# United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Ar gued February 25, 2014 Decided June 13, 2014

No. 13

- 7017

L ARRY E LLIOTT K LAYMAN
, A PPELLANT

v.

M ARK Z UCKERBERG AND F ACEBOOK
, I NC
.,

A PPELLEES

Appeal from the United States District Court
for the District of Columbia (No. 1:11

- cv

- 00874)

Larry Klayman argued the cause and filed the brief for appellant.

Craig S. Primis argued the causes for appellees. With
him on the brief was K. Winn Allen

.

Before: T ATEL
, B ROWN and M ILLETT
, Circuit Judges

.

Opinion for the Court filed by Circuit Judge M ILLETT

.

M ILLETT
, Circuit Judge : Three years ago, p laintiff

a ppellant Larry Klayman encountered a page on Facebook’s social networking website en titled “Third Palestinian2

Intifada,” which called for Muslims to rise up and kill the Jewish people. Facebook subsequently removed the Third Intifada page from its website , but not promptly enough for Klayman . He filed suit against Facebook and its founder, Mark Zuckerberg, alleg ing that their delay in removing th at

page and similar pages constituted intentional assault and negligence. The district court held that the Communi cations Decency Act of 1996

, 47 U.S.C. § 230

, shielded Zuckerberg
and Facebook from suit . We affirm.

I

In enacting the Communications Decency Act, Congress
found that the Internet and related computer services “represent an extraordinary advance in the availability of
educational and information al resources , ” and “offer a forum for a true diversity of polit ical discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” 47 U.S.C. § 230(a). The Internet has done so, Congress stressed, “with a minimum of government regulation.” Id

. Congress accordingly made it t he “policy of the United States” to “promote the continued development of the Internet,” and “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)

.

To that end, Section 230(c) of the Act commands 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 provide r.” 47 U.S.C. § 230(c) (1) . A later section of the Act adds preemptive bite to that prohibition, providing that “[n]o cause of action may be brought and no liability may be imposed under any State or3

local law that is inconsistent w ith this section.” Id. § 230(e)(3).

As relevant here, t he Act defines a protected “ interactive computer service ” a s “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 syst em that provides access to the
I nternet [.] ” 47 U.S.C. § 230(f)(2). An information content provider , in turn, is defined as “any person or entity that is responsible, in whole or in part, for the creation or development of in formation provided through the Internet or any other interactive computer service.” Id. § 230(f)(3).

Facebook is an Internet

- based social networking website that allows its users worldwide to share information, opinions,
and other content of the users ’ o wn choosing for free. Klayman v. Zuckerberg , 910 F. Supp. 2d 314, 316 (D.D.C. 2012). Like millions of others, Larry Klayman maintains a
Facebook account. When he join ed Facebook, the Statement of Rights and Responsibilities for users advised Klayman tha t Facebook does its “best to keep Facebook safe, but we cannot guarantee it,” J

. A

. 23, and that “ YOU USE IT AT YOUR
OWN RISK. WE ARE PROVI DI NG FACEBOOK ‘AS IS’
WITHOUT ANY EXPRESS OR IMPLIED
WARRANTIES

, ” J

. A

. 26 (capitalization in original) . The
Statemen t continued: “FACEBOOK IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES [

. ] ” J

. A

. 27 (capitalization in original)

.

W hile using the site a few years ago

, Klayman came

across a page entitled “Third Palestinian Intifada,” which called for an uprising to take place after the completion of4

Islamic prayers on May 15, 2011, and proclaimed that “Judgment Day will be brought upon us only once Muslims
have killed all the Jews.” More than 360 ,000 Facebook users were members of the group; three similar pages calling for a Third Intifada attracted over 7,000 members. Compl. ¶ 7.

At some point, Israel’s Minister for Public Diplomacy

wrote a letter to Facebook and Mark Zuckerberg to request
that the Intifada page s be removed

. Klayman alleges that he also requested removal of the page s , but does not indicate
when. After “many days

, ” Facebook removed the page s

. Compl. ¶ 12

.

Klayman subsequently sued Facebook and M ark Zuckerberg (collectively, “Facebook”), in the Superior Court
for the District of Columbia , alleging that the ir insufficiently prompt removal of the Third Intifada page s constituted
intentional assault and negligen t breach of a duty of care that
Facebook allegedly ow ed to Klayman

. Specifically, Klayman alleged that the Intifada page s “amount[ed] to a threat of the use of force against non

- Muslims, and particularly Jews,”

caus ing him “reasonable apprehension of s evere bodily harm
and/ or death. ” Compl. ¶¶ 15

- 16. With respect to negligence, Mr. Klayman alleged that

, “ [a]s a subscriber to Facebook and as a member of the public, Defendants owed Plaintiff a duty of care, which they violated and breached by allowing and furthering the death threats by the Third Palesti nian Intifada, and related and similar sites.” Id. ¶ 19.

