the evil of liability for failure to remove offensive content. See pp. 1162-64 supra. Websites are complicated enterprises, and there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality. Such close cases, we believe, must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged — or at least tacitly assented to — the illegality of third parties. Where it is very clear that the website directly participates in developing the alleged illegality — as it is clear here with respect to Roommate's questions, answers and the resulting profile pages — immunity will be lost. But in cases of enhancement by implication or [1175] development by inference — such as with respect to the "Additional Comments" here — section 230 must be interpreted to protect websites not merely from ultimate liability, but from having to fight costly and protracted legal battles.

The dissent prophesies doom and gloom for countless Internet services, Dissent at 1183-84, but fails to recognize that we hold part of Roommate's service entirely immune from liability. The search engines the dissent worries about, id., closely resemble the "Additional Comments" section of Roommate's website. Both involve a generic text prompt with no direct encouragement to perform illegal searches or to publish illegal content. We hold Roommate immune and there is no reason to believe that future courts will have any difficulty applying this principle.^[39] The message to website operators is clear: If you don't encourage illegal content, or design your website to require users to input illegal content, you will be immune.

We believe that this distinction is consistent with the intent of Congress to preserve the free-flowing nature of Internet speech and commerce without unduly prejudicing the enforcement of other important state and federal laws. When Congress passed section 230 it didn't' intend to prevent the enforcement of all laws online; rather, it sought to encourage interactive computer services that provide users neutral tools to post content online to police that content without fear that through their "good Samaritan . . . screening of offensive material," 47 U.S.C. § 230(c), they would become liable for every single message posted by third parties on their website.

* * *

In light of our determination that the CDA does not provide immunity to Roommate for all of the content of its website and email newsletters, we remand for the district court to determine in the first instance whether the alleged actions for which Roommate is not immune violate the Fair Housing Act, 42 U.S.C. § 3604(c).^[40] We vacate the dismissal of the state law claims so that the district court may reconsider whether to exercise its supplemental jurisdiction in light of our ruling on the federal claims. Fredenburg v. Contra Costa County Dep't of Health Servs., 172 F.3d 1176, 1183 (9th Cir.1999). We deny Roommate's [1176] cross-appeal of the denial of attorneys' fees and costs; Councils prevail on some of their arguments before us so their case is perforce not frivolous.

REVERSED in part, VACATED in part, AFFIRMED in part and REMANDED. NO COSTS.

McKEOWN, Circuit Judge, with whom RYMER and BEA, Circuit Judges, join, concurring in part and dissenting in part:

The ubiquity of the Internet is undisputed. With more than 1.3 billion Internet users and over 158 million websites in existence,^[41] a vast number of them interactive like Google, Yahoo!, Craigslist, MySpace, YouTube, and Facebook, the question of webhost liability is a significant one. On a daily basis, we rely on the tools of cyberspace to help us make, maintain, and rekindle friendships; find places to live, work, eat, and travel; exchange views on topics ranging from terrorism to patriotism; and enlighten ourselves on subjects from "aardvarks to Zoroastrianism."^[42]

The majority's unprecedented expansion of liability for Internet service providers threatens to chill the robust development of the Internet that Congress envisioned. The majority condemns Roommate's "search system," a function that is the heart of interactive service providers. My concern is not an empty Chicken Little "sky is falling" alert. By exposing every interactive service provider to liability for sorting, searching, and utilizing the all too familiar drop-down menus, the majority has dramatically altered the landscape of Internet liability. Instead of the "robust"^[43] immunity envisioned by Congress, interactive service providers are left scratching their heads and wondering where immunity ends and liability begins.

To promote the unfettered development of the Internet, Congress adopted the Communications Decency Act of 1996 ("CDA"), which provides that interactive computer service providers will not be held legally responsible for publishing information provided by third parties. 47 U.S.C. § 230(c)(1). Even though traditional publishers retain liability for performing essentially equivalent acts in the "non-virtual world," Congress chose to treat interactive service providers differently by immunizing them from liability stemming from sorting, searching, and publishing third-party information. As we explained in Batzel v. Smith:

[Section] 230(c)(1)[] overrides the traditional treatment of publishers, distributors, and speakers under statutory and common law. As a matter of policy, "Congress decided not to treat providers of interactive computer services like other information providers such as newspapers, magazines or television and radio stations. . . ." Congress . . . has chosen to treat cyberspace differently.

333 F.3d 1018, 1026-1027 (9th Cir.2003) (quoting Blumenthal v. Drudge, 992 F.Supp. 44, 49 (D.D.C.1998) (footnote omitted)).

Now, with the stroke of a pen or, more accurately, a few strokes of the keyboard, the majority upends the settled view that interactive service providers enjoy broad immunity when publishing information provided by third parties. Instead, interactive [1177] service providers are now joined at the hip with third-party users, and they rise and fall together in liability for Internet sortings and postings.

To be sure, the statute, which was adopted just as the Internet was beginning a surge of popular currency,^[44] is not a perfect match against today's technology. The Web 2.0 version is a far cry from web technology in the mid-1990s. Nonetheless, the basic message from Congress has retained its traction, and there should be a high bar to liability for organizing and searching third-party information. The bipartisan view in Congress was that the Internet, as a new form of communication, should not be impeded by the transference of regulations and principles developed from traditional modes of communication. The majority repeatedly harps that if something is prohibited in the physical world, Congress could not have intended it to be legal in cyberspace. Yet that is precisely the path Congress took with the CDA: the anomaly that a webhost may be immunized for conducting activities in cyberspace that would traditionally be cause for liability is exactly what Congress intended by enacting the CDA.

In the end, the majority offers interactive computer service providers no bright lines and little comfort in finding a home within § 230(c)(1). The result in this case is driven by the distaste for housing discrimination, a laudable endgame were housing the real focus of this appeal. But it is not. I share the majority's view that housing discrimination is a troubling issue. Nevertheless, we should be looking at the housing issue through the lens of the Internet, not from the perspective of traditional publisher liability. Whether § 230(c)(1) trumps the Fair Housing Act ("FHA") is a policy decision for Congress, not us. Congress has spoken: third-party content on the Internet should not be burdened with the traditional legal framework.

I respectfully part company with the majority as to Part 2^[45] of the opinion because the majority has misconstrued the statutory protection under the CDA for Roommate's publishing and sorting of user profiles. The plain language and structure of the CDA unambiguously demonstrate that Congress intended these activities — the collection, organizing, analyzing, searching, and transmitting of third-party content — to be beyond the scope of traditional publisher liability. The majority's decision, which sets us apart from five circuits, contravenes congressional intent and violates the spirit and serendipity of the Internet.

Specifically, the majority's analysis is flawed for three reasons: (1) the opinion conflates the questions of liability under the FHA and immunity under the CDA; (2) the majority rewrites the statute with its definition of "information content provider," labels the search function "information development," and strips interactive service providers of immunity; and (3) the majority's approach undermines the purpose [1178] of § 230(c)(1) and has far-reaching practical consequences in the Internet world.

To begin, it is important to recognize what this appeal is not about. At this stage, there has been no determination of liability under the FHA, nor has there been any determination that the questions, answers or even the existence of Roommate's website violate the FHA. The FHA is a complicated statute and there may well be room for potential roommates to select who they want to live with, e.g., a tidy accountant wanting a tidy professional roommate, a collegiate male requesting a male roommate, an observant Jew needing a house with a kosher kitchen, or a devout, single, religious female preferring not to have a male housemate. It also bears noting that even if Roommate is immune under the CDA, the issue of user liability for allegedly discriminatory preferences is a separate question. See Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (stating that "the"original culpable party" does not "escape accountability").

By offering up inflammatory examples, the majority's opinion screams "discrimination." The hazard is, of course, that the question of discrimination has not yet been litigated. In dissenting, I do not condone housing discrimination or endorse unlawful discriminatory roommate selection practices; I simply underscore that the merits of the FHA claim are not before us. However, one would not divine this posture from the majority's opinion, which is infused with condemnation of Roommate's users' practices. To mix and match, as does the majority, the alleged unlawfulness of the information with the question of webhost immunity is to rewrite the statute.

Examples from the opinion highlight that the majority's conclusion rests on the premise that Roommate's questions and matching function violate the FHA:

• "Unlawful questions solicit (a.k.a. `develop') unlawful answers." Maj. Op. at 1166.

• "If such questions are unlawful when posed face-to-face or by telephone, they don't magically become lawful when asked electronically online." Id. at 1164.

• "If such screening is prohibited when practiced in person or by telephone, we see no reason why Congress would have wanted to make it lawful to profit from it online." Id. at 1167.

• "Roommate's search function thus differs materially from generic search engines such as Google, Yahoo! and MSN Live Search, in that Roommate designed its system to use allegedly unlawful criteria so as to limit the results of each search, and to force users to participate in its discriminatory process." Id.

• "By contrast, ordinary search engines do not use unlawful criteria to limit the scope of searches conducted on them, nor are they designed to achieve illegal ends — as Roommate's search function is alleged to do here." Id.

• "Roommate's website is designed to force subscribers to divulge protected characteristics and discriminatory preferences." Id. at 1172.

The entire opinion links Roommate's ostensibly reprehensible conduct (and that of its users) with an unprecedented interpretation of the CDA's immunity provision. The majority condemns Roommate for soliciting illegal content, but there has been no determination that Roommate's questions or standardized answers are illegal. Instead of foreshadowing a ruling on the FHA, the opinion should be confined to the issue before us — application of § 230(c)(1) to Roommate. The district court has not yet ruled on the merits of the FHA claim and neither should we.

[1179] The Statute

With this background in mind, I first turn to the text of the statute. Section 230 begins with a detailed recitation of findings and policy reasons for the statute. Congress expressly found that 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," and that "[i]ncreasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services." 47 U.S.C. § 230(a)(3), (5). Congress declared that "[i]t is the policy of the United States to . . . promote the continued development of the Internet and other interactive computer services and other interactive media." § 230(b)(1).^[46]

Unlike some statutes, subsections (a) and (b) set out in clear terms the congressional findings and policies underlying the statute. For this reason, it strikes me as odd that the majority begins, not with the statute and these express findings, but with legislative history. Granted, Congress was prompted by several cases, particularly the Prodigy case, to take action to protect interactive service providers. See Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710, 1995 N.Y. Misc. LEXIS 229 (N.Y.Sup.Ct. May 24, 1995). But that case does not cabin the scope of the statute, and the background leading up to enactment of the CDA is no substitute for the language of the statute itself. See Chicago Lawyers' Comm. for Civil Rights Under the Law, Inc. v. Craigslist, Inc., 519 F.3d 666, ____ (7th Cir. 2008) (concluding that, as enacted, "Section 230(c)(1) is general[,]" despite its "genesis" in Prodigy).

Section 230(c), the heart of this case, is entitled "Protection for `good Samaritan' blocking and screening of offensive material[.]" The substantive language of the statute itself is not so limited. Section 230(c)(1) provides:

(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.

§ 230(c)(1). Since it was first addressed in 1997 in Zeran, this section has been interpreted by the courts as providing webhost "immunity," although to be more precise, it provides a safe haven for interactive computer service providers by removing them from the traditional liabilities attached to speakers and publishers.^[47]See Zeran, 129 F.3d at 330 ("By its plain language, § 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.").

We have characterized this immunity under § 230(c)(1) as "quite robust." Carafano, 339 F.3d at 1123. Five of our sister circuits have similarly embraced this robust view of immunity by providing differential treatment to interactive service providers. Chicago Lawyers' Comm. for Civil Rights Under the Law, Inc. v. Craigslist, Inc., 519 F.3d 666, ___ _ ___ (7th Cir. 2008); Universal Commc'n Sys. v. Lycos, [1180] Inc., 478 F.3d 413, 415 (1st Cir.2007); Green v. Am. Online, 318 F.3d 465, 470 (3d Cir.2003); Ben Ezra, Weinstein, & Co., Inc. v. Am. Online Inc., 206 F.3d 980, 986 (10th Cir.2000); Zeran, 129 F.3d at 330; see also Whitney Info. Network, Inc. v. Xcentric Ventures, LLC, No. 2:04-cv-47-FtM-34SPC, 2008 WL 450095, 2008 U.S. Dist. LEXIS 11632 (M.D.Fla. Feb. 15, 2008); Doe v. MySpace, Inc., 474 F.Supp.2d 843, 849 (W.D.Tex.2007); Corbis Corp. v. Amazon.com, Inc., 351 F.Supp.2d 1090, 1118 (W.D.Wash.2004); Blumenthal, 992 F.Supp. at 50-53; Barrett v. Rosenthal, 40 Cal.4th 33, 51 Cal. Rptr.3d 55, 146 P.3d 510, 529 (2006); Gentry v. eBay, Inc., 99 Cal.App.4th 816, 121 Cal.Rptr.2d 703, 717-18 (2002); Schneider v. Amazon.com, Inc., 108 Wash.App. 454, 31 P.3d 37, 42-43 (2001).

