United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 18, 2018 Decided February 23, 2018

No. 17-7106

DAWN BENNETT AND 

DJ BENNETT HOLDINGS, LLC,

APPELLANTS

v.

GOOGLE, LLC,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cv-02283)

Harry J. Jordan argued the cause and filed the briefs for 

the appellants.

John K. Roche argued the cause and filed the brief for the 

appellee.

Before: HENDERSON, ROGERS and KAVANAUGH, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.
2

KAREN LECRAFT HENDERSON, Circuit Judge: Offended by 

a third-party blog post, Plaintiff Dawn Bennett (Bennett) and 

her company, DJ Bennett Holdings, LLC (DJ Bennett), sued 

Google LLC (Google) for failing to remove the post. They 

alleged three state-law causes of action: (1) defamation; (2) 

tortious interference with a business relationship; and (3) 

intentional infliction of emotional distress. The district court 

granted Google’s motion to dismiss, concluding that the 

Communications Decency Act (CDA), 47 U.S.C. § 230, 

immunized Google from liability for the publication of thirdparty content. We affirm.

I.

Bennett owns DJ Bennett, a retailer of high-end sports 

apparel.

1

 Scott Pierson is the founder of The Executive SEO 

Agency, which provides search engine optimization and 

marketing (SEO) services. In March 2013, DJ Bennett hired 

Pierson to provide SEO services, seeking to increase its sales. 

After a few months, the parties’ relationship deteriorated and 

Pierson agreed to renegotiate his contract and accept slightly 

less than $20,000 as full payment for his services.

DJ Bennett paid Pierson in five installments but the fifth 

installment was returned by the post office as “undeliverable.” 

Thereafter, Pierson called DJ Bennett’s Vice President and 

General Merchandise Manager, Anderson McNeill. 

According to McNeill, Pierson was “hysterical” and 

“emotionally distraught.” Compl. ¶ 10. Pierson threatened 

DJ Bennett, declaring “I know things, I can do things, and I will 

shut down your website.” Id. In response, McNeil explained 

 

1 The relevant facts are drawn from the complaint and are 

accepted as accurate for this appeal. Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 572 (2007).
3

that DJ Bennett had attempted to mail Pierson his final check 

but that it had been returned. Pierson then gave McNeil an 

alternative address, “the last payment was sent there, and 

[Pierson] cashed it.” Id.

After the business relationship fell apart, Pierson wrote a 

blog titled “DJ Bennett-think-twice-bad business ethics” and 

published it on the internet through Google. Id. ¶ 11. Among 

other things, the blog asserted that (1) “DJ Bennett, the luxury 

sporting goods company, did not pay its employees or 

contractors”; (2) DJ Bennett was “ruthlessly run by Dawn 

Bennett who also operated Bennett Group Financial Services”; 

(3) Bennett falsely stated that Pierson had agreed to reduce his 

hours “as justification for reducing his final invoice by 

$3,200”; (4) Pierson’s counsel described Bennett as “judgment 

proof”; and (5) “DJ Bennett owes thousands and thousands to 

many people.” Id. ¶¶ 11-12. The blog concluded: “I urge 

you to think twice before giving your patronage to DJ 

Bennett.com . . . . The website is pretty, but the person running 

the show is quite contemptible.” Id. ¶ 12.

Through counsel, Bennett attempted to convince Pierson 

to remove the post; Pierson refused. Bennett’s counsel also 

contacted Google’s general counsel and other senior corporate 

officers, “asking them to drop Pierson’s blog because it 

violated Google’s Guidelines of what is appropriate material 

for inclusion in blogs.” Id. ¶ 13. Notwithstanding Bennett’s 

complaints, Google “continues[] to publish Pierson’s blog.” 

Id. Bennett also alleged that “as of May 23, 2016, not a single 

comment has been received in two years; Pierson was 

artificially maintaining his blog in a favorable position by using 

black-hat tactics, a practice universally condemned by the 

digital media industry, including Google.” Id. 
4

Google has a “Blogger Content Policy” that regulates, 

inter alia, adult content, child safety, hate speech, crude 

content, violence, harassment, copyright infringement, and 

malware and viruses.2 Joint Appendix (JA) 42-45. Users are 

encouraged to “flag[]” policy violations through the website. 

JA 45. If Google finds that the blog does violate its content 

policies, it may limit access to the blog, delete the blog, disable 

the author’s access or report the user to law enforcement. Id. 

If the blog does not violate Google’s policies, Google “will not 

take any action against the blog or blog owner.” Id.

II.

We review the district court’s dismissal de novo. 

