38 Defenses and Limitations

The First Amendment provides important limits by requiring that the plaintiff prove a higher level of culpability in cases involving public officials, public figures and private individuals involved with matters of public concern. In addition, there are a number of defenses to defamation claims, and they fall into two main categories: absolute and qualified or conditional defenses.

Absolute defenses. These include consent, truth and absolute privileges that protect certain contexts. Consent is straightforward in that it is similar to the analysis in battery; if the plaintiff consented to the communication, there can be no liability for its having occurred. As demonstrated in Federal Credit v. Fuller and Sullivan v. N.Y. Times, supra, truth is a significant defense to defamation claims. Indeed, truth can trump even outright malice. See e.g. Restatement (First) of Torts § 582 (1938) (“The truth of a defamatory statement of fact is a complete defense to an action for defamation.” Comment a. Except as otherwise provided by statute, the truth of a defamatory statement of fact is a complete defense although it is made for no good purpose and is inspired by ill will toward the person about whom it is published and is made solely for the purpose of harming him.”) Some jurisdictions have modified this common law rule by statute. However, the default rule illustrates the strength of truth as a defense. Finally, absolute privileges cover communications in particular contexts and permit a broad range of statements so long as they are relevant to or made within the proper scope of the given context. For example, there is an absolute privilege extended to judicial and legislative proceedings, and even knowingly making false statements during deliberation or debate on the floor of the legislature would be protected from liability for defamation even if subject to other forms of sanction or penalty. Hutchinson v. Proxmire, 443 U.S. 111 (1979)). There is also an absolute privilege shielding communications between spouses.

Qualified privileges protect certain occasions for which the law has recognized a need or justification for communications. Several exist but the most common is likely the “common interest” (or mutual interest) privilege that provides a limited entitlement to share information.

Restatement (First) of Torts § 596 (1938)

An occasion is conditionally privileged when the circumstances are such as to lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that facts exist which another sharing such common interest is entitled to know.

The privilege is frequently used in employment contexts for hiring and promotion and the general rule is that belonging to the same organization (such as a religious, charitable, social or professional organization) gives rise to a privilege for communications among members or colleagues to discuss the qualifications and character of their officers and members. Partners, shareholders, owners of common property and other joint venturers are also recognized as having a common privilege, for similar reasons.

If a defendant proves the existence of a qualified privilege, the plaintiff may defeat the privilege by showing the defendant abused the privilege or acted with common law malice. Restatement (Second) of Torts, § 613(1)(h), p. 307.) Conditional privileges can also be defeated when parties exceed their scope, potentially by sharing irrelevant negative information or through excessive publication. Some states have also formalized qualified privileges for news reporting or other limited purposes.

Lastly, the statute of limitations in all states ranges from 1 to 3 years. The length may even vary by the type of defamation; in Arkansas, the limit is one year for slander (Ark. Code Ann. § 16-56-104) and three years for libel (Ark. Code Ann. § 16-56-105).

Tuomela v. Waldorf-Astoria Grand Wailea Hotel, U.S. Dis. Ct. D. Hawai’i (2021)
(2021 WL 233695)

[***][Wendy] Tuomela’s Complaint alleges that she was wrongfully terminated in April 2018 from her 20-year tenure of employment at the Grand Wailea Hotel. She claims she was falsely accused of theft, and was forced to pay the Hotel $900 in cash, which apparently was part of the amount she was accused of stealing. The Complaint alleges that after being accused, she was threatened with incarceration by a security guard (Michael Palazzotto) and Defendant’s human resources representative (Carol Kawabata) if she did not pay (or return) the money. It alleges that on April 17, 2018, Kawabata entered into a contract with Plaintiff to keep the circumstances of her termination confidential. Instead, the Complaint alleges that Kawabata told a hotel restaurant manager, Justin Sugarman, that Plaintiff was fired for theft and misconduct, and Sugarman told other staff members. Since that time, Plaintiff was denied comparable employment for similar positions from other employers and was “essentially blackballed from any employment in Wailea[.]” She alleges that a “false police report surfaced when she was applying for a job which required a background check [and] [d]ue to the defamatory nature of the police report she did not get the position she was seeking.”

Plaintiff [***] alleges “defamation of character” based on two general theories. [fn] First, Tuomela contends that she was defamed when Kawabata told Sugarman “confidential information” that Tuomela was terminated for theft and misconduct, and then Sugarman told others. She alleges that her reputation was damaged as a result. Second, Count Three alleges:

On August 3rd, 2018, in a continuing search for comparable employment, Ms. Tuomela was confronted with a police report [***] that states … she is accused of theft. The false police report surfaced when she was applying for a job which required a background check. Due to the defamatory nature of the police report she did not get the position she was seeking. … She has not been able to gain employment equal to the position that she lost as a server at the Humu Room in the Grand Wailea Hotel. Waldorf’s Motion is directed only at the defamation allegations regarding the police report. [fn] That is, Waldorf does not seek, at least with this Motion, a ruling regarding the allegations about statements Kawabata made to Sugarman that were relayed to others. Rather, this Motion only argues that statements made to police complaining of a crime are not actionable as defamation, contending that such statements are absolutely privileged.