Key to this immunity provision are the terms "interactive computer service" provider and "information content provider." The CDA defines an "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." § 230(f)(2). An interactive computer service provider is not liable as a "publisher" or "speaker" of information if the "information" is "provided by another information content provider." § 230(c)(1). The statute then defines an "information content provider" as a "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). If the provider of an interactive computer service is an information content provider of the information at issue, it cannot claim immunity as a publisher or speaker. Carafano, 339 F.3d at 1123.

Courts deciding the question of § 230(c)(1) immunity "do not write on a blank slate." Universal Commc'n, 478 F.3d at 418. Even though rapid developments in technology have made webhosts increasingly adept at searching and displaying third-party information, reviewing' courts have, in the twelve years since the CDA's enactment, "adopt[ed] a relatively expansive definition of `interactive computer service' and a relatively restrictive definition of `information content provider.'" See Carafano, 339 F.3d at 1123 (footnotes omitted). As long as information is provided by a third party, webhosts are immune from liability for publishing "ads for housing, auctions of paintings that may have been stolen by Nazis, biting comments about steroids in baseball, efforts to verify the truth of politicians' promises, and everything else that third parties may post on a web site." Craigslist, 519 F.3d at ____. We have underscored that this broad grant of webhost immunity gives effect to Congress's stated goals "to promote the continued development of the Internet and other interactive computer services" and "to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services." Carafano, 339 F.3d at 1123 (discussing § 230(b)(1), (2)).

Application of § 230(c)(1) to Roommate's Website

Because our focus is on the term "information content provider," and what it means to create or develop information, it is worth detailing exactly how the website operates, what information is at issue and who provides it. The roommate matching process involves three categories of data: About Me or Household Description; Roommate Preferences; and Comments.

To become a member of Roommates.com, a user must complete a personal profile by selecting answers from drop-down menus or checking off boxes on the screen. The profile includes "location" information [1181] (e.g., city and state, region of the city, and data about the surrounding neighborhood); details about the residence (e.g., the total number of bedrooms and bathrooms in the home, and amenities such as air conditioning, wheelchair access, high-speed Internet, or parking), and the "rental details" (e.g., monthly rent charged, lease period, and availability). The last section of the profile is the "Household Description" section,^[48] which includes the total number of occupants in the home, their age range, gender, occupation, level of cleanliness, whether they are smokers, and whether children or pets are present.

The remaining sections of the registration process are completely optional; a user who skips them has created a profile based on the information already provided. At his option, the user may select an emoticon to describe the "household character," and may upload images of the room or residence. Next, users may, at their option, specify characteristics desired in a potential roommate, such as a preferred age range, gender, and level of cleanliness. If nothing is selected, all options are included.^[49] The final step in the registration process, which is also optional, is the "Comments" section, in which users are presented with a blank text box in which they may write whatever they like, to be published with their member profiles.

Users may choose an optional "custom search" of user profiles based on criteria that they specify, like the amount of monthly rent or distance from a preferred city. Based on the information provided by users during the registration process, Roommate's automated system then searches and matches potential roommates. Roommate's Terms of Service provide in part, "You understand that we do not provide the information on the site and that all publicly posted or privately transmitted information, data, text, photographs, graphics, messages, or other materials (`Content') are the sole responsibility of the person from which such Content originated."

Roommate's users are "information content providers" because they are responsible for creating the information in their user profiles and, at their option — not the website's choice — in expressing preferences as to roommate characteristics. § 230(f)(3). The critical question is whether Roommate is itself an "information content provider," such that it cannot claim that the information at issue was "provided [1182] by another information content provider." A close reading of the statute leads to the conclusion that Roommate is not an information content provider for two reasons: (1) providing a drop-down menu does not constitute "creating" or "developing" information; and (2) the structure and text of the statute make plain that Congress intended to immunize Roommate's sorting, displaying, and transmitting of third-party information.

Roommate neither "creates" nor "develops" the information that is challenged by the Councils, i.e., the information provided by the users as to their protected characteristics and the preferences expressed as to roommate characteristics. All Roommate does is to provide a form with options for standardized answers. Listing categories such as geographic location, cleanliness, gender and number of occupants, and transmitting to users profiles of other users whose expressed information matches their expressed preferences, can hardly be said to be creating or developing information. Even adding standardized options does not "develop" information. Roommate, with its prompts, is merely "selecting material for publication," which we have stated does not constitute the "development" of information. Batzel, 333 F.3d at 1031. The profile is created solely by the user, not the provider of the interactive website. Indeed, without user participation, there is no information at all. The drop-down menu is simply a precategorization of user information before the electronic sorting and displaying that takes place via an algorithm. If a user has identified herself as a non-smoker and another has expressed a preference for a non-smoking roommate, Roommate's sorting and matching of user information are no different than that performed by a generic search engine.

Displaying the prompt "Gender" and offering the list of choices, "Straight male; Gay male; Straight female; Gay female" does not develop the information, "I am a Gay male." The user has identified himself as such and provided that information to Roommate to publish. Thus, the user is the sole creator of that information; no "development" has occurred. In the same vein, presenting the user with a "Preferences" section and drop-down menus of options does not "develop" a user's preference for a non-smoking roommate. As we stated in Carafano, the "actual profile `information' consist[s] of the particular options chosen" by the user, such that Roommate is not "responsible, even in part, for associating certain multiple choice responses with a set of [] characteristics." 339 F.3d at 1124.

The thrust of the majority's proclamation that Roommate is "developing" the information that it publishes, sorts, and transmits is as follows: "[W]e interpret the term `development' as referring not merely to augmenting the content generally, but to materially contributing to its unlawfulness." Maj. Op. at 1168. This definition is original to say the least and springs forth untethered to anything in the statute.

The majority's definition of "development" epitomizes its consistent collapse of substantive liability with the issue of immunity. Where in the statute does Congress say anything about unlawfulness? Whether Roommate is entitled to immunity for publishing and sorting profiles is wholly distinct from whether Roommate may be liable for violations of the FHA. Immunity has meaning only when there is something to be immune from, whether a disease or the violation of a law. It would be nonsense to claim to be immune only from the innocuous. But the majority's immunity analysis is built on substantive liability: to the majority, CDA immunity depends on whether a webhost materially [1183] contributed to the unlawfulness of the information. Whether the information at issue is unlawful and whether the webhost has contributed to its unlawfulness are issues analytically independent of the determination of immunity. Grasping at straws to distinguish Roommate from other interactive websites such as Google and Yahoo!, the majority repeatedly gestures to Roommate's potential substantive liability as sufficient reason to disturb its immunity. But our task is to determine whether the question of substantive liability may be reached in the first place.

Keep in mind that "unlawfulness" would include not only purported statutory violations but also potential defamatory statements. The irony is that the majority would have us determine "guilt" or liability in order to decide whether immunity is available. This upside-down approach would knock out even the narrowest immunity offered under § 230(c) — immunity for defamation as a publisher or speaker.

Another flaw in the majority's approach is that it fails to account for all of the other information allegedly developed by the webhost. For purposes of determining whether Roommate is an information content provider vis-a-vis the profiles, the inquiry about geography and the inquiry about gender should stand on the same footing. Both are single word prompts followed by a drop-down menu of options. If a prompt about gender constitutes development, then so too does, the prompt about geography. And therein lies the rub.

Millions of websites use prompts and drop-down menus. Inquiries range from what credit card you want to use and consumer satisfaction surveys asking about age; sex and household income, to dating sites, e.g., match.com, sites lambasting corporate practices, e.g., ripoffreports.com, and sites that allow truckers to link up with available loads, e.g., getloaded.com. Some of these sites are innocuous while others may not be. Some may solicit illegal information; others may not. But that is not the point. The majority's definition of "development" would transform every interactive site into an information content provider and the result would render illusory any immunity under § 230(c). Virtually every site could be responsible in part for developing content.

For example, the majority purports to carve out a place for Google and other search engines. Maj. Op. at 1167. But the modern Google is more than a match engine: it ranks search results, provides prompts beyond what the user enters, and answers questions. In contrast, Roommate is a straight match service that searches information and criteria provided by the user, not Roommate. It should be afforded no less protection than Google, Yahoo!, or other search engines.

The majority then argues that "providing neutral tools to carry out what may be unlawful or illicit searches does not amount to `development.'" Maj. Op. at 1169. But this effort to distinguish Google, Yahoo!, and other search engines from Roommate is unavailing. Under the majority's definition of "development," these search engines are equivalent to Roommate. Google "encourages" or "contributes" (the majority's catch phrases) to the unlawfulness by offering search tools that allow the user to perform an allegedly unlawful match. If a user types into Google's search box, "looking for a single, Christian, female roommate," and Google displays responsive listings, Google is surely "materially contributing to the alleged unlawfulness" of information created by third parties, by publishing their intention to discriminate on the basis of protected characteristics. In the defamation arena, a webhost's publication of a defamatory statement "materially contributes" to its [1184] unlawfulness, as publication to third parties is an element of the offense. At bottom, the majority's definition of "development" can be tucked in, let out, or hemmed up to fit almost any search engine, creating tremendous uncertainty in an area where Congress expected predictability.

"Development" is not without meaning. In Batzel, we hinted that the "development of information" that transforms one into an "information content provider" is "something more substantial than merely editing portions of an email and selecting material for publication." 333 F.3d at 1031. We did not flesh out further the meaning of "development" because the editor's alterations of an email message and decision to publish it did not constitute "development." Id.

Because the statute does not define "development," we should give the term its ordinary meaning. See San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir.2004) (stating that dictionaries may be used to determine the "`plain meaning' of a term undefined by a statute"). "Development" is defined in Webster's Dictionary as a "gradual advance or growth through progressive changes." Webster's Third New International Dictionary 618 (2002). The multiple uses of "development" and "develop" in other provisions of § 230 give texture to the definition of "development," and further expose the folly of the majority's ungrounded definition. See, e.g., § 230(b)(3) (stating that "[i]t is the policy of the United States to encourage the development of technologies which maximize user control over what information is received by individuals, families, and' schools") (emphasis added).^[50] Defining "development" in this way keeps intact the settled rule that the CDA immunizes a webhost who exercises a publisher's "traditional editorial functions — such as deciding whether to publish, withdraw, post-pone, or alter content." Batzel, 333 F.3d at 1031 n. 18.^[51]

Applying the plain meaning of "development" to Roommate's sorting and transmitting of third-party information demonstrates [1185] that it was not transformed into an "information content provider." In searching, sorting, and transmitting information, Roommate made no changes to the information provided to it by users. Even having notice that users may be using its site to make discriminatory statements is not sufficient to invade Roommate's immunity. See Zeran, 129 F.3d at 333 (stating that "liability upon notice has a chilling effect on the freedom of Internet speech.").

The majority blusters that Roommate develops information, because it "requir[es] subscribers to provide the information as a condition of accessing its services," and "designed its search system so it would steer users based on the preferences and personal characteristics that Roommate itself forces subscribers to disclose." Maj. Op. at 1165, 1167.^[52] But the majority, without looking back, races past the plain language of the statute. That Roommate requires users to answer a set of prompts to identify characteristics about themselves does not change the fact that the users have furnished this information to Roommate for Roommate to publish in their profiles. Nor do Roommate's prompts alter the fact that users have chosen to select characteristics that they find desirable in potential roommates, and have directed Roommate to search and compile results responsive to their requests. Moreover, tagging Roommate with liability for the design of its search system is dangerous precedent for analyzing future Internet cases.