Klayman v. Zuckerberg, 753 F.3d 1354, 1357 (D.C. Cir. 2014). 

The CDA recognizes that the internet offers “a forum for a true 

diversity of political discourse, unique opportunities for 

cultural development, and myriad avenues for intellectual 

activity.” 3 47 U.S.C. § 230(a)(3). Accordingly, the Act 

codifies “the policy of the United States (1) to promote the 

 

2 The “Blogger Content Policy” is not attached to the 

complaint or the motion to dismiss but it is included in the Joint 

Appendix. Although Google does not challenge its admissibility, it 

is unclear if we may take judicial notice of it. See Kaempe v. Myers, 

367 F.3d 958, 965 (D.C. Cir. 2004) (taking judicial notice of public

records). Because the Policy does not alter our analysis, however, 

we consider it as background only.

3 The Communications Decency Act is something of a 

misnomer; the Act does not promote decency so much as it acts as a 

bulwark against “intrusive government regulation of speech.” 

Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997). 

Although unrestrained speech can often be several shades from 

decent, see Cohen v. California, 403 U.S. 15 (1971), that is the 

tradeoff that the Congress has apparently endorsed by insulating 

computer service providers from liability, 47 U.S.C. § 230(c)(1).
5

continued development of the Internet and other interactive 

computer services . . . [and] (2) to preserve the vibrant and 

competitive free market that presently exists for the 

Internet . . . .” 47 U.S.C. § 230(b). In accordance with that 

policy, section 230 of the CDA contains a “Protection for 

‘Good Samaritan’ blocking and screening of offensive 

material,” which reads: “[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.” Id. § 230(c)(1). It further states: “[n]o provider or 

user of an interactive computer service shall be held liable on 

account of . . . 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.” 

Id. § 230(c)(2). To give these provisions teeth, section 230 

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.” Id. § 230(e)(3).

The seminal case of Zeran v. America Online, Inc. 4

explained the core functions of the CDA more than two 

decades ago: 

The amount of information communicated via 

interactive computer services is . . . staggering. 

The specter of tort liability in an area of such 

prolific speech would have an obvious chilling 

 

4 On the 20th anniversary of the CDA, Zeran was heralded as 

“internet law’s most important judicial decision.” Eric Goldman & 

Jeff Kosseff, Commemorating the 20th Anniversary of Internet 

Law’s Most Important Judicial Decision, THE RECORDER (Nov. 10, 

2017), perma.cc/RR2M-UZ2M.
6

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.

129 F.3d 327, 331 (4th Cir. 1997). The intent of the CDA is 

thus to promote rather than chill internet speech. Id. By the 

same token, however, the CDA “encourage[s] service 

providers to self-regulate the dissemination of offensive 

material over their services.” Id. In that respect, the CDA 

corrected the trajectory of earlier state court decisions that had 

held computer service providers liable when they removed 

some—but not all—offensive material from their websites. 

Id. (analyzing legislative history and explaining holding of 

Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 

1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995)). Put 

differently, section 230 incentivized companies to neither 

restrict content nor bury their heads in the sand in order to avoid 

liability. Id. And in doing so, it paved the way for a robust 

new forum for public speech as well as “a trillion-dollar 

industry centered around user-generated content.” Eric 

Goldman & Jeff Kosseff, Commemorating the 20th 

Anniversary of Internet Law’s Most Important Judicial 

Decision, THE RECORDER (Nov. 10, 2017), perma.cc/RR2MUZ2M. 

Like other circuits, we have followed Zeran’s lead and 

created a three-part test to determine CDA preemption. 
7

Klayman, 753 F.3d at 1357-59 (citing Zeran and related 

precedent from other circuits). Google can establish 

immunity by showing that (1) it is a “provider or user of an 

interactive computer service”; (2) the relevant blog post 

contains “information provided by another information content 

provider”; and (3) the complaint seeks to hold Google liable as 

the “publisher or speaker” of the blog post. Id. at 1357

(quoting 47 U.S.C. § 230(c)). Thus, there is a dividing line 

between “interactive computer service”5providers—which are 

generally eligible for CDA section 230 immunity—and 

“information content provider[s],”6 which are not entitled to 

immunity. Id. The law, then, distinguishes “service” from 

“content.” Id.

In Klayman, we held 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.” Id. at 1358. We noted that, 

although the Facebook website’s “Statement of Rights and 

Responsibilities” might create an independent cause of action 

for breach of contract, the statement did not change the fact that 

the plaintiff was seeking to hold Facebook liable as a 

“publisher” of the objectionable material. Id. at 1359. 