A. An Absolute Privilege is the Minority Rule

Waldorf cites several cases holding that an absolute privilege protects statements made to police, and thus encourages persons to report criminal activity to authorities without fear of retaliation. The interest is “encouraging the free and unhindered communications to law enforcement authorities necessary to facilitate the investigation and prosecution of crimes.” Ledvina v. Cerasini, 213 Ariz. 569 (Ariz. Ct. App. 2006); see also, e.g., Eddington v. Torrez, 311 Mich. App. 198 (Mich. Ct. App. 2015) (“[P]ersons who make statements to the police when reporting crimes or assisting the police in investigating crimes enjoy a privilege in those statements against the police divulging them for any purpose other than law enforcement. Accordingly, those statements may not be used to sustain a defamation claim.”). In Hagberg v. California Federal Bank FSB, 32 Cal.4th 350 (Cal. 2004), for example, the California Supreme Court held that, under California Civil Code § 47(b),^[1] statements made to law enforcement personnel reporting suspected criminal activity are “absolutely” privileged “and can be the basis for tort liability only if the plaintiff can establish the elements of the tort of malicious prosecution.” [cc] “[T]he absolute privilege established by section 47(b) serves the important public policy of assuring free access to the courts and other official proceedings. It is intended to ‘assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.’ ” Id. at 249, 81 P.3d at 245 ([c] (emphasis omitted)).^[2]

*3 But Waldorf relies on a minority rule. Rather, as the Idaho Supreme Court recently reiterated, “the majority rule is that statements made to law enforcement enjoy [only] a qualified privilege from defamation actions, which can be lost through abuse, such as when statements are made with malice or in bad faith.” [c]. “[A] qualified privilege [strikes] the appropriate balance between protecting those who seek to report criminal conduct to law enforcement and the countervailing interest in remedying the ‘potentially disastrous consequences that may befall the victim of a false accusation of criminal wrongdoing.’ ” [c]

In analyzing case law from various jurisdictions, the Connecticut Supreme Court followed “a majority of states that have addressed this issue[,]” [c], and agreed with the Florida Supreme Court that “a qualified privilege is sufficiently protective of [those] wishing to report events concerning crime. [c] There is no benefit to society or the administration of justice in protecting those who make intentionally false and malicious defamatory statements to the police.” Id. (quoting Fridovich v. Fridovich, 598 So. 2d 65, 69 (Fla. 1992)). In turn, Fridovich broadly surveyed state case law and other authorities, 598 So. 2d at 67-68 & n.4, and followed “a majority of the other states [that] have held in this context, that defamatory statements voluntarily made by private individuals to the police … prior to the institution of criminal charges are presumptively qualifiedly privileged.” Id. at 69. Many of these opinions distinguish between statements made as part of existing judicial or quasi-judicial proceedings (such as trial testimony)—for which an absolute privilege from defamation exists—and statements to police before the initiation of proceedings—which are subject to a qualified privilege. [cc]

B. The Court Applies the Majority Rule—A Qualified Privilege

Under the Erie doctrine, the court applies substantive Hawaii law in the present case, which is based on diversity of citizenship. See Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). Hawaii has not adopted either the majority or minority rule as to the degree of privilege from defamation given to statements made to police before criminal proceedings are initiated.^[3] Thus, absent certifying a question to the Hawaii Supreme Court, this “court, sitting in diversity, must use its best judgment to predict how the Hawaii Supreme Court would decide the issue.” [c] “In so doing, a federal court may be aided by looking to well-reasoned decisions from other jurisdictions.” [c] And—using its best judgment and analyzing those well-reasoned decisions—this court applies the majority rule here. That is, a qualified (not absolute) privilege applies under Hawaii law.

*4 The court begins with the proposition that, under Hawaii law, statements that “impute to a person the commission of a crime” are defamatory per se.^[4] [cc] As such, Hawaii courts would likely conclude that “the law should provide a remedy” against “those who make intentionally false and malicious defamatory statements to the police.” Fridovich, 598 So. 2d at 69. Although the law should encourage reporting of criminal activity, “public policy is [not] violated by requiring that citizens who report criminal activities to the police do so in good faith.” Gallo, 935 A.2d at 114 (quoting Caldor, Inc. v. Bowden, 330 Md. 632 (Md. Ct. App. 1993)). “Those who maliciously volunteer false accusations of criminal activity to the police should not be granted absolute immunity. Although [courts] do not wish to discourage the reporting of criminal activity, [they] also do not wish to encourage harassment, or wasting of law enforcement resources, by investigations of false, maliciously made complaints[.]” Id. (quoting Bowden, 625 A.2d at 968).

