1 19

- 3574 La Liberte v. Reid 

# United States Court of Appeals **for the Second Circuit**

A UGUST T ERM 2019 No. 19

- 3574

R OSLYN L A L IBERTE , Plaintiff

- Appellant ,

v.
J OY R EID , Defendant

- Appellee

.
A RGUED : M AY 14, 2020 D ECIDED : J ULY 15 , 20 20

Before: KEARSE, JACOBS, CABRANES , Circuit Judges

. Roslyn La Liberte appeals from the September 30, 2019 judgment of the

United States District Court for the Easte rn District of New York (Irizarry , Ch. J

. ) ,
which both dismiss ed her defamation claim against Joy Reid under Rule 12(b)(6)

and “ s tr uck” the claim under California’s Anti

- Strateg ic Lawsuits Against Public
Participation (anti

- SLAPP ) statute. We VACATE that judgment and REMAND
the case for further proceedings consistent with this opinion.2 We hold ( for the first time ) that California’s anti

- SLAPP statute is
inapplicable in federal court because it conflicts with Federal Rules of Civil

Procedure 12 and 56. We also vacate the dismissal of the defamation claim under
Rule 12(b)(6) . As to one o f the statements at issue , the court erroneously deemed

La Liberte to be a limited purpose public figure ( and accordingly dismiss ed for

failure to plead actual malice ); as to the other, t he court mischaracteriz ed it as
nonactionable opinion. We affirm the district court’s conclusion that Reid does
not qualify for immunity under section 230 of the Communications Decency Act.

____________________ G. TAYLOR WILSON (L. Lin Wood, Nicole Jennings Wade, on the brief ), L. Lin Wood, P.C., Atlanta, GA, for Plaintiff

- Appellant Roslyn La Liberte

. JOHN H. REICHMAN (Jason L. Libou, on the brief ), Wachtel Missry LLP, New York, NY, for Defendant

Appellee Joy Reid.
The Reporters Committee for Freedom of the Press and 21 Media Organizations , Washington, DC, (Bruce D. Brown and Katie Townsend), filed a brief as Amici Curiae, in support of Defendant

- Appellee.3 J ACOBS , Circuit Judge :

P laintiff Roslyn La Liberte spoke at a 2018 city c ouncil meeting to oppose

Cali fornia’ s sanctuary

- state law ; soon after, a social media activist posted a photo
showing the plaintiff with open mouth in front of a minority teenager ; the
caption was that perso ns (unnamed) had yelled specific racist remarks at th e

young man in the photo. Defendant Joy Reid, a personality on cable television,
retweeted that post , an act that is not alleged to be de famatory. The defamation

claim is based on Reid’s two later posts: her June 29 post show ed the photograph

and attribut ed the specific racist remarks to La Liberte ; her July 1 post , to the

same effect , juxtapos ed the photograph with the 1957 image of a white woman in
Little Rock screaming execrations at a Black child trying to go to school.

T h e teenager who was photograph ed with La Liberte soon after publicly
explained that La Liberte did not scream at him and that they were having a civil

discussion

. La Liberte sued Reid for defamation in the United States District

Court for the Eastern District of New York

.
The district court (Irizarry, Ch. J

. ) rejected Reid’ s defense of immunity

under section 230 of the C ommunications D ecency A ct , see 47 U.S.C. § 230(c)(1)
(“Section 230”) , but nevertheless dismissed La Liberte’s defamation claim as to4 both of Reid’s posts. The court deemed La Liberte to be a limited purpose public
figure and held that she failed to allege actual malice as to the first post , and
rejected the claim as to the second post on the ground that it was nonactionable
opinion. Moreover, the court “ struck ” La Liber te’s defamation claim

-- and
imposed attorneys’ fees (to be assessed)

-- under California’s Anti

- Strategic

L awsuits Against Public Participation (“anti

- SLAPP”) statute for failure to

establish “ a probability t hat the plaintiff will prevail

. ” Cal. Civ. Proc. Code §
425.16(b)(1) ,(c)(1)

. La Liberte appeals on the ground s that she was not a limited

purpose public figure , that both posts were defamatory , and that California’s

anti

- SLAPP statute is inapplicable in federal court. Reid argues that the court

er roneously denied Section 230 immunity as to her first post.
As a matter of first impression in this C ircuit, we hold that California’s

anti

- SLAPP statute is inapplicable in federal court because it increas es a
plaintiff’s burden to overcome pretrial dismissal , and thus conflicts with Federal

Rules of Civil Procedur e 12 and 56 (Point I).
As to the merits, we agree wit h the district court that Reid cannot claim
immunity under S ection 230 of the Communications Decency Act (Point II). This

lawsuit does not treat Reid as “ the publisher or speaker of any information5 prov ided by another information content prov ider .” 47 U.S.C. § 230(c)(1) (emphasis
added) . To the contrary , s he i s the sole author of both allegedly defamatory

posts.
We disagree with the rest of the district court’s analysis under Rule
12(b)(6). La Liberte was not a public figure on the matter in controversy,
primarily because she lacked the regular and continuing media access that is a
hallmark of public

- figure status. (Point III). Accordingly, she was not required
to allege th at Reid acted with actual malice as to either post. Moreover, the court

erred b y characterizing Reid’s second post as nonactionable opinion (Point IV).
That post could be interpreted as accusing La Liberte of engaging in specific
racist conduct, which is a provable assertion of fact and therefore actionable.