Even if Roommate's prompts and drop-down menus could be construed to seek out, or encourage, information from users, the CDA does not withhold immunity for the encouragement or solicitation of information.^[53]See Blumenthal, 992 F.Supp. at 52 (stating that "Congress has made a different policy choice by providing immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others.") (emphasis added); Gentry, 121 Cal.Rptr.2d at 718 (noting that "enforcing appellants' negligence claim would place liability on eBay for simply compiling false and/or misleading content created by the individual defendants and other coconspirators."). The CDA does not countenance an exception for the solicitation or encouragement of information provided by users.

A number of district courts have recently encountered the claim that an interactive website's solicitation of information, by requiring user selection of content from drop-down menus, transformed it into an information content provider. Unsurprisingly, these courts reached the same commonsense solution that I reach here: § 230(c)(1) immunizes the interactive service provider. See Whitney Info. Network, Inc. v. Xcentric Ventures, LLC, No. 2:04-cv-47-FtM-34SPC, 2008 WL 450095, at *10, 2008 U.S. Dist. LEXIS 11632, at *36 (M.D.Fla. Feb. 15, 2008) (stating that the "mere fact that Xcentric provides categories from which a poster must make a selection in order to submit a report on the [] website is not sufficient to treat Defendants as information content providers of the reports"); Global Royalties, Ltd. v. Xcentric Ventures, LLC, No. 07-956-PHX-FJM, [1186] 2007 WL 2949002, 2007 U.S. Dist. LEXIS 77551 (D.Ariz. Oct. 10, 2007). Simply supplying a list of options from which a user must select options "is minor and passive participation" that does not defeat CDA immunity. Global Royalties, 2007 WL 2949002, at *3, 2007 U.S. Dist. LEXIS 77551, at *9; see also Corbis, 351 F.Supp.2d at 1118 (holding that even though Amazon.com "may have encouraged third parties to use the Zshops platform and provided the tools to assist them, that does not disqualify it from immunity under § 230 because the Zshops vendor ultimately decided what information to put on its site.").

Carafano presented circumstances virtually indistinguishable from those before us, yet the majority comes to the exact opposite conclusion here in denying immunity for sorting and matching third-party information provided in response to webhost prompts. The website in Carafano, an online dating service named Matchmaker.com, asked its users sixty-two detailed questions and matched users according to their responses. We held that § 230(c)(1) immunized the dating service, and flatly rejected the proposition that matching, sorting, and publishing user information in response to webhost prompts abrogated CDA immunity. Carafano, 339 F.3d at 1124-25. A provider's "decision to structure the information provided by users," which enables the provider to "offer additional features, such as `matching' profiles with similar characteristics or highly structured searches based on combinations of multiple choice questions," ultimately "promotes the expressed Congressional policy `to promote the continued development of the Internet and other interactive computer services.'" Id. (quoting § 230(b)(1)). Now the majority narrows Carafano on the basis that Matchmaker did not prompt the allegedly libelous information that was provided by a third party. Maj. Op. at 1171. But the majority makes this distinction without any language in the statute supporting the consideration of the webhost's prompting or solicitation.

The structure of the statute also supports my view that Congress intended to immunize Roommate's sorting and publishing of user profiles. An "interactive computer service" is defined to include an "access software provider." § 230(f)(2). The statute defines an "access software provider" as one that provides "enabling tools" to "filter," "screen," "pick," "choose," "analyze," "digest," "search," "forward," "organize," and "reorganize" content. § 230(f)(4)(A)-(C).

By providing a definition for "access software provider" that is distinct from the definition of an "information content provider," and withholding immunity for "information content providers," the statute makes resoundingly clear that packaging, sorting, or publishing third-party information are not the kind of activities that Congress associated with "information content providers." Yet these activities describe exactly what Roommate does through the publication and distribution of user profiles: Roommate "receives," "filters," "digests," and "analyzes" the information provided by users in response to its registration prompts, and then "transmits," "organizes," and "forwards" that information to users in the form of uniformly organized profiles. Roommate is performing tasks that Congress recognized as typical of entities that it intended to immunize.

Finally, consider the logical disconnect of the majority's opinion. The majority writes — and I agree — that the openended Comments section contains only third-party content. Maj. Op. at 1173-75. But if Roommate's search function permits sorting by key words such as children or gender, the majority would label Roommate's use of such criteria as a "discriminatory filtering process." Id. at 1169-70.

[1187] At a minimum, the CDA protects the search criteria employed by websites and does not equate tools that "filter," "screen," "pick," "choose," "analyze," "digest," "search," "forward," "organize," and "reorganize" with the "creation or development" of information. § 230(f)(4)(A)-(C).

Ramifications of the Majority Opinion

I am troubled by the consequences that the majority's conclusion poses for the ever-expanding Internet community. The unwise narrowing of our precedent, coupled with the mixing and matching of CDA immunity with substantive liability, make it exceedingly difficult for website providers to know whether their activities will be considered immune under the CDA. We got it right in Carafano, that "[u]nder § 230(c) . . . so long as a third party willingly provides the essential published content, the interactive service provider receives full immunity regardless of the specific editing or selection process." 339 F.3d at 1124 (quoted in Doe, 474 F.Supp.2d at 847; Chicago Lawyers' Comm. for Civil Rights Under the Law, Inc. v. Craigslist, Inc., 461 F.Supp.2d 681, 690 n. 7 (N.D.Ill.2006); Dimeo v. Max, 433 F.Supp.2d 523, 530 n. 12 (E.D.Pa.2006); Prickett v. Infousa, Inc., No. 04:05-CV-10, 2006 WL 887431, at *2, 2006 U.S. Dist. LEXIS 21867, at *4 (E.D.Tex. Mar. 30, 2006)).

Significantly, § 230(e) expressly exempts from its scope certain areas of law, such as intellectual property law and federal criminal laws. § 230(e)(1) ("Nothing in this section shall be construed to impair the enforcement of [selected obscenity statutes] or any other Federal criminal statute."); § 230(e)(2) ("Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property."). See also Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1118 (9th Cir. 2007). Thus, for example, a webhost may still be liable as a publisher or speaker of third-party information that is alleged to infringe a copyright. Notably, the CDA does not exempt the FHA and a host of other federal statutes from its scope. See § 230(e). The FHA existed at the time of the CDA's enactment, yet Congress did not add it to the list of specifically enumerated laws for which publisher and speaker liability was left intact. The absence of a statutory exemption suggests that Congress did not intend to provide special case status to the FHA in connection with immunity under the CDA. See TRW Inc. v. Andrews, 534 U.S. 19, 28, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (stating that "[w]here Congress explicitly enumerates certain exceptions to a general prohibition, additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.") (citation omitted); see also Craigslist, 519 F.3d at ____ (stating that "[t]he question is not whether Congress gave any thought to the Fair Housing Act, but whether it excluded § 3604(c) from the reach of § 230(c)(1)").

Anticipating the morphing of the Internet and the limits of creative genius and entrepreneurship that fuel its development is virtually impossible. However, Congress explicitly drafted the law to permit this unfettered development of the Internet. Had Congress discovered that, over time, courts across the country have created more expansive immunity than it originally envisioned under the CDA, Congress could have amended the law. But it has not. In fact, just six years ago, Congress approved of the broad immunity that courts have uniformly accorded interactive webhosts under § 230(c).

In 2002, Congress passed the "Dot Kids Implementation and Efficiency Act," which established a new "kids.us" domain for material that is safe for children. Pub.L. No. 107-317, 116 Stat. 2766. Congress stated that the statutory protections of [1188] § 230(c) were extended to certain entities that operated within the new domain. 47 U.S.C. § 941 (stating that certain entities "are deemed to be interactive computer services for purposes of § 230(c)"). The Committee Report that accompanied the statute declared:

The Committee notes that ISPs 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.

H.R. REP. No. 107-449, 2002 U.S.C.C.A.N. 1741, 1749 (emphasis added). These statements "reflect the Committee's intent that the existing statutory construction," i.e., broad immunity for interactive webhosts, "be maintained in a new legislative context." Barrett, 146 P.3d at 523 n. 17 (discussing H.R.Rep. No. 107-449); see also Heckler v. Turner, 470 U.S. 184, 209, 105 S.Ct. 1138, 84 L.Ed.2d 138 (1985) (noting that subsequent legislative history can shed useful light on Congressional intent). This express Congressional approval of the courts' interpretation of § 230(c)(1), six years after its enactment, advises us to stay the course of "robust" webhost immunity.

The consequences of the majority's interpretation are far-reaching. Its position will chill speech on the Internet and impede "the continued development of the Internet and other interactive computer services and other interactive media." § 230(b)(1). To the extent the majority strips immunity because of sorting, channeling, and categorizing functions, it guts the heart of § 230(c)(1) immunity. Countless websites operate just like Roommate: they organize information provided by their users into a standardized format, and provide structured searches to help users find information. These sites, and their attendant display, search, and inquiry tools, are an indispensable part of the Internet tool box. Putting a lid on the sorting and searching functions of interactive websites stifles the core of their services.

To the extent the majority strips immunity because the information or query may be illegal under some statute or federal law, this circumstance puts the webhost in the role of a policeman for the laws of the fifty states and the federal system. There are not enough Net Nannies in cyberspace to implement this restriction, and the burden of filtering content would be unfathomable.

To the extent the majority strips immunity because a site solicits or actively encourages content, the result is a direct restriction on the free exchange of ideas and information on the Internet. As noted in the amici curiae brief of the news organizations, online news organization routinely solicit third-party information. Were the websites to face host liability for this content, they "would have no choice but to severely limit its use" and "[s]heer economics would dictate that vast quantities of valuable information be eliminated from websites." Brief of Amici Curiae News Organizations in Support of Roommate.com, LLC 22.

To the extent the majority strips immunity because a website "materially contributed" to the content or output of a website by "specialization" of content, this approach would essentially swallow the immunity provision. The combination of solicitation, sorting, and potential for liability would put virtually every interactive website in this category. Having a website directed to Christians, Muslims, gays, disabled [1189] veterans, or childless couples could land the website provider in hot water.^[54]

Because the statute itself is cumbersome to interpret in light of today's Internet architecture, and because the decision today will ripple through the billions of web pages already online, and the countless pages to come in the future, I would take a cautious, careful, and precise approach to the restriction of immunity, not the broad swath cut by the majority. I respectfully dissent and would affirm the district court's judgment that Roommate is entitled to immunity under § 230(c)(1) of the CDA, subject to examination of whether the bare inquiry itself is unlawful.

[1] This appeal is taken from the district court's order granting defendant's motion for summary judgment, so we view contested facts in the light most favorable to plaintiffs. See Winterrowd v. Nelson, 480 F.3d 1181, 1183 n. 3 (9th Cir.2007).

[2] For unknown reasons, the company goes by the singular name "Roommate.com, LLC" but pluralizes its website's URL, www. roommates.com.

[3] In the online context, "posting" refers to providing material that can be viewed by other users, much as one "posts" notices on a physical bulletin board.

[4] The Fair Housing Act prohibits certain forms of discrimination on the basis of "race, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(c). The California fair housing law prohibits discrimination on the basis of "sexual orientation, marital status, . . . ancestry, . . . source of income, or disability," in addition to reiterating the federally protected classifications. Cal. Gov. Code § 12955.

[5] The Supreme Court held some portions of the CDA to be unconstitutional. See Reno v. ACLU, 521 U.S. 844, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). The portions relevant to this case are still in force.

[6] Section 230 defines an "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." 47 U.S.C. § 230(f)(2); see Carafano v. Metrosplash.com, Inc., 207 F.Supp.2d 1055, 1065-66 (C.D.Cal. 2002) (an online dating website is an "interactive computer service" under the CDA), aff'd, 339 F.3d 1119 (9th Cir.2003). Today, the most common interactive computer services are websites. Councils do not dispute that Roommate's website is an interactive computer service.

[7] The Act also gives immunity to users of third-party content. This case does not involve any claims against users so we omit all references to user immunity when quoting and analyzing the statutory text.

[8] See, e.g., Anthony v. Yahoo! Inc., 421 F.Supp.2d 1257, 1262-63 (N.D.Cal.2006) (Yahoo! is not immune under the CDA for allegedly creating fake profiles on its own dating website).

[9] Prodigy was an online service provider with 2 million users, which seemed like a lot at the time.

[10] A "message board" is a system of online discussion allowing users to "post" messages. Messages are organized by topic — such as the "finance" message board at issue in Stratton Oakmont — and the system generally allows users to read and reply to messages posted by others.

[11] CompuServe was a competing online service provider of the day.