Further, the Hawaii Supreme Court has not hesitated to eliminate absolute immunity in favor of a qualified privilege in tort situations against government officials. In Medeiros v. Kondo, 55 Haw. 499 (1974), for example, the Hawaii Supreme Court held that a nonjudicial government official has only a qualified privilege for acts done while exercising authority, and may be held liable where the official “is motivated by malice, and not by an otherwise proper purpose.” Id. at 503. In so doing, it overruled prior Hawaii law “[t]o the extent that absolute immunity from tort suit for nonjudicial officers may have been the law in Hawaii[.]” Id. at 500-01; see also Runnels v. Okamoto, 56 Haw. 1, 4 (1974) (explaining that “[i]n Kondo, we announced that the doctrine of ‘absolute immunity’ would no longer be permitted to shield a nonjudicial government officer for his tortious acts[,]” and applying Kondo’s qualified privilege standard to a defamation claim). The Hawaii Supreme Court later extended Kondo to acts of the Honolulu prosecuting attorney, again rejecting absolute immunity in favor of a qualified privilege. See Orso v. City & Cnty. of Honolulu, 56 Haw. 241, 247-48 (1975), overruled on other grounds by Kahale v. City & Cnty. of Honolulu, 104 Haw. 341 (2004). These cases rejected absolute immunity because the Hawaii Supreme Court was “unwilling to deny plaintiffs a ‘mere inquiry into malice’ [given its] strong preference for allowing all litigants their day in court.” Kondo, 55 Haw. at 504 (quoting 2 F. Harper & F. James, The Law of Torts § 29.10 at 1645 (1956)). [fn]

*5 With that indication embedded in Hawaii case law, and considering the weight of case law from other jurisdictions, the court concludes that under Hawaii law an absolute privilege does not apply to complaints made to police. The court declines to apply the minority rule suggested by Waldorf that communications in a police report are absolutely privileged.

Given this ruling, the court will apply existing Hawaii law, which holds more generally that, for claims of defamation, a speaker is protected by a qualified privilege when he or she “reasonably acts in the discharge of some public or private duty, legal, moral, or social, and where the publication concerns subject matter in which the author has an interest and the recipients of the publication a corresponding interest or duty.” Russell, 53 Haw. at 460, 497 P.2d at 44.

[T]he qualified privilege is conditional and it must be exercised (1) in a reasonable manner and (2) for a proper purpose. The immunity is forfeited if the defendant steps outside the scope of or abuses the privilege. The qualified privilege may be abused by (1) excessive publication, (2) use of the occasion for an improper purpose, or (3) lack of belief or grounds for belief in the truth of what is said.

Kainz v. Lussier, 4 Haw. App. 400, 405 (Haw. Ct. App. 1983) (citations omitted). And the party claiming defamation has the burden of proving that a qualified privilege was abused. See Towse v. State, 64 Haw. 624, 632 (1982).

For the foregoing reasons, Defendant Waldorf’s Motion for Judgment on the Pleadings as to Count Three, alleging defamation of character, is DENIED. Count Three remains in full.

Note 1. Why do you think the court declined to adopt Waldorf-Astoria’s argument in favor of an absolute privilege, descriptively and normatively? What are situations in which an absolute privilege makes sense, in your view?

Note 2. For a privilege that’s considered “conditional” and “qualified”, what do you observe about its scope as defined in Russell: “a speaker is protected by a qualified privilege when he or she reasonably acts in the discharge of some public or private duty, legal, moral, or social, and where the publication concerns subject matter in which the author has an interest and the recipients of the publication a corresponding interest or duty”? What duties are included or excluded? What perspective is used and what is the effect of that choice?

Note 3. The socioeconomic disparity between the parties—one of whom appears pro se (that is, represents themselves in court)—is striking. Does the court adopt appropriate modes of dealing with it? Is defamation properly calibrated here to balance speech and reputational interests? Why or why not?

Statutory Defenses

In addition to privileges available at common law, significant statutory defenses exist that bar or limit defamation claims.

The first of these is a federal statute. Congress enacted the Communications Decency Act (“CDA”)—whose Section 230 has been in the news a great deal recently—to immunize internet service providers from claims for defamation under certain conditions. The immunity was broad and robust and has been attacked again and again in court with very few lapses or suggestions that it can be undone. In most cases, challenges to Section 230’s immunity have failed. (If you know of counter-examples, they may have to do with child pornography or sex trafficking; those are sometimes considered “sui generis” categories that require their own treatment given how seriously offensive they are and Congress codified certain exceptions at Section (230 (e).)