BACKGROUND
The facts are plentiful but straightforward. Roslyn La Liberte is a

California citizen who avows that she is “passionate about this country’s
immigration policies.” (App. at 13.) She took a particular interest in California
Senate Bill 54 (“SB 54”), a controversial 2017 law that limits cooperation between

local law enforcement and feder al immigration authoriti es

. One provision is that6 state and local law enforcement officers are barred from disclosing ( inter alia ) an

alien’ s address and date of release from prison. Cal. Gov’t Code § 7284.6(a)(1)

. To register her opposition, La Liberte attended city council meetings in several

cities , speaking out at some of them to ur g e resistance. On June 25th, 2018, La

Liberte attended one such meeting in Simi Valley, California, alon g with
hundreds of other people, where she spoke for about two minutes (the “Council
Meeting”).
At some point during the Council Meeting, La Liberte was photographed

interact ing with a fourteen

- year

- old teenager who appears to be (and is)
Hispanic (the “ Photograph ” ). ( See A pp. at 265.) The Photograph show ed La

Liberte with her mouth open and her hand at her throat in a gagging gesture.

On June 28th, a social media activist named Alan Vargas tweeted the Photograph
along with the following caption:

“ You are going to be the first deported ” [and] “dirty Mexican” [w]ere

some of the things they yell ed they yelled [sic] at this 14 year old boy. He was defending immigrants at a rally and was shouted down. Spread this far and wide this woman needs to be put on blast.
(App. at 67.) The P ho to graph went viral. The next day, Joy Reid, a personality

on the MSNBC cable station , retweeted ( i.e. , shared) the Vargas t weet to her
approximately 1.24 million followers. (La Liberte is not alleging defamation by7 Reid as to that communication.)
Later that same day (June 29 ), Reid posted the Photograph on her
Instagram with the following caption:

He showed up to a rally to defend immigrants

. . . . She showed up too, in her MAGA hat, and screamed, “You are going to be the first deported”

. . . “dirty Mexican!” He is 14 years old. She is an adult

. Make the picture black and white and it could be the 1950s and the desegregation of a school. Hate i s real, y’all. It hasn’t even really gone away.
(the “June 29 Post” ) (App. at 84.) Meanwhile, the teenager in the Photograph
stated during an interview with Fox 11 Los Angeles that La Liberte did not yell
any racial slurs and that their discussion was “ civil

. ” (App. at 38, 47.) Still, La

Liberte began receiving hate mail, including threats of mutilation and

recommendations that she commit suicide.

T wo days later (July 1 ), Reid published another post about La Liberte , this

time on Instagram and Facebook. This post juxtaposed the Photograph of La

Liberte with the 1957 photograph showing one of the Little Rock Nine walking

past a screaming white woman

. Reid a dded the following caption :8 It was inevitable that this [juxtaposition] would be made. It's also easy to look at old black and white photos and think: I can't believe that person screaming at a child, with their face twisted in rage, is real. By [sic] every one of them wer e. Histo ry sometimes repeats. And it is full of rage. Hat tip to @joseiswriting. #regram #history #chooselove
(the “July 1 Post” ) (App. at 87.) La Liberte hired a lawyer , who contacted Reid
on July 2 to demand that she take down the p osts and apologize

. Reid
responded that evening by removing them from h er accounts and issuing the
following statement: “It appears I got this wrong. My apologies to Mrs. La
Liberte and [the teenager ].” (App. at 116.)

La Liberte sued Reid for defamation in t he Eastern District of New York,
claiming that Reid’s June 29 and July 1 p ost s falsely accused her of yelli ng racist

slurs at the teenager in the Photograph. Applying California law by agreement
of the parties , the district court dismissed La Liberte’s claim under Rule 12(b)(6)

and struck it under California’s anti

- SLAPP s tatute. And since that sta tute

mandat es fee shifting , the court “granted [Reid] leave to seek attorneys’ fees and

costs.” ( App. at 279 .)9 DISCUSSION

We review de novo a district court’s gra nt of a motion to dismiss , “constru[ing] the complaint liberally, accepting all factual allegations in the
complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.”

Palin v. New York Times Co. , 940 F.3d 804, 809 (2d Cir. 2019) (quoting Elias v. Rolling Stone LLC , 872 F.3d 97, 104 (2d Cir. 2017)). Likewise, whether

California’s anti

- S LAPP statute can be applied in federal court raises a question

of law, which we review de novo

. Knight v. State Univ. of N .Y. at Stony Brook , 880 F.3d 636, 640 (2d Cir. 2018) ; Adelson v. Harris , 774 F.3d 803, 807, 809 (2d Cir.

2014).

I
We begin with the procedural issue posed by the court’s decision to strike

La Liberte’s defamation claim u nder California’s anti

- SLAPP statute. For a
category of cases related to a defendant’s speech, that statute subjects any claim

to dismissal “ unless the court determines that the plaintiff has established that
there is a probability that the plaintiff will prev ail on the claim.” Cal. Civ. Proc.