[12] While the Conference Report refers to this as "[o]ne of the specific purposes" of section 230, it seems to be the principal or perhaps the only purpose. The report doesn't describe any other purposes, beyond supporting "the important federal policy of empowering parents to determine the content of communications their children receive through interactive computer services." H.R.Rep. No. 104-458, at 194 (1996) (Conf.Rep.), as reprinted in 1996 U.S.C.C.A.N. 10, 207-08.

[13] The Fair Housing Act prohibits any "statement . . . with respect to the sale or rental of a dwelling that indicates . . . an intention to make [a] preference, limitation, or discrimination" on the basis of a protected category. 42 U.S.C. § 3604(c) (emphasis added). California law prohibits "any written or oral inquiry concerning the" protected status of a housing seeker. Cal. Gov.Code § 12955(b).

[14] The Seventh Circuit has expressly held that inquiring into the race and family status of housing applicants is unlawful. See, e.g., Jancik v. HUD, 44 F.3d 553, 557 (7th Cir.1995).

[15] The dissent stresses the importance of the Internet to modern life and commerce, Dissent at 1176, and we, of course, agree: The' Internet is no longer a fragile new means of communication that could easily be smothered in the cradle by overzealous enforcement of laws and regulations applicable to brick-and-mortar businesses. Rather, it has become a dominant — perhaps the preeminent — means through which commerce is conducted. And its vast reach into the lives of millions is exactly why we must be careful not to exceed the scope of the immunity provided by Congress and thus give online businesses an unfair advantage over their real-world counterparts, which must comply with laws of general applicability.

[16] Roommate argues that Councils waived the argument that the questionnaire violated the FHA by failing to properly raise it in the district court. But, under our liberal pleading standard, it was sufficient for Councils in their First Amended Complaint to allege that Roommate "encourages" subscribers to state discriminatory preferences. See Johnson v. Barker, 799 F.2d 1396, 1401 (9th Cir.1986).

[17] A drop-down menu allows a subscriber to select answers only from among options provided by the website.

[18] See also discussion of Batzel pp. 1170-71 infra.

[19] The dissent may be laboring under a misapprehension as to how the Roommate website is alleged to operate. For example, the dissent spends some time explaining that certain portions of the user profile application are voluntary. Dissent at 1180-82. We do not discuss these because plaintiffs do not base their claims on the voluntary portions of the application, except the "Additional Comments" portion, discussed below, see pp. 1173-75 infra. The dissent also soft-pedals Roommate's influence on the mandatory portions of the applications by referring to it with such words as "encourage" or "encouragement" or "solicitation." Dissent at 1185; see id. at 1188. Roommate, of course, does much more than encourage or solicit; it forces users to answer certain questions and thereby provide information that other clients can use to discriminate unlawfully.

[20] When a prospective subscriber submits his application, Roommate's server presumably checks it to ensure that all required fields are complete, and that any credit card information is not fraudulent or erroneous. Moreover, some algorithm developed by Roommate then decodes the input, transforms it into a profile page and notifies other subscribers of a new applicant or individual offering housing matching their preferences.

[21] Other circuits have held that it is unlawful for housing intermediaries to "screen" prospective housing applicants on the basis of race, even if the preferences arise with landlords. See Jeanty v. McKey & Poague, Inc., 496 F.2d 1119, 1120-21 (7th Cir.1974).

[22] Development, it will be recalled, has many meanings, which differ materially depending on context. Thus, "development" when used as part of the phrase "research and development" means something quite different than when referring to "mental development," and something else again when referring to "real estate development," "musical development" or "economic development."

[23] It is perfectly legal to discriminate along those lines in dating, and thus there can be no claim based solely on the content of these questions.

[24] Requiring website owners to refrain from taking affirmative acts that are unlawful does not strike us as an undue burden. These are, after all, businesses that are being held responsible only for their own conduct; there is no vicarious liability for the misconduct of their customers. Compliance with laws of general applicability seems like an entirely justified burden for all businesses, whether they operate online or through quaint brick-and-mortar facilities. Insofar, however, as a plaintiff would bring a claim under state or federal law based on a website operator's passive acquiescence in the misconduct of its users, the website operator would likely be entitled to CDA immunity. This is true even if the users committed their misconduct using electronic tools of general applicability provided by the website operator.

[25] Of course, the logic of Roommate's argument is not limited to discrimination based on these particular criteria. If Roommate were free to discriminate in providing housing services based on sex, there is no reason another website could not discriminate based on race, religion or national origin. Nor is its logic limited to housing; it would apply equally to websites providing employment or educational opportunities — or anything else, for that matter.

[26] The dissent argues that Roommate is not liable because the decision to discriminate on these grounds does not originate with Roommate; instead, "users have chosen to select characteristics that they find desirable." Dissent at 1185. But, it is Roommate that forces users to express a preference and Roommate that forces users to disclose the information that can form the basis of discrimination by others. Thus, Roommate makes discrimination both possible and respectable.

[27] Apparently, it was common practice for this editor to receive and forward tips from his subscribers. In effect, the newsletter served as a heavily moderated discussion list.

[28] As an initial matter, the Batzel panel held that the defendant newsletter editor was a "user" of an interactive computer service within the definition provided by section 230. While we have our doubts, we express no view on this issue because it is not presented to us. See p. 1162 n. 7 supra. Thus, we assume that the editor fell within the scope of section 230's coverage without endorsing Batzel's analysis on this point.

[29] As Batzel pointed out, there can be no meaningful difference between an editor starting with a default rule of publishing all submissions and then manually selecting material to be removed from publication, and a default rule of publishing no submissions and manually selecting material to be published — they are flip sides of precisely the same coin. Batzel, 333 F.3d at 1032 ("The scope of [section 230] immunity cannot turn on whether the publisher approaches the selection process as one of inclusion or removal, as the difference is one of method or degree, not substance.").

[30] The dissent scores a debater's point by noting that the same activity might amount to "development" or not, depending on whether it contributes materially to the illegality of the content. Dissent at 3489. But we are not defining "development" for all purposes; we are defining the term only for purposes of determining whether the defendant is entitled to immunity for a particular act. This definition does not depend on finding substantive liability, but merely requires analyzing the context in which a claim is brought. A finding that a defendant is not immune is quite distinct from finding liability: On remand, Roommate may still assert other defenses to liability under the Fair Housing Act, or argue that its actions, do not violate the Fair Housing Act at all. Our holding is limited to a determination that the CDA provides no immunity to Roommate's actions in soliciting and developing the content of its website; whether that content is in fact illegal is a question we leave to the district court.

[31] We disavow any suggestion that Carafano holds an information content provider automatically immune so long as the content originated with another information content provider. 339 F.3d at 1125.

[32] Section 230 requires us to scrutinize particularly closely any claim that can be boiled down to the failure of an interactive computer service to edit or block user-generated content that it believes was tendered for posting online, see pp. 1170-71 supra, as that is the very activity Congress sought to immunize by passing the section. See pp. 1162-64 supra.

[33] The dissent coyly suggests that our opinion "sets us apart from" other circuits, Dissent at 1177, 1179-80, carefully avoiding the phrase "intercircuit conflict." And with good reason: No other circuit has considered a case like ours and none has a case that even arguably conflicts with our holding today. No case cited by the dissent involves active participation by the defendant in the creation or development of the allegedly unlawful content; in each, the interactive computer service provider passively relayed content generated by third parties, just as in Stratton Oakmont, and did not design its system around the dissemination of unlawful content.

In Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. craigslist, Inc., 519 F.3d 666 (7th Cir.2008), the Seventh Circuit held the online classified website craigslist immune from liability for discriminatory housing advertisements submitted by users. Craigslist's service works very much like the "Additional Comments" section of Roommate's website, in that users are given an open text prompt in which to enter any description of the rental property without any structure imposed on their content or any requirement to enter discriminatory information: "Nothing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination. . . ." 519 F.3d at ____. We similarly hold the "Additional Comments" section of Roommate's site immune, see pp. 1173-75 infra. Consistent with our opinion, the Seventh Circuit explained the limited scope of section 230(c) immunity. Craigslist, at ___ _ ___. More directly, the Seventh Circuit noted in dicta that "causing a particular statement to be made, or perhaps [causing] the discriminatory content of a statement" might be sufficient to create liability for a website. At ____ (emphasis added). Despite the dissent's attempt to imply the contrary, the Seventh Circuit's opinion is actually in line with our own. In Universal Communication Systems v. Lycos, Inc., the First Circuit held a message board owner immune under the CDA for defamatory comments posted on a message board. 478 F.3d 413 (1st Cir.2007). The allegedly defamatory comments were made without any prompting or encouragement by defendant: "[T]here is not even a colorable argument that any misinformation was prompted by Lycos's registration process or its link structure." Id. at 420.

Green v. America Online, 318 F.3d 465 (3d Cir.2003), falls yet farther from the mark. There, AOL was held immune for derogatory comments and malicious software transmitted by other defendants through AOL's "Romance over 30" "chat room." There was no allegation that AOL solicited the content, encouraged users to post harmful content or otherwise had any involvement whatsoever with the harmful content, other than through providing "chat rooms" for general use.

In Ben Ezra, Weinstein, and Co. v. America Online Inc., 206 F.3d 980 (10th Cir.2000), the Tenth Circuit held AOL immune for relaying inaccurate stock price information it received from other vendors. While AOL undoubtedly participated in the decision to make stock quotations available to members, it did not cause the errors in the stock data, nor did it encourage or solicit others to provide inaccurate data. AOL was immune because "Plaintiff could not identify any evidence indicating Defendant [AOL] developed or created the stock quotation information." Id. at 985 n. 5. And, finally, in Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir.1997), the Fourth Circuit held AOL immune for yet another set of defamatory and harassing message board postings. Again, AOL did not solicit the harassing content, did not encourage others to post it, and had nothing to do with its creation other than through AOL's role as the provider of a generic message board for general discussions.

[34] "The female we are looking for hopefully wont [sic] mind having a little sexual incounter [sic] with my boyfriend and I [very sic]."

[35] "We are 3 Christian females who Love our Lord Jesus Christ. . . . We have weekly bible studies and bi-weekly times of fellowship."

[36] It is unclear whether Roommate performs any filtering for obscenity or "spam," but even if it were to perform this kind of minor editing and selection, the outcome would not change. See Batzel, 333 F.3d at 1031.

[37] Nor would Roommate be the developer of discriminatory content if it provided a free-text search that enabled users to find keywords in the "Additional Comments" of others, even if users utilized it to search for discriminatory keywords. Providing neutral tools for navigating websites is fully protected by CDA immunity, absent substantial affirmative conduct on the part of the website creator promoting the use of such tools for unlawful purposes.

[38] It's true that, under a pedantic interpretation of the term "develop," any action by the website — including the mere act of making a text box available to write in — could be seen as "develop[ing]" content. However, we have already rejected such a broad reading of the term "develop" because it would defeat the purpose of section 230. See pp. 1167-69 supra.

[39] The dissent also accuses us of creating uncertainty that will chill the continued growth of commerce on the Internet. Dissent at 1186-87. Even looking beyond the fact that the Internet has outgrown its swaddling clothes and no longer needs to be so gently coddled, see p. 1164-65 n. 15 supra, some degree of uncertainty is inevitable at the edge of any rule of law. Any immunity provision, including section 230, has its limits and there will always be close cases. Our opinion extensively clarifies where that edge lies, and gives far more guidance than our previous cases. While the dissent disagrees about the scope of the immunity, there can be little doubt that website operators today know more about how to conform their conduct to the law than they did yesterday.

However, a larger point remains about the scope of immunity provisions. It's no surprise that defendants want to extend immunity as broadly as possible. We have long dealt with immunity in different, and arguably far more important, contexts — such as qualified immunity for police officers in the line of duty, see Clement v. City of Glendale, 518 F.3d 1090 (9th Cir.2008) — and observed many defendants argue that the risk of getting a close case wrong is a justification for broader immunity. Accepting such an argument would inevitably lead to an endless broadening of immunity, as every new holding creates its own borderline cases.

[40] We do not address Roommate's claim that its activities are protected by the First Amendment. The district court based its decision entirely on the CDA and we refrain from deciding an issue that the district court has not had the opportunity to evaluate. See Mukherjee v. INS, 793 F.2d 1006, 1010 (9th Cir.1986).

