United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 25, 2014 Decided June 13, 2014

No. 13-7017

LARRY ELLIOTT KLAYMAN,

APPELLANT

v.

MARK ZUCKERBERG AND FACEBOOK, INC.,

APPELLEES

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: TATEL, BROWN and MILLETT, Circuit Judges.

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge: Three years ago, plaintiffappellant Larry Klayman encountered a page on Facebook’s 

social networking website entitled “Third Palestinian 
2

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, alleging that their delay in removing that

page and similar pages constituted intentional assault and 

negligence. The district court held that the Communications 

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 informational resources,” and “offer a forum 

for a true diversity of political 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 the “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 provider.” 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 or 
3

local law that is inconsistent with this section.” Id.

§ 230(e)(3). 

As relevant here, the Act defines a protected “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[.]” 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 information 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’ own 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 joined Facebook, the Statement 

of Rights and Responsibilities for users advised Klayman that 

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 PROVIDING FACEBOOK ‘AS IS’ 

WITHOUT ANY EXPRESS OR IMPLIED 

WARRANTIES,” J.A. 26 (capitalization in original). The 

Statement continued: “FACEBOOK IS NOT 

RESPONSIBLE FOR THE ACTIONS, CONTENT, 

INFORMATION, OR DATA OF THIRD PARTIES[.]” J.A.

27 (capitalization in original). 

While 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 of 
4

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 pages be removed. Klayman alleges that he 

also requested removal of the pages, but does not indicate 

when. After “many days,” Facebook removed the pages. 

Compl. ¶ 12.

Klayman subsequently sued Facebook and Mark

Zuckerberg (collectively, “Facebook”), in the Superior Court

for the District of Columbia, alleging that their insufficiently 

prompt removal of the Third Intifada pages constituted 

intentional assault and negligent breach of a duty of care that 

Facebook allegedly owed to Klayman. Specifically, Klayman 

alleged that the Intifada pages “amount[ed] to a threat of the 

use of force against non-Muslims, and particularly Jews,” 

causing him “reasonable apprehension of severe 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 Palestinian 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 damages. 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 transferred to the 

Northern District of California. The district court granted the 

motion to dismiss, FED. R. CIV. 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 allegations stated in the 

complaint and drawing all inferences in favor of the 

nonmoving party. See, e.g., Autor v. Pritzker, 740 F.3d 176, 

179 (D.C. Cir. 2014). 

 

Preemption under the Communications Decency Act is 

an affirmative defense, but it can still support a motion to 

dismiss if the statute’s barrier 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 generous 
6

reading of the complaint, the Communications Decency Act

forbids this suit. 

III

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 seeks 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 this 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 servers

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 servers. 

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 meets

the statutory definition of an interactive computer service, or 

that Zuckerberg, as a matter of statutory text, provides such a 

service. He argues, instead, that Facebook should not qualify 
7

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 

court’s obligation to enforce statutes as Congress wrote them. 

See Barnhart 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. Section 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 objectionable.” 47 U.S.C. 

§ 230(c)(2)(A). It would make nonsense of the statute to say 

that interactive computer services must lack the capacity to 

police content when the Act expressly provides them with 

immunity for doing just that. 

Second, the complaint acknowledges that the objected-to 

information on the Third Intifada pages was provided by third 

party users, not Facebook itself. The complaint charges the 

defendants only with “allowing” the pages to exist and 

“furthering” them by not “remov[ing] these postings.” 

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 suggests 

that Facebook provided, created, or developed any portion of 

the content that Klayman alleges harmed him. Instead, 

liability in this complaint rests on “information provided by 
8

another information content provider,” within the meaning of 

Section 230(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 parties can post information of their own independent 

choosing online. Compare, e.g., Fair Housing 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 status, and sexual 

orientation, as well as those of their desired roommate, in 

violation of federal housing law, not entitled to 

Communications Decency Act protection), with Nemet 

Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 

257 (4th Cir. 2009) (website that did not “contribute[] to the 

allegedly fraudulent nature of the comments at issue” 

protected by the Communications Decency Act). 

Klayman alleges that Facebook collects data on its users 

and their activities, which it employs to make 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 pages after 

some third party had created the pages and their content. 

Third, Klayman’s complaint seeks, for liability purposes,

to treat the defendants as “publisher[s]” of the offending 

content. 47 U.S.C. § 230(c)(1). Although the statute does not 

define “publisher,” its ordinary meaning is “one that makes 

public,” and “the reproducer of a work intended for public 

consumption.” WEBSTER’S THIRD NEW INTERNATIONAL 

DICTIONARY 1837 (1981); cf. also RESTATEMENT (SECOND)

OF TORTS § 577 (1977) (“Publication 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. Specifically, 

the assault count of the complaint turns on Facebook’s 

allowing the Third Intifada pages 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 pages. 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 

Communications Decency Act 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 Online, 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); Roommates.com, 521 F.3d at 1170-1171

(“[A]ny 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.”)*

 

* 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 

Appellees’ status or conduct as a publisher or speaker but are 

based on Appellees’ breach of its duties 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, which 

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 forfeited, as Klayman acknowledges. Appellant’s 

Br. 23. And to the extent that Klayman means, instead, that 

any such statement allocating rights and responsibilities 

between interactive computer services and their users 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 nonpreempted tort action. 
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IV

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

of dismissal. 

So ordered.