Code § 425.16(b)(1). Many states have enacted “anti

- SLAPP statutes” with the10 idea that they provide breathing space for free speech on contentious public

issues. See Abbas v. Foreign Policy Grp., LLC , 783 F.3d 1328, 1332 (D.C. Cir.
2015). The aim is “to decrease the ‘chilling effect’ of certain kinds of libel
litigation and other speech

- restrictive litigation

. . . by making it easier to dismiss
defamation suits at an early stage of the litigation.” Id. (internal quotation marks
omitted) (quoting Eugene Volokh, The First Amendment and Related

Statutes 118 (5th ed. 2014)).
Specifically, Califor nia’s anti

- SLAPP statu te was enacted to provide “an
efficient procedural mechanism for the early and inexpensive dismissal of
nonmeritorious claims ‘arising from any act’ of the defendan t ‘in furtherance of
the person’ s r ight of petition or free speech . . . in connection with a public

issue. ’” Annette F. v. Sharon S. , 119 Cal. App. 4th 1146, 1159 (Cal. Ct. App. 2004)
(quoting Cal. Civ. Proc. Code § 425.16(b)(1)). A defendant is afforded 60 days
from service of the complaint to file a “special motion to strike ,” which must be
granted “unless the court determines that the plaintiff has established that there
is a probability that the plaintiff will prevail on the claim.” Cal. Civ. Proc. Code §

425.16 (b) (1) , (f)

. Additionally, a prevailing defendant on this special motion

“ shall be entitled ” to recover attorney’ s fees and costs

. Id. § 425.16 (c )(1)

.11 California courts resolve these motions in two step s

. “First, the court

decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity [ i.e. ,] . . . acts . . .

taken ‘ i n furtherance of the defendant ’ s right of petition or free speech . . .

. ’ ”
Equilon Enters. v. Consumer Cause, Inc. , 29 Cal. 4th 53, 67 (Cal. 2002) (alteration
omitted) (quoting Cal. Civ. Proc. Code § 425.16(b)(1)). If so , the court

“ determines whether the plaintiff has demonstrated a probability of prevailing

on the claim .” Id. In doing so, “ the court shall consider the pleadings, and
supporting and opposing affidavits stating the facts upon which the liability or

defense is based.” Cal. Civ . Proc. Code § 425.16(b)(2 ).

Our sister circuits split on whether federal courts may entertain the

various state iterations of the anti

- SLAPP special motion. The Fifth, Eleventh ,
and D.C. Circuits h o ld that they are inapplicable in federal court on the ground
that they conflict with Federal Rules of Civil Procedure 12 and 56

. See Klocke v.

Watson , 936 F.3d 240, 242 (5th Cir. 2019) ( Texas ); Carbone v. Cable News

Network, Inc. , 910 F.3d 1345, 1350 (11th Cir. 2018) ( Georgia ) ; Abbas v. Foreign
Policy Grp., LLC , 783 F.3d 1328, 1335 (D.C. Cir. 2015) (D.C. ). 1 T he First and

1 For our purposes, these anti

- SLAPP statutes are analogous to California’s. Each raises the bar for plaintiffs to overcome a pretrial dismissal motion. See Carbone ,12 Ninth Circuit s see no such conflict with the statutes of Maine and California,
respectively

. See Godin v. Schencks , 629 F.3d 79, 86

- 87 (1st Cir. 2010) ; 2 United

States ex rel. Newsham v. Lockheed Missiles & Space Co. , 190 F.3d 963, 972 (9th

Cir. 1999)

. We have decided some cases involving these special motions, but we

have not yet decided th e qu estion of applicability

. 3

910 F.3d at 1348 ( addressing Georgia’s anti

- SLAPP statute, which imposes the identical re quirement: plaintiffs must “ establish[] that there is a probability that the nonmoving party will prevail on the claim”); Abbas , 783 F.3d at 1332 ( addressing D.C.’s anti

- SLAPP statute, which similarly requires plaintiffs to demonstrate that “ the claim is l ikely to succeed on the merits”); see also Klocke , 936 F.3d at 244 (addressing Texas’s anti

- SLAPP statute, which requires the non

movant to “establish[] by clear and specific evidence a prima facie case for each element of the claim in question”).

2 Mai ne’s special motion requires dismissal “ unless the party against whom the special motion is made shows that the moving party’s exercise of its right of petition was devoid of any reasonable factual support or any arguable basis in law and that the moving p arty’s acts caused actual injury to the responding party.” Godin , 629 F.3d at 82.

3 Reid argues that we already held (or implied) that these special motions can be applied in federal court. Not so. She relies on Liberty Synergistics Inc. v. Microflo Ltd. , 718 F.3d 138, 157 (2d Cir. 2013) (“ Liberty I ”), which vacated the denial of a California special motion to strike. But that case turned on choice

- of

law principles under the Rules of Decision Act. Id. at 142, 157. The question on appeal was whether the district court could entertain California’s special motion to strike notwithstanding that it was applying New York substantive law. (The case originated in California state court. It was removed to federal court and then transferred to the Eastern District of New York.) Id. at 143. Liberty I the refore did not consider whether the special motion conflicts with any Federal Rule, and a later decision in that case clarified as much, noting that Liberty I13 The test is whether “ a Federal Rule of Civil Procedure ‘answer[s] the same
question’ as the [special motion to strike] .” Abbas , 783 F.3d at 1333 (alteration in
original) (quoting Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co. , 559

U.S. 393, 398

– 99 (2010) )

. If so, the Federal Rule governs , unless it violate s the

Rules Enabling Act. Id. Applying that test, we first conclude that the special

motion to strike in California’s anti

- SLAPP statute answers the same question as

Federal Rules 12 and 56

.

T he special motion to strike requires outright dismissal unless the plaintiff

can “establish [] a probability that he or she will prevail on the claim.” Cal. Civ.