[41] Internet World Stats, World Internet Users: December 2007, http:// www.internet worldstats.com/stats.htm (last visited Mar. 14, 2008); Netcraft, February 2008 Web Server Survey, http://news.rietcraft.com/ archives/web — server — survey.html (last visited Mar. 14, 2008).

[42] Ashcroft v. ACLU, 535 U.S. 564, 566, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002).

[43] Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir.2003).

[44] According to one commentator, in 1985, there were approximately 1,000 host computers connected to the Internet; by 1995, that number had exploded to 4,000,000. Paul H. Arne, New Wine in Old Bottles: The Developing Law of the Internet, 416 PLI/Pat 9, 15 (Sept.1995).

[45] The complaint centers on the responses and profiles generated by the users. To the extent that the inquiry in isolation is part of the claims, then I agree with Part 1 of the majority's opinion that § 230(c)(1) would not protect Roommate. However, I cannot join the majority insofar as it eviscerates the distinction between traditional publishers and webhosts. See, e.g., Maj. Op. at 1164 (ignoring the Congressional carveout for interactive service providers and concluding that if a face-to-face transaction were illegal, it could not be legal in cyberspace).

[46] The statute also seeks to "remove disincentives for the development and utilization of blocking and filtering technologies" and "to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer." § 230(b)(4), (5).

[47] The second part of this subsection, § 230(c)(2), is more accurately characterized as an immunity provision, but is not relevant to our discussion here. Compare 47 U.S.C. § 230(c)(2) (stating that "[n]o provider or user of an interactive computer service shall be held liable . . .") (emphasis added).

[48] A user who is a room-seeker fills out an equivalent section named "About Me."

[49] The following is an example of a member profile:

The Basics

Rent: $800 per month + $800 deposit

Lease: 6 month

Date available: 09/01/04 (14 days)

Utilities included: N/A

Features: Private bedroom, Private bathroom

Residence & Vicinity

Building: House, 2 bed, 1.5 bath

Features: N/A

Location: (Central) Long Beach, CA

Household

Occupant: 1, Age 26, Male (straight)

Occupation: Student

Smoking habits: Outside smoker

Cleanliness: About average

Children: Children will not be living with us

Pets: Dog(s)

Preferences

Age group: 18-99

Gender: Male (straight or gay), Female (straight or lesbian)

Smoking: Smoking okay

Cleanliness level. Clean, Average, Messy

Pets: Dog okay. Cat okay, Caged pet okay

Children: Children okay

Comments

LOOKING FOR CHILL ROOMATE [sic] TO SHARE 2 BR

HOUSE WITH DOG AND FERRET-RENT 800/MO + utill.6mo.lease.

[50] Congress also stated in the CDA that "[i]t is the policy of the United States to — (1) to promote the continued development of the Internet and other interactive computer services and other interactive media," and "(4) to remove disincentives for the development and utilization of blocking and filtering technologies . . ." § 230(b)(1), (4) (emphasis added).

[51] The majority's notion of using a different definition of "development" digs the majority into a deeper hole. See Maj. Op. at 1167-69. For example, adopting the Wikipedia definition of "content development" — "the process of researching, writing, gathering, organizing and editing information for publication on web sites" — would run us smack into the sphere of Congressionally conferred immunity. Wikipedia, Content Development (Web), http://en.wikipedia.org/w/index.php?title= Content — development — web. & oldid = XXXXXXXXX (last visited Mar. 24, 2008). Both our circuit and others have steadfastly maintained that activities such as organizing or editing information are traditional editorial functions that fall within the scope of CDA immunity. See, e.g., Carafano, 339 F.3d at 1124-25; Zeran, 129 F.3d at 330. Likewise, an alternative definition of "development" from Webster's such as "a making usable or available" sweeps too broadly, as "making usable or available" is precisely what Google and Craigslist do. In an effort to cabin the reach of the opinion, the majority again goes back to whether the content is legal, i.e., a dating website that requires sex, race, religion, or marital status is legal because it is legal to discriminate in dating. See Maj. Op. at 1169. Of course this approach ignores whether the claim may be one in tort, such as defamation, rather than a statutory discrimination claim. And, this circularity also circumvents the plain language of the statute. Interestingly, the majority has no problem offering up potentially suitable definitions of "development" by turning to dictionaries, but it fails to explain why, and from where, it plucked its definition of "development" as "materially contributing to [the] alleged unlawfulness" of content. See Maj. Op. at 1168.

[52] Again, Roommate does not force users to disclose preferences as to roommate characteristics.

[53] The First Circuit has noted that "[i]t is not at all clear that there is a culpable assistance exception to Section 230 immunity[,]" similar to the notion of secondary liability under the Electronic Communications Privacy Act of 1986. Universal Commc'n, 478 F.3d at 421. But it also stated that it "need not decide whether a claim premised on active inducement might be consistent with Section 230 in the absence of a specific exception." Id.

[54] It is no surprise that there are countless specialized roommate sites. See, e.g., http:// islam.to/housing/index.php, http://christian-roommates.com, and http://prideroommates. com.

No. 13-5946.

Argued: May 1, 2014.
Decided and Filed: June 16, 2014.

ARGUED: David S. Gingras, GRINGAS LAW OFFICE, PLLC, Phoenix, Arizona, for Appellants.

Christopher D. Roach, ERIC C. DETERS & PARTNERS, P.S.C., Independence, Kentucky, for Appellee.

ON BRIEF: David S. Gingras, GRINGAS LAW OFFICE, PLLC, Phoenix, Arizona, Alexander C. Ward, Alexis B. Mattingly, HUDDLESTON BOLEN, LLP, Ashland, Kentucky, for Appellants.

Eric C. Deters, ERIC C. DETERS & PARTNERS, P.S.C., Independence, Kentucky, for Appellee.

Marc J. Randazza, RANDAZZA LEGAL GROUP, Las Vegas, Nevada, John C. Greiner, GRAYDON HEAD & RITCHEY LLP, Cincinnati, Ohio, Patrick J. Carome, Samir C. Jain, WILMER CUTLER PICKERING HALE AND DORR LLP, Washington, D.C., Junis L. Baldon, FROST BROWN TODD LLC, Louisville, Kentucky, William E. Sharp, ACLU OF KENTUCKY, Louisville, Kentucky for Amici Curiae.

Before: GUY, GIBBONS, and GRIFFIN, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

This case presents the issue of whether the Communications Decency Act of 1996 (CDA), 47 U.S.C. § 230, bars the state-law defamation claims of plaintiff-appellee Sarah Jones. Jones was the unwelcome subject of several posts anonymously uploaded to www.TheDirty.com, a popular website operated by defendants-appellants Nik Lamas-Richie and DIRTY WORLD, LLC ("Dirty World"), and of remarks Richie posted on the site. The website enables users to anonymously upload comments, photographs, and video, which Richie then selects and publishes along with his own distinct, editorial comments. In short, the website is a user-generated tabloid primarily targeting non-public figures.

In response to the posts appearing on www.TheDirty.com, Jones brought an action in federal district court alleging state tort claims of defamation, libel per se, false light, and intentional inflection of emotional distress. Richie and Dirty World claimed that § 230(c)(1) barred these claims. The district court rejected this argument and denied defendants-appellants' motion to dismiss, motion for summary judgment, motion to revise judgment, and motion for judgment as a matter of law. The district court also denied Richie's and Dirty World's motion for leave to file an interlocutory appeal. The case was submitted to a jury, twice. The first trial ended in a mistrial upon a joint motion. The second trial resulted in a verdict in favor of Jones for $38,000 in compensatory damages and $300,000 in punitive damages. On appeal, Richie and Dirty World maintain that § 230(c)(1) barred Jones's claims.

This is a case of first impression in this circuit. In Doe v. SexSearch.com, we "explicitly reserve[d] the question of [the] scope [of the CDA] for another day." 551 F.3d 412, 416 (6th Cir. 2008). We now consider when a website is not an "information content provider" under 47 U.S.C. § 230(f)(3) with respect to information it publishes such that § 230(c)(1) bars state-law tort claims predicated on that information.

Jones was found to be the object of defamatory content published on a user-generated, online tabloid; however, the judgment in her favor cannot stand. Under the CDA, Richie and Dirty World were neither the creators nor the developers of the challenged defamatory content that was published on the website. Jones's tort claims are grounded on the statements of another content provider yet seek to impose liability on Dirty World and Richie as if they were the publishers or speakers of those statements. Section 230(c)(1) therefore bars Jones's claims. Accordingly, we vacate the judgment in favor of Jones and reverse the district court's denial of Dirty World's and Richie's motion for judgment as a matter of law with instructions to enter judgment as a matter of law in their favor.

I.

Richie is currently employed as the manager of DIRTY WORLD, LLC ("Dirty World"), which owns and operates the website www.TheDirty.com. Richie is also the founder of www.DirtyScottsdale.com, which he started in March 2007. Richie created www.DirtyScottsdale.com as a forum to post comments and observations about residents of Scottsdale who he believed warranted comment. Richie's website garnered attention from national media, and, as the site increased in popularity, it branched out to cover more than seventy different cities in the United States and Canada. The site then adopted a geographically neutral name—www.TheDirty.com. The website receives approximately six hundred thousand visits each day and eighteen million visits each month.

As the website grew, its focus and format changed. In the beginning, Richie created nearly all the content on the site, and users could not directly upload content. This is no longer true. For the past several years and currently, users of the site, who colloquially refer to themselves as "The Dirty Army," may submit "dirt"—i.e., content that may include text, photographs, or video about any subject. Users may also post comments about the content submitted by others. The vast majority of the content appearing on www.TheDirty.com is comprised of submissions uploaded directly by third-party users.

The content submission form instructs users to "Tell us what's happening. Remember to tell us who, what, when, where, why." The content submission form requires users to submit a title and category for their submission as well as their city or college for indexing. Submissions appear on the website as though they were authored by a single, anonymous author—"THE DIRTY ARMY." This eponymous introduction is automatically added to every post that Richie receives from a third-party user. Many, but not all, of the submissions and commentaries appearing on the website relate to stories, news, and gossip about local individuals who are not public figures. The site receives thousands of new submissions each day. Richie or his staff selects and edits approximately 150 to 200 submissions for publication each day. The editing done to published submissions only consists of deletion. Richie or his staff briefly reviews each submission selected for publication to ensure that nudity, obscenity, threats of violence, profanity, and racial slurs are removed. Richie typically adds a short, one-line comment about the post with "some sort of humorous or satirical observation." Richie, however, does not materially change, create, or modify any part of the user-generated submission, nor does he fact-check submissions for accuracy. Apart from his clearly denoted comments appended at the end of each submission, which appear in bold-face text and are signed "-nik," Richie does not create any of the posts that appear on www.TheDirty.com. The bold-face text and signature are designed to distinguish editorial remarks from third-party submissions. Comments that appear in bold face and are signed "-nik" are only written and published by Richie.

Sarah Jones is a resident of northern Kentucky. Jones was a teacher at Dixie Heights High School in Edgewood, Kentucky, and a member of the Cincinnati BenGals, the cheerleading squad for the Cincinnati Bengals professional football team. From October 2009 to January 2010, Jones was the subject of several submissions posted by anonymous users on www.TheDirty.com and of editorial remarks posted by Richie.

First, on October 27, 2009, a visitor to www.TheDirty.com submitted two photographs of Jones and a male companion and the following post:

THE DIRTY ARMY: Nik, this is Sara J, Cincinnati Bengal Cheerleader. She's been spotted around town lately with the infamous Shayne Graham. She has also slept with every other Bengal Football player. This girl is a teacher too!! You would think with Graham's paycheck he could attract something a little easier on the eyes Nik!

Appearing directly beneath this post, Richie added: Everyone in Cincinnati knows this kicker is a Sex Addict. It is no secret . . . he can't even keep relationships because his Red Rocket has freckles that need to be touched constantly. -nik

Jones requested that the post be removed. Richie informed Jones that the post would not be removed.

Second, on December 7, 2009, a visitor submitted a photograph of Jones and the following post:

THE DIRTY ARMY: Nik, here we have Sarah J, captain cheerleader of the playoff bound cinci bengals. . Most ppl see Sarah has [sic] a gorgeous cheerleader AND highschool teacher. . yes she's also a teacher. . but what most of you don't know is. . Her ex Nate. . cheated on her with over 50 girls in 4 yrs. . in that time he tested positive for Chlamydia Infection and Gonorrhea. . so im sure Sarah also has both. . whats worse is he brags about doing sarah in the gym. . football field. . her class room at the school she teaches at DIXIE Heights.