Accordingly, we affirmed the district court’s dismissal of the 

 

5

“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).

6

“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.” 47 U.S.C. § 230(f)(3).
8

plaintiff’s claims pursuant to section 230 of the CDA. Id.; see 

also Zeran, 129 F.3d at 331 (rejecting argument that defendant 

was “distributor” rather than “publisher” under CDA because 

it acquired “knowledge of the defamatory statements’ 

existence”).7

This case is controlled by the three-part test in Klayman. 

First, as many other courts have found, Google qualifies as an 

“interactive computer service” provider because it “provides or 

enables computer access by multiple users to a computer 

 

7 Bennett places great reliance on the Ninth Circuit’s holding 

in Fair Housing Council of San Fernando Valley v. Roommates.com, 

LLC, 521 F.3d 1157, 1163 (9th Cir. 2008) (en banc). We of course 

are not bound by extra-circuit precedent but we nonetheless take a 

moment to distinguish Roommates.com, concluding that it cannot 

bear the weight of Bennett’s reliance because it marks an outer limit

of CDA immunity—a limit that this case does not even approach. 

In Roommates.com, the court held that a website can simultaneously 

be an “interactive computer service” provider and an “information 

content provider” (e.g., it can provide both services and content). 

Roommates.com, 521 F.3d at 1162. The court concluded that the 

defendant had, “at least in part,” helped develop content on its 

website by requiring users to select from a “limited set of prepopulated answers” as part of the registration process. Id. at 1166. 

For example, when creating a “Roommates.com” profile, the user 

had to state his sex and sexual orientation and identify whether he 

had children. Id. at 1161-62. Because Roommates.com created 

the universe of pre-populated answers, required users to answer its 

questions before registering and used those answers in providing 

tailored services to its users, the court held that Roommates.com was 

a content provider as well as a service provider and that it was not 

entitled to CDA immunity for the content that remained on its site. 

Id. at 1164. In so holding, the Ninth Circuit emphasized that 

“Congress sought to immunize the removal of user-generated 

content, not the creation of content.” Id. at 1163 (emphasis in 

original).
9

server.” 47 U.S.C. § 230(f)(2); see, e.g., Parker v. Google, 

Inc., 422 F. Supp. 2d 492, 501 (E.D. Pa. 2006), aff’d 242 F. 

App’x 833 (3d Cir. 2007) (“[T]here is no doubt that Google 

qualifies as an ‘interactive computer service’ and not an 

‘information content provider.’”). Indeed, Bennett concedes 

that fact. Appellant’s Br. 6 (“Google provides interactive 

computer services, including websites and social media 

platforms.”). Second, Bennett alleges that only Pierson—and 

not Google—created the offensive content on the blog. 

Compl. ¶¶ 11-12.

Third, Bennett seeks to hold Google liable as a publisher 

of the content. Bennett argues that by establishing and 

enforcing its Blogger Content Policy, Google is influencing—

and thus creating—the content it publishes. This argument 

ignores the core of CDA immunity, that is, “the very essence 

of publishing is making the decision whether to print or retract 

a given piece of content.” Klayman, 753 F.3d at 1359. In 

other words, there is a sharp dividing line between input and 

output in the CDA context. Id. Here, the input is the content 

of Pierson’s negative blog about Bennett’s business; that blog 

was created exclusively by Pierson. Google’s role was strictly 

one of output control; it had the choice of leaving Pierson’s 

post on its website or retracting it. It did not edit Pierson’s 

post nor did it dictate what Pierson should write. Because 

Google’s choice was limited to a “yes” or “no” decision 

whether to remove the post, its action constituted “the very 

essence of publishing.” Id. 

In sum, the CDA “allows [computer service providers] to 

establish standards of decency without risking liability for 

doing so.” Green v. Am. Online, Inc., 318 F.3d 465, 472 (3d 

Cir. 2003). Although “other types of publishing activities 

might shade into creating or developing content,” the decision 

to print or retract is fundamentally a publishing decision for 
10

which the CDA provides explicit immunity. Klayman, 753

F.3d at 1359 n.*; see Zeran, 129 F.3d at 332 (“[B]oth the 

negligent communication of a defamatory statement and the 

failure to remove such a statement when first communicated by 

another party . . . constitute publication.”). “None of this 

means, of course, that the original culpable party who posts 

defamatory messages [will] escape accountability.” Zeran, 

129 F.3d at 330. It means only that, if Bennett takes issue with 

Pierson’s post, her legal remedy is against Pierson himself as 

the content provider, not against Google as the publisher. 

For the foregoing reasons, the judgment of dismissal is 

affirmed.

So ordered.