“expressly declined to reach” the issue of “whether California’s anti

- SLAPP statute is applicable in federal court.” Liberty Synergistics Inc. v. Microflo Ltd. , 637 F. App’x 33, 34 n.1 (2d Cir. 2016) (summary order) (alteration omitted).

Reid also relies on Adelson v. Harris , 774 F.3d 803, 809 (2d Cir. 2014), which approved certain aspects of Nevad a’s anti

- SLAPP statute. That case is inapposite because Nevada’s statute is quite different. As the district court in Adelson recognized, “[ t]he Nevada statute does not establish a ‘reasonable probability of success’ standard that must be met without discovery, like the California Anti

– SLAPP law.” Adelson v. Harris , 973 F. Supp. 2d 467, 493 n.21 (S.D.N.Y. 2013). Instead, “ the Nevada statute immunizes ‘good faith communication[s]’

-- defined as communications that are ‘truthful or . . . made wit hout knowledge of . . . falsity’

-- thereby effectively raising the substantive standard that applies to a defamation claim.” Id. Accordingly, “even if the procedural elements of certain Anti

– SLAPP statutes present [conflicts with the Federal Rules of Proc edure], those problems [were] not presented in [ Adelson ], where the effects of the [Nevada] Anti

– SLAPP law . . . are substantive.” Id. (citation omitted).14 Pro. Code § 425.16(b) (3)

. The statute thus “establishes the circumstances under

which a court must dismiss a plaintiff’ s claim before trial,” a question that is
already answered (differen tly) by Federal Rules 12 and 56. Abbas , 783 F.3d at

1333

- 34. Under Rule 12( b)(6), the pleading burden is to allege “ enough facts to
state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)

. This “does not impose a probability
requirement at the pleading stage. . . . [A] well

- pleaded complaint may proceed
even if it strikes a savvy judge that actual proof of those facts is improbable.” Id.

at 556. California’s anti

- SLAPP statute , however, “abrog ates that entitlement

. . . by requiring the plaintiff to establish that success is not merely plausible but
probable.” Carbone , 910 F.3d at 1353.

It also conflicts with Rule 56, which permits summary judgment only if

“ the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

Rule thus enables plaintiffs to proceed to trial by identifying a ny genuine dispute

of material fact , whereas California’s anti

- SLAPP statute “nullif[ies] that
entitlement by requiring the plaintiff to prove that it is likely, and not merely
possible, that a reasonable jury would find in his favor.” Carbone , 910 F.3d at15 1353. Together, Rules 12 and 56 “express ‘with unmistakable clarity’ that proof
of probability of success on the merits ‘is not required in federal courts’ to avoid
pretrial dismissal.” Id. at 1351 (quoting Hanna v. Plumer , 380 U.S. 460, 470
(1965) ). Therefore, California’s special mot ion requires the plaint iff to make a
showing that the Federal R ules do not require.
Reid urges us to follow the Ninth Circuit, which h o ld s that California’s

anti

- SLAPP statute and the Federal Rules “ can exist side by side

. . . without

conflict.” Newsham , 190 F .3d at 972 ( internal quotation marks omitted). We
disagree

-- as do a number of Ninth Circuit judges. 4

A mici curiae argue that “[a]s compared to Rules 12 and 56, the anti

- SLAPP
motion to strike ‘serves the entirely distinct function of protecting those specific

4 See Makaeff v. Trump Univ., LLC , 736 F.3d 1180, 1188 (9th Cir. 2013) (Watford, J. , joined by Kozinski C h

. J. , Paez J. , and Bea, J. , dissenting from denial of rehearing en banc). Judge Watford explained that Newsham is no longer good law (to the extent it ever was) in light of the Supreme Court’s intervening decision in Shady Grove. See id. at 1189 (“Just as the New York statute in Shady Grove impermissibly barred class actions when Rule 23 would permit them, so too California’s anti

- SLAPP statute bars claims at the pleading stage when Rule 12 would allow them to proceed.”); see also id. (“The anti

- SLAPP statute eviscerates Rule 56 by requiring the plaintiff to prove that she will probably prevail if the case proceeds to trial

-- a showing considerably more stringent than identifying material factual disputes that a jury could reasonably resolve in the plaintiff’s favor.”).16 defendants that have been targeted with litigation on the basis of their protected
speech’ ” and that it “ ‘ supplements rather th an conflic ts with the Federal Rules .’ ”
( Amici Br. at 22 ( first quoting Godin , 629 F.3d at 89; then quoting Makaeff v.
Trump University, LLC , 736 F.3d 1180, 1182 (9th Cir. 2013) (Wardlaw, J. , concurring in the denial of rehearing en banc))

. ) 5 The idea that the more
stringent requirement of the anti

- SLAPP standard is a beneficial “supplement” to
the Federal Rules is a policy argument

-- and fatal , because the more permissive

standards of the Federal Rules likewise reflect policy judgment s as to what is

sufficient. See Shady Grove , 559 U.S. at 401 ( explain ing that because “Rule 23
permits all class actions that meet its requirements, . . . a State cannot limit that
permission by . . . imp os[ing] additional requirements ” )

. Finally, a mici w arn that

refus al to apply the anti

- SLAPP statute will “ encourage forum shopping” and
lead to “an increased burden on federal courts in this Circuit.” ( Amici Br. at 11.)
That may be so ; but our answer to a legal question does not turn on our
workload; and in any event, the incentive to forum

- shop created by a circuit split

can be fixed , though not here

.