Appearing directly after this post, Richie remarked: "Why are all high school teachers freaks in the sack? -nik"

Third, on December 9, 2009, a visitor submitted another photograph of Jones and a male companion and the following post:

THE DIRTY ARMY: Nik, ok you all seen the past posting of the dirty Bengals cheerleader/teacher . . . well here is her main man Nate. Posted a few pics of the infected couple. Oh an for everyone saying sarah is so gorgeous check her out in these non photoshopped pics.

Appearing directly after this post, Richie added:

Cool tribal tat man. For a second yesterday I was jealous of those high school kids for having a cheerleader teacher, but not anymore. -nik

Jones sent Richie over twenty-seven emails, pleading for Richie to remove these posts from the website, to no avail. Jones's father similarly wrote to Richie, also to no avail. She then sought legal help, and her attorney informed Richie that if the posts were not removed by December 14, 2009, Jones would file suit. The posts were not removed. Jones, qua Jane Doe, filed in federal district court this action on December 23, 2009, against Dirty World Entertainment Recordings, LLC, which operated a website called www.thedirt.com. Apparently, Jones sued the wrong party, as neither Richie nor Dirty World has or ever had any relationship with either Dirty World Entertainment Recordings, LLC, or www.thedirt.com.^[1] Nevertheless, the lawsuit sparked national media attention, which precipitated further postings on www.TheDirty.com regarding Jones.

For instance, on December 29, a visitor submitted a photograph and the following post:

THE DIRTY ARMY: Nik, i just saw the Huffington Post and I just [sic] the latest post on beat Bang-GALS cheer squad and back in May I was out clubbing in Cinci and those cheer chicks were hosting the club and i could not believe how ugly they were, here is some pics of them from that night.

Richie added:

I think they all need to be kicked off and the Cincinnati Bengals should start over. Note to self: Never try to battle the DIRTY ARMY. -nik

Also, on December 29, 2009, a visitor to the website published two photographs and the following post:

THE DIRTY ARMY: Nik since the Bengals organization loves you so much i decided to submit some pics from a recent cheerleader calendar release party I went to, to show how beat there squad is with out make up and being half naked. Reality is their cheerleaders are FUGLY and the whole NFL thinks they are beat.

Richie added:

I love how the DIRTY ARMY has a war mentality. . . why go after one ugly cheerleader when you can go after all the brown baggers. (Sorry Cleveland Browns that was not a stab at your girls.) -nik

On January 9, 2010, the October 27, 2009, submission was reposted after Richie added an additional comment, which specifically related to the 2009 NFL playoffs. After the litigation commenced, Richie posted a public letter to Jones:

If you know the truth then why do you care? With all the media attention this is only going to get worse for you. Your lawyer is trying to make a name for himself using you as his pawn. If anything me just seeing your face on the news right now will get you fired from your job. All you had to do is read the FAQ section like every other normal person to get stuff removed. You dug your own grave here Sarah. I am a very reasonable person . . . hope it was worth it. -nik.

He also removed the first three posts regarding Jones. The posts on www.TheDirty.com humiliated Jones, allegedly undermining her position as an educator, her membership in the Cincinnati BenGals, and her personal life.

Jones amended her action to proceed against Dirty World Entertainment Recordings, LLC, dba www.thedirt.com; Hooman Karamian, aka Nik Richie, aka Corbin Grimes; Dirty World, LLC, dba www.TheDirty.com; and Dirty World Entertainment, LLC, dba www.TheDirty.com, alleging claims of defamation, libel per se, false light, and intentional inflection of emotional distress. Dirty World moved to dismiss, arguing that the district court lacked jurisdiction over Dirty World and that Jones failed to state a claim upon which relief may be granted. Richie (formerly known as Hooman Karamian) also moved to dismiss, arguing insufficiency of service of process, lack of personal jurisdiction, and failure to state a claim upon which relief may be granted. The district court denied both motions. See Jones v. Dirty World Entm't Recordings, LLC (Jones II), No. 2009-219, 2011 WL 1457343, at *1-2 (E.D. Ky. Apr. 15, 2011); Jones v. Dirty World Entm't Recordings, LLC (Jones I), 766 F. Supp. 2d 828, 828-36 (E.D. Ky. 2011). In their motions to dismiss, both Dirty World and Richie argued that under the CDA, 47 U.S.C. § 230(c), they are immune from suit. The district court treated the CDA argument as a motion for summary judgment and granted Jones's oral motion for a period of discovery to respond. Jones II, 2011 WL 1457343, at *2; Jones I, 766 F. Supp. 2d at 836.

Dirty World and Richie then moved for summary judgment, arguing that § 230(c)(1) affords them immunity from liability for content created by third parties and that the content they created, as opposed to that created by third parties, constitutes non-actionable expressions of opinion that are non-defamatory as a matter of law. The district court denied the motion, holding that Dirty World and Richie are not entitled to immunity under the CDA. Jones v. Dirty World Entm't Recordings, LLC (Jones III), 840 F. Supp. 2d 1008, 1010-13 (E.D. Ky. 2012). The case was tried and submitted to a jury, but upon a joint motion by both parties, the court declared a mistrial.

Dirty World and Richie then filed a motion under Federal Rule of Civil Procedure 54(b), requesting that the court change its order holding that Dirty World and Richie were not entitled to immunity under the CDA. In the alternative, Dirty World and Richie moved for an order certifying the issue for an immediate interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The district court treated the motion as a second motion for summary judgment and denied it. The district court also denied the alternative motion for leave to file an interlocutory appeal. The case was again tried. See Jones v. Dirty World Entm't Recordings, LLC (Jones IV), 965 F. Supp. 2d 818, 819 (E.D. Ky. 2013). At the conclusion of the presentation of evidence in the second trial, Dirty World and Richie made a timely motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50. Their Rule 50 motion again claimed immunity. See id. The district court denied the motion, holding that "a website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts becomes a `creator' or `developer' of that content and is not entitled to immunity." Id. at 821. Thus, the district court concluded that "[d]efendants, when they re-published the matters in evidence, had the same duties and liabilities for re-publishing libelous material as the author of such materials."

The case was submitted to the second jury, which returned a verdict in favor of Jones for $38,000 in compensatory damages and $300,000 in punitive damages. The district court entered a judgment in favor of Jones. Dirty World and Richie timely filed a notice of appeal from the district court's (1) entry of final judgment in favor of Jones, (2) denial of their motions to dismiss for lack of personal jurisdiction, and (3) denial of their motion for judgment as a matter of law. The sole issue on appeal is whether the district court erred in denying Dirty World's and Richie's motion for judgment as a matter of law by holding that the CDA does not bar Jones's state tort claims.

II.

A.

"We review a district court's denial of a motion for judgment as a matter of law or a renewed motion for judgment as a matter of law de novo." Noble v. Brinker Int'l, Inc., 391 F.3d 715, 720 (6th Cir. 2004) (citing United States v. Alpine Indus., Inc., 352 F.3d 1017, 1022 (6th Cir. 2003)). The only claim that Dirty World and Richie raise on appeal is entitlement to immunity under the CDA. Appellants argued immunity under the CDA several times before the district court; hence, the claim is properly presented on appeal, cf. Dunlap v. Mich. Dep't of Corr., 65 F. App'x 971, 972 (6th Cir. 2003), and reviewed de novo, Smith v. Leis, 407 F. App'x 918, 927 (6th Cir. 2011) ("Claims of entitlement to immunity are questions of law, therefore they are reviewed de novo."). Any other claim or defense that they argued before the district court is waived. See Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 544 n.8 (6th Cir. 2002) ("It is well established that an issue not raised in a party's briefs on appeal may be deemed waived." (citing Ahlers v. Schebil, 188 F.3d 365, 374 (6th Cir. 1999))).

B.

We begin with a discussion of § 230 of the CDA. Section 230 of the CDA immunizes providers of interactive computer services^[2] against liability arising from content created by third parties. Section 230(c)(1) provides that "[n]o 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." Although § 230(c)(1) does not explicitly mention immunity or a synonym thereof, this and other circuits have recognized the provision to protect internet service providers for the display of content created by someone else. Seaton v. TripAdvisor LLC, 728 F.3d 592, 599 n.8 (6th Cir. 2013) (recognizing that § 230(c)(1) provides immunity); see also Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006) ("The majority of federal circuits have interpreted the CDA to establish broad federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.") (internal citations and quotations omitted); accord Johnson v. Arden, 614 F.3d 785, 791 (8th Cir. 2010); Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir. 2008); Chicago Lawyers' Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666, 671 (7th Cir. 2008); Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418-19 (1st Cir. 2007); Batzel v. Smith, 333 F.3d 1018, 1026-30 (9th Cir. 2003); Green v. Am. Online (AOL), 318 F.3d 465, 471 (3d Cir. 2003); Ben Ezra, Weinstein, & Co. v. AOL, 206 F.3d 980, 984-85 (10th Cir. 2000); Zeran v. AOL, 129 F.3d 327, 328 (4th Cir. 1997). Furthermore, § 230(e)(3) provides 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." 47 U.S.C. § 230(e)(3).

Section 230 marks a departure from the common-law rule that allocates liability to publishers or distributors of tortious material written or prepared by others. See Batzel, 333 F.3d at 1026-27. "Absent § 230, a person who published or distributed speech over the Internet could be held liable for defamation even if he or she was not the author of the defamatory text, and, indeed, at least with regard to publishers, even if unaware of the statement." Id. (citing Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995) (pre-CDA case holding internet service provider liable for posting by third party on one of its electronic bulletin boards)). Congress, however, decided to treat the internet differently. Id.

At its core, § 230 bars "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." Zeran, 129 F.3d at 330. In Zeran, a case arising shortly after the enactment of the CDA, the panel considered a defamation claim against America Online (AOL) alleging "that AOL unreasonably delayed in removing defamatory messages posted by an unidentified third party, refused to post retractions of those messages, and failed to screen for similar postings thereafter." Id. at 328. The Zeran court explained that the CDA squarely barred this claim. See id. at 330-35.

By barring publisher-liability and notice-liability defamation claims lodged against interactive computer service providers, § 230 serves three main purposes. First, it "maintain[s] the robust nature of Internet communication and, accordingly, . . . keep[s] government interference in the medium to a minimum." Id. at 330; see also 47 U.S.C. § 230(b)(2) ("It is the policy of the United States . . . 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."). Second, the immunity provided by § 230 protects against the "heckler's veto" that would chill free speech. Without § 230, persons who perceive themselves as the objects of unwelcome speech on the internet could threaten litigation against interactive computer service providers, who would then face a choice: remove the content or face litigation costs and potential liability. See Zeran, 129 F.3d at 331 ("The specter of tort liability in an area of such prolific speech would have an obvious chilling effect."). Immunity shields service providers from this choice. See Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 254 (4th Cir. 2009) ("[I]mmunity is an immunity from suit rather than a mere defense to liability and . . . is effectively lost if a case is erroneously permitted to go to trial." (internal quotation marks omitted)). Third, § 230 encourages interactive computer service providers to self-regulate. An early internet case, Stratton Oakmont, held that at common law the provider of an electronic message-board service was potentially liable for its user's defamatory message because it had engaged in voluntary self-policing of the third-party content made available through its service. 1995 WL 323710, at *4. Section 230 set out to abrogate this precedent. See S. Rep. No. 104-230, at 194 (1996) ("One of the specific purposes of [§ 230] is to overrule Stratton Oakmont v. Prodigy and any other similar decisions. . . ."); see also, e.g., Zeran, 129 F.3d at 331 ("Another important purpose of § 230 was to encourage service providers to self-regulate the dissemination of offensive material over their services. In this respect, § 230 responded to [Stratton Oakmont].").

The protection provided by § 230 has been understood to merit expansion. Congress has extended the protection of § 230 into new areas. See 28 U.S.C. § 4102(c)(1) (providing that U.S. courts "shall not recognize or enforce" foreign defamation judgments that are inconsistent with § 230); 47 U.S.C. § 941(e)(1) (extending § 230 protection to new class of entities). And courts have construed the immunity provisions in § 230 broadly. See, e.g., Nemet, 591 F.3d at 254 (collecting cases). Moreover, "close cases . . . must be resolved in favor of immunity, lest we cut the heart out of section 230 by forcing websites to face death by ten thousand duck-bites, fighting off claims that they promoted or encouraged—or at least tacitly assented to—the illegality of third parties." Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521 F.3d 1157, 1174 (9th Cir. 2008) (en banc).