Klayman sought an injunction to prevent Facebook from allowing the Intifada page and other similar pages on its website, as well as more than one billion dollars in compensatory and punitive dam ages. Compl., Prayer for
Relief

.5

Facebook removed the case to the United States District Court for the District of Columbia, and then moved to dismiss the case or, in the alternative, to have it transfer red to the
Northern District of California. The d istrict c ourt granted the
motion to dismiss

, F ED

. R

. C IV

. P

. 12(b)(6) , holding that the Communications Decency Act foreclosed tort liability predicated on Facebook’s decisions to allow or to remove content from its website.

II

The court below had diversity jurisdiction under 28 U.S.C. § 1332; this court has jurisdiction over the district court’s final judgment of dismissal under 28 U.S.C. § 1291.
We review de novo a motion to dismiss for failure to state a
claim , accepting as true the factual alle gations stated in the complaint and drawing all inferences in favor of the nonmoving party. See, e.g.

, Autor v. Pri t z ker , 740 F.3d 176, 179 (D.C. Cir. 2014).

Preemption under the Communications Decency Act i s an affirmative defense, but it can still support a motion to
dismiss if the statute’s bar rier to suit is evident from the face of the complaint

. See Jones v. Bock , 549 U.S. 199, 215 (2007); Jones v. Horne , 634 F.3d 588, 600 (D.C. Cir. 2011). Normally we afford a liberal reading to a complaint filed by a

pro se plaintiff. See

, e.g. , Erickson v. Pardus , 551 U.S. 89, 94 (2007); Rhodes v. United States , 518 F. Supp. 2d 285, 287 (D. D. C. 2007). This Court has not yet decided , however, whether that rule applies when the pro se plaintiff is a practicing lawyer like Klayman. See, e.g.

, Richards v. Duke
Univ. , 480 F. Supp. 2d. 222, 234 (D.D.C. 2007). We need not resolve that question here because, even under a generous6

reading of the complaint, the Communication s Decency Act
forb ids this suit

.

I II

The Communications Decency Act mandates dismissal if (i) Facebook is a “provider or user of an interactive computer
service ,” (ii) the information for which Klayman seeks to hold Facebook liable was “information provided by another
information content provider ,” and (iii) the complaint seek s to hold Facebook liable as the “ publisher or speaker ” of that
information

. See 47 U.S.C. § 230(c) (1) . We hold that , on the
face of th is complaint, all three prongs of that test are
satisfied

.

First

, Facebook qualifies as an interactive computer
service because it is a service that provides information to “multiple users” by giving them “computer access * * * to a computer server ,” 47 U.S.C. § 230(f)(2 ), namely the server s that host its social networking website. When Facebook users like Klayman browse the site and review the pages of other

users , see Compl. ¶ 7, they do so by gaining access to
information stored on Facebook’s server s

.

Mark Zuckerberg, too, qualifies for protection because he
is a “provider” of Facebook’s interactive computer service , 47 U.S.C. § 230(c)(1), and Klayman’s complaint seeks to hold
him accountable for his role in making that service available

, Compl. ¶ 12.

Klayman does not seriously dispute that Facebook meet s the statutory definition of an interactive computer serv ice , or that Zuckerberg, as a matter of statutory text, provides such a
service . He argues, instead, that Facebook should not qualify7

because it “ can control the contents posted on [ its ] website. ” Appellant’s Br. 21. The short answer is that Congress did not
write that additional limitation into the Act, and it is this

c ourt’s obligation to enforce statutes as Congress wrote them

. See B arnhart v. Sigmon Coal Co. , 534 U.S. 438, 461

- 462 (2002) (“ [C] ourts must presume that a legislature says in a statute what it means and means in a statute what it says
there

. ”).

Worse still, Klayman’s reading would put Section 230 at
war with itself. Se ction 230(c)(2) prohibits holding providers
of interactive computer services liable for “any action voluntarily taken * * * to restrict access to” content that is “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionabl e.” 47 U.S.C. § 230(c)(2)(A). It would make nonsense of the statute to say that interactive computer service s must lack the capacity to poli ce content when the Act expressly provides them with immunity for doing just that.

Second

, the c omplaint acknowledges that the objected

- to information on the Third Intifada page s was provided by third party users, not Facebook itself . The c omplaint charges the defendants only with “allowing” the page s to exist and “furthering” them by not “remov[ing] these p ostings.” Compl. ¶ 19; see also , e.g. , id. ¶ 4 (Facebook has been “used [ as ] a vehicle for bad purposes” in this case); id. ¶ 7 (Facebook “refused” to “take down the page and similar and related pages”)

.

Indeed, the complaint nowhere alleges or even su ggests that Facebook provided , created, or developed any portion of
the content that Klayman alleges harmed him

. Instead,
l iability in this complaint rests on “ information provided by8

another information content provider ,” within the meaning of
Section 23 0(c)(1). This case thus presents no occasion to
address the outer bounds of preemption under the Act ; it is enough here to hold that a website does not create or develop content when it merely provides a neutral means by which third part ies can post information of their own independent choosing online. Compare, e.g.