5 Amici moved for le ave to file their brief on February 19, 2020. That motion is now granted.17 Since Rules 12 and 56 answer the same question as California’s special

motion to strike , they “ govern in diversity cases in federal court, unless Rules 12

and 56 violate the Rules Enabling Act .” Abbas , 783 F.3d at 1336.
“So far, the Supreme Court has rejected every challenge to the Federal Rules that
it has considered under the Rules Enabling Act.” Id. Neither Reid nor amici

curiae invite us to deviate. Still, we briefly address the question for the sake of
completeness. The test is “ whether a rule really regulates procedure,

-- the
judicial process for enforcing rights and duties recognized by substantive law
and for justly administering remedy and redress for disregard or infraction of

them .” Sibbach v. Wilson & Co. , 312 U.S. 1, 14 ( 1941)

. Like the Eleventh Circuit,
“[w]e have little difficulty concluding” that Rules 12 and 56 “comply with the
Rules Enabling Act,” particularly because they “ ‘ affect[ ] only the process of
enforcing litigants’ rights and not the rights themselves. ’ ” Carbone , 910 F.3d at

1357 ( second alteration in original) (quoting Burlington N. R.R

. Co. v. Woods , 480 U.S. 1, 8, (1987) ). Accordingly , federal court s must apply Rules 12 and 56

instead of California’s special motion to strike

.

* * *18 Finally, Reid and amic i curiae contend that she is entitled to attorneys’ fees

under the anti

- SLAPP statute based on the district court’s separate Rule 12(b)(6)

dismissal. We disagree. “ The Act do es not purport to make attorney ’ s fees
available to parties who obtain dismissal by other means, such as under

Federal Rule 12(b)(6)

. ” Abbas , 783 F.3d at 1337 n.5; see also Klocke , 936 F.3d at

247 n.6. (“Suffice to say that because [Texas’s anti

- SLAPP statute] does not apply
in federal court, the district court erred by awarding fees and sanctions pursuant
to it.”).

California ’s anti

- SLAPP statute likewise awards attorneys’ fees only to “a
prevailing defendant on a special motion to strike .” Ca l. Civ. Pro. Code §

425.16 (c) (1) (emphasis added)

. So Reid cannot recover attorneys’ fees based on

the distric t court’s Rule 12(b)(6) dismissal (which was nevertheless erroneous , a s we explain below in Points III and IV). Nor may she recover them under the

anti

- SLAPP statute if she later prevails by other means. 6

6 The California Legislature presumably could have awarded attorneys’ fees to the prevailing party in any defamation action, but it chose not to do so. See Abbas , 783 F.3d at 1335 (“ Had the D.C. Council simply wanted to permit courts to award attorney’s fees to prevailing defendants in these kinds of defamation cases, it easily could have done so.”).19 II

W e agree with the district court that Reid does not enjoy immunity under
Section 230 of the Communications Decency Act

. See 47 U.S.C. § 230(c)(1) ( “ 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.”). This immunity has three elements: “ (1 ) [ the defendant ] is a
provider or user of an interactive computer service, (2) the claim is based on
information provided by another information content provider and (3) the claim
would treat [the defendant] as the publisher or speaker of that information. ”

FTC v. LeadClick Media, LLC , 838 F.3d 158, 173 (2d Cir. 2016) (alteration in
original) (internal quotation marks omitted) (quoting Jane Doe No. 1 v. Backpage.com, LLC , 817 F.3d 12, 19 (1st Cir. 2016)). An “ i nformation content
provider” i s “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).

The second element is dispositive here

. La Liberte’s claim is based on
posts of which Reid is the author , not on “information provided by another

content provider.” Vargas had tweet ed about vile remarks that “ they yelled” at20 the meeting

. ( App. at 67 (emphasis added). ) Vargas did not attrib ute the

remarks to La Liberte. The following day, Reid authored and published her own
Instagram post (the June 29 Post), which attributed to La Liberte (albeit not by
name) what Vargas attributed only generally to the unnamed “ the y.” ( See A pp.

at 84 (“ She . . . screamed, ‘You are going to be the first deported ’

. . . ‘ dirty

Mexican!’” (emphasis added) ).) The post also included Reid’s commentary on

the conduct alleged: “Make the picture black and white and it could be the 1950s

an d the desegregat ion of a school. H ate is real, y’all. It hasn’ t even really gone
away.” (App. at 84 .)

As sole author of the June 29 P ost , Reid alone was “ responsible . . . for [ its ]
creation or development, ” which makes her the sole “information content
provider.” 47 U.S.C. § 230(f)(3). Moreover , she went way beyond her earlier

retweet of Vargas in ways that intensified and specified the vile conduct that she

was attribut ing to La Liberte. S he accordingly stands liable for any defamatory

content. And she is similarly the sole “information co ntent provider” for her July

1 Post, a point she does not contest. 7

7 By only addressing the June 29 Post, Reid concedes that her July 1 Post do es not qualify for Section 230 immunity.21 Reid argues that “[ t]he issue . . . is not whether a defendant posted or
authored a publication,

. . . but rather whether the publication is materially
different from a prior internet publication.” (Appellee’s Br. at 42.) Thus Reid
seeks Section 230 immunity on the ground that the June 29 Post “merely repeated
what countless others had previously published before her, including Vargas
and at least eight other individuals who specifically stated that La Liberte made
racial slurs at the Council Meeting.” (Appellee’s Br. at 47.)
The contention is unsupported by f act or law. The June 29 Post did not

“me rely r epeat[]” what Vargas had “previously published.” Among other

salient differences, Reid ’s p ost accused La Liberte of yelling racist insults at the

teenager

. Nor did Reid simp ly retweet or share a post that someone else

authored

. 8 In effect, Reid is arguing that a plaintiff can sue only the first

defamer

. If that were so, a post by a n obscure social media user with few

followers , blogging in the recesses of the internet , would allow everyone else to
pile o n without consequence. No one’ s reputation would be worth a thing.