Section 230(c)(1)'s grant of immunity is not without limits, however.^[3] It applies only to the extent that an interactive computer service provider is not also the information content provider of the content at issue. An "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." 47 U.S.C. § 230(f)(3). A website operator can simultaneously act as both a service provider and a content provider. If a website displays content that is created entirely by third parties, then it is only a service provider with respect to that content—and thus is immune from claims predicated on that content. But if a website operator is in part responsible for the creation or development of content, then it is an information content provider as to that content—and is not immune from claims predicated on it. Carafano v. Metrosplash.com, Inc., 339 F.3d 1119, 1123 (9th Cir. 2003) ("Under the statutory scheme, an `interactive computer service' qualifies for immunity so long as it does not also function as an `information content provider' for the portion of the statement or publication at issue."). Thus, a website may be immune from liability for some of the third-party content it publishes but be subject to liability for the content that it is responsible for as a creator or developer. See Roommates, 521 F.3d at 1162-63, 1165; see also Batzel, 333 F. 3d at 1033. In short, immunity under the CDA depends on the pedigree of the content at issue.

Aware of this limit on § 230 immunity, courts have recognized that § 230 bars a claim if (1) the defendant asserting immunity is an interactive computer service provider, (2) the particular information at issue was provided by another information content provider, and (3) the claim seeks to treat the defendant as a publisher or speaker of that information. See, e.g., Universal Commc'n Sys., 478 F.3d at 418. By contrast, a defendant is not entitled to protection from claims based on the publication of information if the defendant is "responsible, in whole or in part, for the creation or development of [the] information." 47 U.S.C. § 230(f)(3).

C.

This case turns on how narrowly or capaciously the statutory term "development" in § 230(f)(3) is read. The district court held, and Jones maintains on appeal, that Dirty World and Richie are not immune under the CDA because Dirty World and Richie are information content providers with respect to the information underlying Jones's defamation claims because they developed that information. See Jones IV, 965 F. Supp. 2d at 823. The district court set forth a test to measure whether a defendant is responsible for the development of the information grounding a plaintiff's state tort claim. According to the district court, "a website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts becomes a `creator' or `developer' of that content and is not entitled to immunity." Id. at 821. Dirty World and Richie argue that the district court's test of development is erroneous, swallowing the protection provided by § 230(c)(1) and undermining the purposes served by the CDA. They maintain that, properly understood, they did not develop the statements forming the basis of Jones's defamation claims.

In our two opinions addressing the CDA, this court has neither expounded the meaning of "development" in § 230(f)(3) nor addressed the scope of immunity that § 230(c) provides. See Seaton, 728 F.3d at 599 n.8; Doe, 551 F.3d at 416. Nevertheless, drawing inferences from these cases, it is not difficult to identify an overly inclusive and exclusive reading of "development." An overly inclusive interpretation of "development" in § 230(f)(3) would posit that a website operator is responsible for the development of content created by a third party merely by displaying or allowing access to it. Cf. Roommates, 521 F.3d at 1167 ("It's true that the broadest sense of the term `develop' could include the functions of an ordinary search engine—indeed, just about any function performed by a website."). But to read the term so broadly would defeat the purposes of the CDA and swallow the core immunity that § 230(c) provides for the "exercise of a publisher's traditional editorial functions." See Zeran, 129 F.3d at 330; see also Roommates, 521 F.3d at 1167 (stating that "development" cannot be read to swallow § 230 immunity). Our recognition that the CDA affords immunity forecloses this overbroad reading of "development."

By contrast, an overly exclusive interpretation of "development" would exclude all the publishing, editorial, and screening functions of a website operator from the set of actions that the term denotes. Some courts have implied this interpretation, however. See, e.g., Doe v. SexSearch.com, 502 F. Supp. 2d 719, 727 (N.D. Ohio 2007), aff'd, 551 F.3d 412 (6th Cir. 2008). But we have refused to adopt it. See Doe, 551 F.3d at 415 ("[W]e do not reach the question of whether the [CDA] provides SexSearch with immunity from suit. We do not adopt the district court's discussion of the Act, which would read § 230 more broadly than any previous Court of Appeals decision has read it, potentially abrogating all state- or common-law causes of action brought against interactive Internet services."). We have maintained that, despite the CDA, some state tort claims will lie against website operators acting in their publishing, editorial, or screening capacities.

Therefore, limited circuit precedent suggests the proper interpretation of "development of information provided through the Internet," § 230(f)(3), means something more involved than merely displaying or allowing access to content created by a third party; otherwise § 230(c)(1) would be meaningless. And instances of development may include some functions a website operator may conduct with respect to content originating from a third party. See SexSearch.com, 551 F.3d at 415.

Beyond providing a basis to identify overly inclusive and exclusive interpretations of "development" in § 230(f)(3), our cases have not further illuminated the scope of the immunity furnished by the CDA. Decisions from our sister circuits, however, provide a workable measure of "development" that not only preserves the broad immunity the CDA provides for website operators' exercise of traditional publisher functions but also highlights the limited circumstances under which exercises of those functions are not protected. The leading case is Roommates. There, the Ninth Circuit sitting en banc discussed the meaning of "development" at length. See 521 F.3d at 1167-68. In Roommates, as a condition for using an online roommate-finding service, a website required each user seeking to offer living space to create a profile describing his desired roommate and, in so doing, required that user "to disclose his sex, sexual orientation and whether he would bring children to a household." Id. at 1161. The website also encouraged its users to provide additional comments describing themselves and their desired roommate. Id. The fair housing councils of San Fernando Valley and San Diego sued, alleging that the website violated the Fair Housing Act and state housing discrimination laws. Id. at 1162. The court held that a website operator was not entitled to immunity with respect to allegedly unlawful content that it required its users to submit and with respect to the search engine that was built on that content. Id. at 1165-68. But the court also held that the website was immune as to claims based on the website's encouragement that users provide additional comments, some of which were alleged to be discriminatory. Id. at 1173-75. To arrive at these divergent holdings, the court applied a specific measure of development:

[W]e interpret the term "development" as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, 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.

521 F.3d at 1167-68 (emphasis added). A material contribution to the alleged illegality of the content does not mean merely taking action that is necessary to the display of allegedly illegal content. Rather, it means being responsible for what makes the displayed content allegedly unlawful. Cf. Chicago Lawyers' Comm., 519 F.3d at 671 ("Causation . . . must refer to causing a particular statement to be made, or perhaps the discriminatory content of a statement. That's the sense in which a non-publisher can cause a discriminatory ad, while one who causes the forbidden content may not be a publisher."). "In an abundance of caution," the Roommates court gave several examples of applications of the "material contribution" test. For example:

If an individual uses an ordinary search engine to query for a "white roommate," the search engine has not contributed to any alleged unlawfulness in the individual's conduct; providing neutral tools to carry out what may be unlawful or illicit searches does not amount to "development" for purposes of the immunity exception. A dating website that requires users to enter their sex, race, religion and marital status through drop-down menus, and that provides means for users to search along the same lines, retains its CDA immunity insofar as it does not contribute to any alleged illegality.

521 F.3d at 1169. In contrast to this example, the court observed that Roommates required subscribers to disclose information about protected characteristics as a condition of accessing its service and "designed its search and email systems to limit the listings available to subscribers based on sex, sexual orientation and presence of children." Id. at 1166, 1169. Because Roommates required information about protected characteristics and engineered its search and email systems to limit access to housing listings based on those protected characteristics, the court held that the website materially contributed to the alleged illegality of hiding certain listings. See id. at 1166-69, 1172.

The court also gave specific examples of the application of the material contribution test for a website that solicits, edits, and displays content originating from third parties (i.e., a website akin to www.TheDirty.com). For example:

A website operator who edits user-created content—such as by correcting spelling, removing obscenity or trimming for length—retains his immunity for any illegality in the user-created content, provided that the edits are unrelated to the illegality. However, a website operator who edits in a manner that contributes to the alleged illegality—such as by removing the word "not" from a user's message reading "[Name] did not steal the artwork" in order to transform an innocent message into a libelous one—is directly involved in the alleged illegality and thus not immune.

Id. at 1169 (alteration in original); see also Batzel, 333 F.3d at 1035 (holding that an editor of an email newsletter who received and published allegedly actionable information, adding a short headnote, was immune under § 230 because an editor's changes to the length and spelling of third-party content do not contribute to the libelousness of the message). The Roommates court further explained:

And any activity that can be boiled down to deciding whether to exclude material that third parties seek to post online is perforce immune under section 230. But if the editor publishes material that he does not believe was tendered to him for posting online, then he is the one making the affirmative decision to publish, and so he contributes materially to its allegedly unlawful dissemination. He is thus properly deemed a developer and not entitled to CDA immunity.

521 F.3d at 1170-71 (internal citations omitted).

Accordingly, the Roommates court held that § 230 barred the fair housing councils' claims grounded on the allegedly discriminatory statements displayed through Roommate's operation of the "additional comments" section of its website. Id. at 1173. The court explained:

Roommate publishes these comments as written. It does not provide any specific guidance as to what the essay should contain, nor does it urge subscribers to input discriminatory preferences. Roommate is not responsible, in whole or in part, for the development of this content, which comes entirely from subscribers and is passively displayed by Roommate. Without reviewing every essay, Roommate would have no way to distinguish unlawful discriminatory preferences from perfectly legitimate statements. Nor can there be any doubt that this information was tendered to Roommate for publication online. This is precisely the kind of situation for which section 230 was designed to provide immunity.

Id. at 1173-74 (internal citation omitted). Furthermore, the court rejected the argument made by the fair housing councils that the website developed the allegedly illegal content displayed in the additional comments section because the website encouraged the submission of discriminatory preferences. Id. at 1174. The court reasoned that "[t]he fact that Roommate encourages subscribers to provide something in response to the prompt is not enough to make it a `develop[er]' of the information." Id. (second alteration in original). Because "Roommate does not tell subscribers what kind of information they should or must include as `Additional Comments,' and certainly does not encourage or enhance any discriminatory content created by users," the court held that the operation of the additional comments section did not materially contribute to the alleged unlawfulness of the content displayed on the website's comments section. Id.

The material contribution test has been adopted and applied by other circuits, with instructive effect. Compare Nemet, 591 F.3d at 257-58 (holding that a website did not contribute to alleged illegality), with Accusearch, 570 F.3d at 1200-01 (holding that a website did contribute to alleged illegality). In Nemet, Nemet, the owner of a Chevrolet dealership, sued Consumeraffairs.com, a website allowing users to comment on the quality of goods and services, after various allegedly tortious, third-party posts appeared on the website relating to automobiles sold or serviced by him. 591 F.3d at 252. The website claimed immunity under the CDA. Nemet responded that the website was, in fact, an information content provider under § 230(f)(3), and was thus liable as a co-developer, because of the "structure and design of its website" and because "Consumeraffiars.com solicit[ed] its customers' complaints [and] steered them into specific categor[ies]." Id. at 256 (first and third alterations in original) (quotation marks omitted). The panel affirmed the district court's grant of the website's motion to dismiss because "[e]ven accepting as true all of the facts Nemet pled as to Consumeraffairs.com's liability for the structure and design of its website, the amended complaint does not show, or even intimate, that Consumeraffairs.com contributed to the allegedly fraudulent nature of the comments at issue." Id. at 257 (internal quotation marks omitted).

In Accusearch, Accusearch operated a website that sold the confidential information of individuals, including their telephone records, which the website paid researchers to obtain. 570 F.3d at 1190. The Federal Trade Commission brought suit against the website operator to curtail its sale of confidential information and to disgorge its profits from the sale of information in telephone records. Id. Accusearch claimed immunity under the CDA, arguing that it merely displayed the allegedly illegal conduct that originated from its third-party researchers. Id. The panel rejected this argument and held that the website operator developed the confidential telephone records within the meaning of the CDA. The panel cited Roommates's material contribution test and found "[t]hat language applies to Accusearch's role in this case." Id. at 1200 (citing Roommates, 570 F.3d at 1168). The Accusearch panel reasoned that "[b]y paying its researchers to acquire telephone records, knowing that the confidentiality of the records was protected by law, it contributed mightily to the unlawful conduct of its researchers." Id. The panel noted that "the offensive postings were Accusearch's raison d'etre and it affirmatively solicited them." Id. It thus found that "Accusearch's actions were not `neutral' with respect to generating offensive content; on the contrary, its actions were intended to generate such content." Id. at 1201. Accordingly, the panel held that "Accusearch is not entitled to immunity under the CDA." Id.