, Fair Hous ing Council of San Fernando Valley v. Roommates.com, LLC , 521 F.3d 1157

, 1166 (9th Cir. 2008) (en banc) (housing website that required users to disclose their sex, family s tatus, and sexual
orientation

, as well as those of their desired roommate, in violation of federal housing law, not entitled to
C ommunications D ecency A ct protection )

, with Nemet Chevrolet

, Ltd. v. Consumeraff

a irs.com, Inc. , 591 F.3d 250

, 257 (4th Cir. 200 9) (website that did not “contribute[] to the allegedly fraudulent nature of the comments at issue” protected by the C ommunications D ecency A ct ).

Klayman alleges that Facebook collects data on its users and their activities, which it employs to ma ke its advertising more profitable. Appellant’s Br. 26. Even if true, that would
be irrelevant to Klayman’s theories of liability

. Facebook could only collect such data about the Intifada page s after some third party had created the page s and their content

.

Third

, Klayman’s complaint seeks , for liabili t y purposes, to treat the defendants as “ publisher [ s ]” o f the offending

content

. 47 U.S.C. § 230(c)(1) . Although the statute does n o t define “publisher,” its ordinary meaning is “one that makes publ ic ,” and “ the reproducer of a work intended for public consumption.” W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY 1837 (1981) ; cf. also R ESTATEMENT (S ECOND )

OF T ORTS § 577 (1977) (“ P ublication of defamatory matter” means both the communication of, and the failure to remove,9

the relevant content

. ). Indeed, the very essence of publishing is making the decision whether to print or retract a given piece of content

— the very actions for which Klayman seeks
to hold Facebook liable. See Compl. ¶ ¶ 17

- 20

. Specifi cally, the assault count of the complaint turns on Facebook’s allowing the Third Intifada page s to exist on its website in the first place. Compl. ¶ 17 . And the negligence claim relies on the timing of Facebook’s removal of the page s . Compl. ¶ 19.

Other circuits agree, holding that similar conduct falls
under Section 230’s aegis. See, e.g.

, Zeran v. America Online, Inc.

, 129 F.3d 327, 330 (4th Cir. 1997) (the
C ommunications D ecency A ct protects against liability for the “exercise of a publisher’s traditional editorial functions

— such as deciding whether to publish, withdraw, postpone, or alter content”) ; Green v. America On line , 318 F.3d 465, 471 (3d Cir. 2003) (same) ; Universal Communications Systems, Inc. v. Lycos , Inc. , 478 F.3d 413, 422 (1st Cir. 2007) (same) ; Doe v. MySpace, Inc. , 528 F.3d 413, 420 (5th Cir. 2008) ( no liability under the Act for “decisions relating to the monitoring, screening, and deletion of content” by an interactive computer service provider ) (quoting Green , 318 F.3d at 471) ; Ro o mmates.com , 521 F.3d at 1170

- 11 71 (“ [A] ny activity that can be boiled down to deciding whethe r to exclude material that third parties seek to post online is perforce immune under section 230

. ”) *

* Because the conduct for which Klayman seeks to hold Facebook
liable falls within the heartland meaning of “publisher,” this case presents no occasion to define when other types of publishing activities might shade into creating or developing content.10

Klayman objects that his claims “do not derive from Appellee s ’ status or conduct as a publisher or sp eaker but are based on Appellee s ’ breach of its dut ies arising from the special relationship between the parties as a result of their contractual relationship and contractual obligations.” Appellant’s Br. 23. In particular, he points to a section of Facebook’s Statement of Rights and Responsibilities, wh ich

says: “We do our best to keep Facebook safe * * * .” Id. at 24.

That argument does not work . To begin with, Klayman
omits the end of that sentence, which reads “but we cannot guarantee it.” J

. A

. 23. Klayman also overlooks the Statement’s express warning that “FACEBOOK IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION, OR DATA OF THIRD PARTIES.” J.A.
27. The plain text of the Statement thus disavows the legal relationship that Klayman asserts

.

Moreover, to the extent that Klayman means by this argument to state a contractual basis for liability, no breach of contract claim appears anywhere in the complaint and is accordingly forfeit ed , as Klayman acknowledges . Appellant’s
Br. 23. And t o the extent that Klayman means , instead, that any such statement allocating rights and responsibilities between interactive computer service s and their user s by itself gives rise to a heightened state

- law duty of care in publishing, that argument fails . State law cannot predicate liability for publishing decisions on the mere existence of the very relationship that Congress immunized from suit. In other words, simply invoking the label “special relationship” cannot transform an admittedly waived contract claim into a non

preempted tort action.11

IV

For those reasons, we affirm the district court’s judgment
of dismissal

.

So ordered.