8 La Liberte’s initial complaint included Reid’s retweet of the Vargas tweet; but since La Liberte later dropped that claim, we need not decide whether a retweet qualifies for Section 230 immunity. Nor are we cal led to decide whether Section 230 protects a social media user who copies verbatim (and without attribution) another user’s post, a question that may be complicated by issues as to malice and status as a public figure.22 Reid relies m ore persuasively on the “material co ntribution” test that we
recognized in LeadC lick

. See Force v. Facebook, Inc. , 934 F.3d 53, 68 (2d Cir.

2019) ( “[W]e have recognized that a defendant will not be considered to have
developed third

- party content unless the defendant directly and ‘materially’
contributed to what made the content itself ‘unlawful.’” (quoting LeadClick , 838

F.3d at 174 )). W e apply this test to “ draw[ ] the line at the crucial distinction
between, on the one hand, taking act ions . . . to . . . display . . . actionable content
and, on the other hand, responsibility for what makes the displayed content
[itself] illegal or actionable. ” Id. (alterations in original) (internal quotation
marks omitted) (quoting Kimzey v. Yelp! Inc. , 836 F.3d 1263, 1269 n.4 (9th Cir.
2016) ).

That test does not serve Reid because she did not pass along or edit “third

party content”; she authored both Posts at issue

. To illustrate: in Force , victims

of Hamas

- organized terrorist attacks in Israel sought to hold Facebook
responsible on the ground that “Hamas . . . used Facebook to post content that
encouraged terrorist attacks in Israel.” 934 F.3d at 59

. Facebook was immune

under Section 230, as we held, because Facebook did not “ ‘develop’ the content

of the

. . . postings by Hamas” ; nor does Facebook “ edit (or suggest edits) for the23 content that its users . . . publish.” Id. at 69

- 70 . On the other hand, in LeadClick , the defendant “had ‘developed’ third parties’ content by giving specific
instructions to those parties on how to edit ‘fake news’ that they were using in

their ads.” Id. at 69 (summarizing LeadClick , 838 F.3d at 176 )

. Since Reid cannot claim immunity, w e t urn to the substance of the

defamation claim.

II I

T he district court rul ed that La Liberte was a limited purpose public figure

on the California sanctuary

- state controversy , and dismissed her claim as to the

June 29 Post for failure to plead actual malice

. See Ampex Corp. v. Cargle , 1 28

Cal. App. 4th 1569, 1577 (Cal. Ct. App. 2005) (noting the actual malice
requirement for limited purpose public figures)

.
The re are two kinds of public figures

. “The all

- purpose public figure . . .
has achieved such pervasive fame or notoriety that he or she becomes a public
figure for all purposes . . . . The limited purpose public figure . . . voluntarily
injects him or herself or is drawn into a specific publi c controversy, thereby
becoming a public figure on a limited range of issues.” Ampex Corp. , 128 Cal.24 App. 4th at 1577

. No one argues that La Liberte is an all

- purpose public figure ; the question is whether she became a limited purpose public figure with respect

to California ’s sanctuary

- state law (SB 54) , that is , did she “thrust [he rself] to the

forefront ” of the controvers y, “ invit e attention and comment [ ,] . . . [and] assum e
special prominence in [its] resolution.” Khawar v. Globe Int'l, Inc. , 19 Cal. 4th

254, 263 (Cal. 1998) (internal quotation marks omitted) (quoting Gertz v. Robert

Welch, Inc. , 418 U.S. 323, 345, 351 (1974) ). The district court answered
affirmatively because La Liberte “attend ed and sp oke about SB 54 at multiple
city council meetings” and “ appear ed in a photograph in the Washington P ost
about the SB 54 controversy ” one month before the Simi Valley Council Meeting

. (App. at 273.)

That is not nearly enough

. Th in as the findings are to begin with, th e

district court did not take into account the requireme nt that a limited purpose
public figure maintain “regular and c ontinuing access to the media.”

Hutchinson v. Proxmire , 443 U.S. 111, 136 (1979)

. One reason for imposing the

actual malice burden on public figures and limited purpose public figures is that
“[t]hey have media access enabling them to effectively defend their reputations
in the public arena.” Khawar , 19 Cal. 4th at 265 (citing Gertz , 418 U.S. at 344

- 45 ).25 W e have therefore made “regular and continuing access to the media” a n

element in our four

- part test for determining whether someone is a limited

purpose public figure

. Contemporary Mission, Inc. v. New York Times Co. , 842
F.2d 612, 617 (2d Cir. 1988)

. The California cases cited by the district court
similarly turn on media access

. 9
La Liberte plainly lacked such media access. The earlier photograph , which showed her conversing, was in a Washington Post photo spread of

attendees at an SB 54 protest . The article did not name La Liberte , let alone

mention her views. The single caption described everyone depicted as
“[s]upporters and opponents of [SB 54] rally[ing] and debat[ing] outside Los
Alamitos City Hall.” (App. at 140