Other circuits, while not explicitly relying on Roommates's material contribution test, have issued decisions consistent with it. See, e.g., Johnson, 614 F.3d at 791 (holding that a website hosting company was immune to state tort claims grounded on unwelcome content posted to a client's website); Chicago Lawyers' Comm., 519 F.3d at 671 (holding that craigslist.com was immune to fair housing claims based on discriminatory listings posted by third parties); Green, 318 F.3d at 471 (holding that AOL was immune to state tort claims grounded on third-party content); Ben Ezra, 206 F.3d at 984-85 (holding that defendant was immune to the defamation claim when it made its own editorial decisions with respect to third-party information published on its website); Zeran, 129 F.3d at 330-35.

D.

Consistent with our sister circuits, we adopt the material contribution test to determine whether a website operator is "responsible, in whole or in part, for the creation or development of [allegedly tortious] information." 47 U.S.C. § 230(f)(3). And we expressly decline to adopt the definition of "development" set forth by the district court.

The district court read the foregoing decisions, identified Roommates as the guiding precedent, but derived a different rule. In its memorandum opinion explaining the denial of Dirty World's and Richie's Rule 50 motion, the district court gave two formulations of a rule providing when the CDA does not bar a plaintiff's claim. First, the district court said that a "website owner who intentionally encourages illegal or actionable third-party postings to which he adds his own comments ratifying or adopting the posts becomes a `creator' or `developer' of that content and is not entitled to immunity." Jones IV, 965 F. Supp. 2d at 821. Second, in a different formulation, the district court said that "if. . . [website] owners, as in the instant case, invite invidious postings, elaborate on them with comments of their own, and call upon others to respond in kind, the immunity does not apply." Id. at 822. The district court arrived at these rules by over-reading the operative language contained in the analytic parts of Johnson, Accusearh, and Chicago Lawyers' Committee. See id. at 820 (finding that the Johnson "ruling was based on the fact that `the record contains no evidence that [the internet service provider] designed its website to be a portal for defamatory material or [did] anything to induce defamatory postings'" (alterations in original) (quoting Johnson, 614 F.3d at 792)); id. (finding that the Accusearch court "held that one is not `responsible' for `developing' allegedly actionable information only `if one's conduct was neutral with respect to the offensiveness of the content'" (quoting Accusearch, 570 F.3d at 1199); id. at 820 (finding that Chicago Lawyers' Committee "noted that `[n]othing in the service craigslist offers induces anyone to post any particular listing or express a preference for discrimination'" (alteration in original) (quoting Chicago Lawyers' Comm., 519 F.3d at 671-72)). The district court read "inducement" to mean invitation and "neutral with respect to the offensiveness of the content" as a description of a website's orientation, not of a condition that users upload unlawful content, cf. Roommates, 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 content. Some of this content will be unwelcome to others—e.g., unfavorable reviews of consumer products and services, allegations of price gouging, complaints of fraud on consumers, reports of bed bugs, collections of cease-and-desist notices relating to online speech. And much of this content is commented upon by the website operators who make the forum available. Indeed, much of it is "adopted" by website operators, gathered into reports, and republished online. Under an encouragement test of development, these websites would lose the immunity under the CDA and be subject to hecklers' suits aimed at the publisher. Moreover, under the district court's rule, courts would then have to decide what constitutes "encouragement" in order to determine immunity under the CDA—a concept that is certainly more difficult to define and apply than the Ninth Circuit's material contribution test. See Zeran, 129 F.3d at 333. Congress envisioned an uninhibited, robust, and wide-open internet, see § 230(a)(1)-(5), but the muddiness of an encouragement rule would cloud that vision. Accordingly, other courts have declined to hold that websites were not entitled to the immunity furnished by the CDA because they selected and edited content for display, thereby encouraging the posting of similar content. See, e.g., Roommates, 521 F.3d at 1174 ("Such weak encouragement cannot strip a website of its section 230 immunity, lest that immunity be rendered meaningless as a practical matter."); Batzel, 333 F.3d at 1031. We do the same.

The district court also suggested that when an interactive computer service provider adds commentary to third-party content that "ratifies or adopts" that content, then the provider becomes a "creator" or "developer" of that content and is not entitled to the CDA's protection. Jones IV, 965 F. Supp. 2d at 821; see also id. at 823 ("Thus, Richie's conduct cannot be said to have been `neutral with respect to the offensiveness of the content,' such that he is not `responsible' for it within the meaning of 47 U.S.C. § 230(f)(3)."). An adoption or ratification theory, however, is not only inconsistent with the material contribution standard of "development" but also abuses the concept of responsibility. A website operator cannot be responsible for what makes another party's statement actionable by commenting on that statement post hoc. To be sure, a website operator's previous comments on prior postings could encourage subsequent invidious postings, but that loose understanding of responsibility collapses into the encouragement measure of "development," which we reject. See, e.g., Roommates, 521 F.3d at 1174; Batzel, 333 F.3d at 1031. As other courts have recognized, the adoption theory of "development" would undermine the CDA for the same reasons as an encouragement theory. See Parisi v. Sinclair, 774 F. Supp. 2d 310, 316 (D.D.C. 2011) (dismissing plaintiffs' claims as barred by the CDA despite their argument that defendant "adopted" the statements at issue as its own and finding that "it would be contrary to the purpose of the CDA, which sought to encourage the vibrant and competitive free market of ideas on the Internet, by establishing immunity for internet publication of third-party content to require a fact-based analysis of if and when a defendant adopted particular statements and revoke immunity on that basis" (internal citations and quotation marks omitted)).

III.

We now apply the material contribution measure of "development" to the facts of this case. Jones's defamation claims target the statements that were posted by a third party on October 27 and December 7, 2009. Because Dirty World and Richie did not materially contribute to the illegality of those statements, the CDA bars Jones's claims. See Nemet, 591 F.3d at 260 (affirming dismissal where plaintiff failed to show defendant "was responsible for the creation or development of the allegedly defamatory content at issue" (emphasis added)).

Dirty World and Richie did not author the statements at issue; however, they did select the statements for publication. But Richie and Dirty World cannot be found to have materially contributed to the defamatory content of the statements posted on October 27 and December 7, 2009, simply because those posts were selected for publication. See Batzel, 333 F.3d at 1035 (holding that an editor of an email newsletter who received and published allegedly actionable information, adding a short headnote, was immune under § 230 because an editor's changes to the length and spelling of third-party content do not contribute to the libelousness of the message). Nor can they be found to have materially contributed to the defamatory content through the decision not to remove the posts. See Zeran, 129 F.3d at 330 (holding CDA immunity applied even though "AOL unreasonably delayed in removing defamatory messages posted by an unidentified third party, refused to post retractions of those messages, and failed to screen for similar postings thereafter"). The CDA expressly bars "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." Id.

Unlike in Roommates, the website that Richie operated did not require users to post illegal or actionable content as a condition of use. Cf. Roommates, 521 F.3d at 1165-68. Nor does the name of the website, www.TheDirty.com, suggest that only illegal or actionable content will be published. Unlike in Accusearch, Richie or Dirty World did not compensate users for the submission of unlawful content. Cf. Accusearch, 570 F.3d at 1200-01. The website's content submission form simply instructs users to "[t]ell us what's happening. Remember to tell us who, what, when, where, why." The form additionally provides labels by which to categorize the submission. These tools, neutral (both in orientation and design) as to what third parties submit, do not constitute a material contribution to any defamatory speech that is uploaded. See Nemet, 591 F.3d at 256 (finding that the "structure and design of [defendant's] website" and the website's "solicit[ion of] its customers' complaints [and] steer[ing] them into specific categor[ies]" did not constitute development under § 230(f)(3)" (fifth alteration in original) (internal quotation marks omitted)); Roommates, 521 F.3d at 1173-74 (holding that § 230 barred the fair housing councils' claims grounded on the discriminatory statements displayed through Roommate's operation of the "additional comments" section of its website).

Further, Richie's comment on the December 7 post—viz., "Why are all high school teachers freaks in the sack?"—although absurd, did not materially contribute to the defamatory content of the statements uploaded on October 27 and December 7, 2009. Richie's remark was made after each of the defamatory postings had already been displayed. It would break the concepts of responsibility and material contribution to hold Richie responsible for the defamatory content of speech because he later commented on that speech. Although ludicrous, Richie's remarks did not materially contribute to the defamatory content of the posts appearing on the website. More importantly, the CDA bars claims lodged against website operators for their editorial functions, such as the posting of comments concerning third-party posts, so long as those comments are not themselves actionable. See Zeran, 129 F.3d at 330; see also 47 U.S.C. § 230(f)(3).

To be sure, Richie was an information content provider as to his comment on the December 7 post. But Jones did not allege that Richie's comments were defamatory. And the district court did not hold that Richie's comments were themselves tortious. Rather, the court concluded that those comments "effectively ratified and adopted the defamatory third-party post" and thereby developed the defamatory statements, thus ruling that the CDA did not bar Jones's claims. Jones IV, 965 F. Supp. 2d at 823 ("Defendants are mistaken, for the salient point about Richie's tagline is not that it was defamatory itself and thus outside CDA immunity, but rather that it effectively ratified and adopted the defamatory third-party post."). The district court's adoption or ratification test, however, is inconsistent with the material contribution standard of "development" and, if established, would undermine the CDA. Therefore, Dirty World and Richie did not develop the statements forming the basis of Jones's tort claims and accordingly are not information content providers as to them.

Because (1) the defendants are interactive service providers, (2) the statements at issue were provided by another information content provider, and (3) Jones's claim seeks to treat the defendants as a publisher or speaker of those statements, the CDA bars Jones's claims. See Universal Commc'n Sys., 478 F.3d at 418. Given the role that the CDA plays in an open and robust internet by preventing the speech-chilling threat of the heckler's veto, we point out that determinations of immunity under the CDA should be resolved at an earlier stage of litigation.^[4]See Nemet, 591 F.3d at 254 ("[I]mmunity is an immunity from suit rather than a mere defense to liability [and] is effectively lost if a case is erroneously permitted to go to trial.").

IV.

We note that the broad immunity furnished by the CDA does not necessarily leave persons who are the objects of anonymously posted, online, defamatory content without a remedy. In this case, Jones conceded that she did not attempt to recover from the person(s) whose comments Richie elected to publish. She conceded that she did not attempt to subpoena Richie or Dirty World to discover who authored the defamatory posts. Instead, she sued Dirty World and Richie. But, under the CDA, Jones cannot seek her recovery from the online publisher where that publisher did not materially contribute to the tortious content. Congress envisioned a free and open internet, see § 230(a)(1)-(5), and the immunity provision of § 230(c)(1), which subverts common-law publisher-liability, serves that purpose. While some exercises of the considerable freedom that Congress allowed online publishers are regrettable, freedom and its uses are distinct. Congress enacted § 230(c)(1) to preserve a free internet, and that enactment resolves this case.

For the foregoing reasons, we vacate the judgment in favor of Jones and reverse the district court's denial of Dirty World's and Richie's motion for judgment as a matter of law with instructions to enter judgment as a matter of law in their favor.

[1] In his affidavit, Richie stated that www.thedirty.com is owned and operated by Dirty World, LLC, not Dirty World Entertainment Recordings, LLC. In her second amended complaint, Jones properly added Dirty World, LLC dba Thedirty.com as a party.

[2] "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." 47 U.S.C. § 230(f)(2). These providers include broadband providers, hosting companies, and website operators like Dirty World and Richie.

[3] Section 230(e) outlines a few exceptions, such as for claims under intellectual property laws. See 47 U.S.C. § 230(e)(2) ("Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property."). These exceptions to § 230(c) immunity are inapplicable in this case.

[4] Certification of the interlocutory appeal sought by Dirty World and Richie could have obviated the need for the second trial. An even earlier interlocutory appeal would have resolved the case prior to trial.