- 41.) Such incidental and anonymous

treatment hardly bespeak s “ regular and continuing access to the media. ”

9 In Nadel v. Regents of the Univers ity of California , 28 Cal. App. 4th 1251 (Cal. Ct. App. 1994), one plaintiff was deemed to be a limited purpose public figure because he had “spoke[n] to print media reporters who included his comments in articles about the [controversy]” and had “been on 6 radio stations,” underscoring his “‘ more realistic opportunity to counteract false statements than private individuals normally enjoy.’” Nadel , 28 Cal. App. 4th at 1269

- 70 (quoting Gertz , 418 U.S. at 344); see also Rudnick v. McMillan , 25 Cal. App. 4th 1183, 1190 (Cal. Ct. App. 1994) (reasoning that a cattle rancher became a limited purpose public figure by successfully prompting two newspapers to write articles about his dispute with California’s Bureau of Land Management).26 Nor does La Li berte’s participation at city council meetings

. La Liberte is

said to have “ testif[ie d ] eight times around the state” (Appellee’s B r. at 26 (citing
App. at 102

- 05 ) ) ; but Reid does not identify instance s in which the media sing l ed

out La Liberte’s participation as new s worthy

. Nor does speech , even a lot of it,

m ake a citizen (or non

- citizen) fair game for attack. Imposition of the actual
malice requirement on people who speak out at government meetings would
chill public participation in politic s and community dialogue

. True, La Liberte received media attention

. Reid emphasizes that La

Liberte appeared for a television interview after Vargas published his tweet but

before Reid’s p osts were published. However, m edia a ccess that be comes

available only “ after and in response to ” damaging publicity does not make
someone a public figure. Khawar , 19 Cal. 4th at 266

. By the time of the

interview, the Photograph had gone viral, along with accusations that La Liberte

had screamed vile racist remarks at a child. Th e interview was “only the media
access that would likely be available to any private individual who found
himself the subject of sensatio nal and defamatory accusations

. ” Id. “ If such

access were sufficient . . . , any member of the media . . . could confer public27 figure status simply by publishing sensational defamatory accusations against
any private individual.” Id

.
It makes little sense to deem La Liberte a limited purpose public figure

when she stepped forward solely to defend her reputation

. P eople become

limited purpose public figures only when they “ voluntarily invite [ ] comment and

criticism ” by “ injecting themselves into public controversies.” Id. at 265
(emphasis added) (citing Gertz , 418 U.S. at 344

- 45)

. La Liberte, however, did not

use the interview to inject herself to the forefront of the sanctuary

- state

controversy ; s he was pulled into a spotlight. Her experience suggests why the
Supreme Court has only hypothetically recognized the notion of an involuntary
public figure

. 10

10 The Court acknowledged the possibility of becoming an involuntary public figure but cautioned that “ the instances of truly involuntary public figures must be exceedingly rare.” Gertz , 418 U.S. at 345. As the Supreme Court of California elaborated, “assuming a person may ever b e accurately characterized as an involuntary public figure, we infer . . . that the [Supreme Court] would reserve this characterization for an individual who, despite never having voluntarily engaged the public’s attention in an attempt to influence the outcome of a public controversy , nonetheless has acquired such public prominence in relation to the controversy as to permit media access sufficient to effectively counter media

published defam atory statements.” Khawar , 19 Cal. 4th at 265 (last emphasis added). La Liberte is clearly not that exception. In any event, since Gertz , the Supreme Court has “emphasized the voluntary nature of the public

- figure status.” Sack on Defamation: Libel, Sl ander, and Related Problems at 5

- 68 (5th ed. 2017).28 Since La Liberte was not a limited purpose public figure, t he district court
erred by requiring her to allege actual malice , and her claim as to the June 29 Post
should not have been dismissed for failing to do so. On remand, the district

court m ay assess whether La Liberte adequately alleged that Reid acted
negligently with respect to that post , the standard for private

- figure plaintiffs.

See Khawar , 19 Cal. 4th at 274 ; Brown v. Kelly Broadcasting Co. , 48 Cal. 3d 711,

742 (Cal. 1989) (“[A] private person need prove only negligence (rather than
malice) to recover for defamation.”).

IV

Th e district court dismissed La Liberte’ s claim as to the July 1 Post on the
ground that it “express[ed] nonactionable statements of opinion.” (App. at 275.)
We disagree. A reader could have understood t he July 1 P ost as equat ing La

Liberte ’ s conduct with archetypal racist conduct, which is a provable assertion of

fact , and therefore actionable

.
Whether a statement is nonactionable opinion “is a question of law to be

decided by the court.” Baker v. L.A. Herald Examiner , 42 Cal. 3d 254, 260 (Cal.
1986). The test is “whether a reasonable fact finder could conclude the published29 statement declares or implies a provably false assertion of fact.” Frankli n v.
Dynamic Details, Inc. , 116 Cal. App. 4th 375, 385 (Cal. Ct. App. 2004) (citing

Milkovich v. Lorain Journal Co. , 497 U.S. 1, 19 (1990)); see also Overhill Farms,
Inc. v. Lopez , 190 Cal. App. 4th 1248, 1260 (Cal. Ct. App. 2010) ( “Statements of
opinion which imply a false assertion of fact are actionable.”).
Relatedly , “ accusation[s] of concrete, wrongful conduct” are actionable

while “general statements charging a person with being racist, unfair, or unjust”

are not. Overhill Farms , 190 Cal. App. 4th at 1262. Overhill Farms is instructive :

a press release and leaflets discussing a company’s termination of immigrant

workers were actionable because they did not “ merely accus e [the company ] of
being ‘racist’ in some abstract sense. ” Id. Rather , the press release “ contain[ed]

lan guage which expressly accuse[d] [the company ] of engaging in racist firings , ”

and the leaflets “refer[ r ed] to [the company’s] conduct as ‘racist and
discriminatory abuse against Latina women immigrants .’” Id.

A reader could interpret the juxtapos ition of the Photograph with the 1957

Little Rock image to mean that La Liberte likewise screamed at a child out of

racial animus

-- particularly in light of Reid’s comment that “[h]istory sometimes

repeats. ” (App. at 87.) That interpretation is bolstered by Reid’s description of30 the white woman in the Little Rock p hotograph a s a “person screaming at a

child , with [her] face twisted in rage” and Reid’s comment that it was

“inevitable” t hat the photos would be juxtaposed. Reid thus portrayed La

Liberte as a latter

- day counterpart of the white woman in 1957 who verbally

assaulted a minority child. Like the defendants in Overhill F arms , Reid “did not
merely accuse [La Liberte] of being ‘racist’ in some abstract sense .” 190 Cal. App.

4th at 1262. Rather, her July 1 Post could be understood as an “ accusation of
concrete, wrongful conduct,” which can be proved to be either true or false. Id.

That makes it potentially defamatory.

Reid argues that readers could not understand the July 1 Post as
defamatory absent familiarity with Reid’s June 29 Post or the Little Rock image ,
and that La Liberte was therefore required to plead defamation by implication
and special damages. We disagree.

To be sure, California defamation law (which governs) recognizes two
categories of libel , one of which requires proof of special damages. A publication

is libelous “ per se ” when “ a reader would perceive a defamatory meaning
without extrinsic aid beyond his or her own intelligence and common sense.”

Bartholomew v. YouTube, LLC , 17 Cal. App. 5th 1217, 1226 (Cal. Ct. App. 2017)31 (quoting Barnes

- Hind, Inc. v. Superior Court , 181 Cal. App. 3d 377, 386

- 87 (Cal.
Ct. App. 1986))

. A publication is libelous “ per quod ” if a “reader would be able to
recognize a defamatory meaning only by virtue of his or her knowledge of
specific facts and circumstances, extrinsic to the publication, which are not
matters of common knowledge rationally attributable to all reasonable persons.”

Id. at 1226

- 27 (quoting Barnes

- Hind, Inc. , 181 Cal. App. 3d at 386

- 87). And

u nlike libel per se, libel per quod “is not actionable unless the plaintiff alleges and
proves that he has suffered special damage as a proximate result thereof.” 11 Cal.
Civ. Code § 45a.
Reid’s argument confuses libel per quod , which imposes the special
damages requirement, with libel by implica tion, which can be libel per se

nevertheless

. “ A statement can also be libelous per se if it contains a charge by
implication from the language employed by the speaker and a listener could
understand the defamatory meaning without the necessity of knowing extrinsic

11 “‘Special damages’ means all damages that plaintiff alleges and proves that he or she has suffered in respect to his or her property, business, trade, profession , or occupation, including the amounts of money the plaintiff alleges and proves he or she has expended as a result of the alleged libel, and no other.” Cal. Civ. Code § 48a(d)(2).32 explanatory matter.” McGarry v. Univ. of San Diego , 154 Cal. App. 4th 97, 112
(Cal. Ct. App. 2007).

Readers who were unfamiliar with the June 29 Post could still interpret the
July 1 Post to mean that Liberte engaged in racist conduct. T he Little Rock

encounter is a “ matter[] of common knowledge rationally attributable to all
reasonable persons.” Bartholomew , 17 Cal. App. 5th at 1226

- 27. Far from an

obscure episo de , i t is a landmark event in one of the most vital historic
developments of twentieth

- century America , and the 1957 photograph is an
indelible image of it . Presumably, that is why and how Reid used it.

Moreover , even those w ith an impoverished frame of reference could
interpret the post as accusing La Liberte of engaging in racist conduct. There

was no need for “extrinsic aid beyond [a reader’s] own intelligence and common

sense.” Id. at 1226. The 1957 p hotograph shows a white wo man “screaming at a

[ Black ] child , with [her] face twisted in rage.” (App. at 87.) W hen viewing that
image next to La Liberte ’s Photograph and reading Reid’s comment that
“[h ]istory sometimes repeats, ” a reader could believe that La Liberte had
likewise engaged in racist conduct. And Reid “ is liable for what is insinuated, as
well as for what is stated explicitly.” Bartholomew , 17 Cal. App. 5th at 1227

.33 Because that accusation is capable of being proven or disproven, t he district

court erre d by characterizing the July 1 Post as nonactionable opinion.

* * *
Since the district court concluded that La Liberte adequately alleged malice
with respect to the July 1 Post, 12 it follows that La Liberte adequately alleged
negligence, the standard for private

- figure plaintiffs. Her claim as to this p ost
should proceed to discovery

.

CONCLUSION
For the reasons stated above, the district court’s judgment is VACATED

and REMANDED for further proceedings consistent with this opinion.

12 The court reasoned that “it is plausible that [Reid] learned about the falsity of the content of the July 1 Post before publication,” including by way of emails from La Liberte’s son. (App. at 275.)