The next case provides an example of CDA Sec. 230 litigation. It illustrates how even in a very factually compelling context in which there were existing policy prerogatives and legislative protections against racially discriminatory practices in fair housing, the immunity was upheld.

Chicago Lawyers’ Committee for Civil Rights, Inc. v. Craigslist, Inc. U.S. Dist. Ct. N.D. Ill. (2011)
(461 F. Supp.2d 681)

Plaintiff Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. (“CLC”) has filed suit under 42 U.S.C. § 3604(c) of the Fair Housing Act (“FHA”) seeking monetary, declaratory, and injunctive relief against Defendant “Craigslist, Inc.” (“Craigslist”). CLC alleges that such relief is warranted because Craigslist publishes notices, statements, or advertisements with respect to the sale or rental of dwellings that indicate (1) a preference, limitation, or discrimination on the basis of race, color, religion, sex, familial status, or national origin; and (2) an intention to make a preference, limitation, or discrimination on the basis of race, color, religion, sex, familial status, or national origin. Craigslist has moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c) (“Rule 12(c)”), contending that Plaintiff’s claim is barred based on the immunity afforded to “providers … of interactive computer services” (“ICSs”) under 47 U.S.C. § 230 (“Section 230”).

For the reasons below, the Court grants Craigslist’s motion.

I. The Parties

Plaintiff CLC, a public interest consortium of forty-five law firms, is an Illinois non-profit organization with its principal place of business in Chicago, Illinois. CLC’s mission is to promote and protect civil rights, particularly the civil rights of the poor, ethnic minorities, and the disadvantaged. CLC strives to eliminate discriminatory housing practices by: (1) educating people about their rights under the fair housing and fair lending laws; (2) investigating complaints of fair housing discrimination; (3) providing referral information for non-discrimination housing matters; (4) advocating on a wide range of housing related issues, such as public housing, increased affordable housing, and fair and equal mortgage lending opportunities; and (5) providing free legal services to individuals and groups who wish to exercise their fair housing rights and secure equal housing opportunities. (Id.)

Defendant Craigslist is a Delaware corporation located in San Francisco, California that operates a website through “a small staff in a single office.” In a typical month, Craigslist posts more than 10 million items of “user-supplied information,” and user postings are increasing at a rate of approximately 100% per year.

[The granted permission to the National Fair Housing Alliance, as well as Amazon, AOL, Google, Yahoo! and eBay, among others, to submit amicus briefs.]

II. The Pleadings

Craigslist operates a website that allows third-party users to post and read notices for, among other things, housing sale or rental opportunities. The website, which is accessible at “chicago.craigslist.org” (among other web addresses), is titled “craigslist: chicago classifieds for jobs, apartments, personals, for sale, services, community: Non-commercial bulletin board for events, jobs, housing, personal ads and community discussion.” The website contains a link entitled “post to classifieds” that, if clicked, will display a webpage located at “post.craigslist.org/chi” and titled “chicago craigslist >> create posting.” That webpage categorizes posts and advertisements and offers the following links: (1) “job,” (2) “gigs,” (3) “housing,” (4) “for sale/wanted,” (5) “resume,” (6) “services offered,” (7) “personal/romance,” (8) “community,” and (9) “event.” The webpage also contains additional links labeled “log into your account ” and “(Apply for Account).

When a user clicks on the website link “housing,” the website will display a page located at “post.craigslist.org/chi/H” that bears the title “chicago craigslist > housing > create posting” and contains a line reading “Are you offering space/housing, or do you need space/housing?” On this webpage, directly under this quoted text, there are two links labeled “I am offering housing” and “I need housing” as well as two other links (at the upper right of the page) labeled “log into your account” and “(Apply for Account).”

[***] When home-seekers are interested in posted sale or rental housing opportunities, they obtain the necessary contact information from content published on Craigslist’s website.

CLC alleges that, through the above-described process, Craigslist publishes housing advertisements on its website that indicate a preference, limitation, or discrimination, or an intention to make a preference, limitation, or discrimination, on the basis of race, color, national origin, sex, religion and familial status. (See also id. ¶¶ 142–51 (alleging that CLC continuously monitors Craigslist’s website and that it has diverted substantial time and money away from its fair housing program to efforts directed in response to Craigslist’s publication of discriminatory housing advertisements).) Here is a sampling of the allegedly objectionable statements within rental postings on Craigslist’s website:

• “African Americans and Arabians tend to clash with me so that won’t work out” (Pl.’s Compl. at ¶ 17)
• “Neighborhood is predominantly Caucasian, Polish and Hispanic” (Id. at ¶ 18)
• “NO MINORITIES” (Id. at ¶ 19)
• “Non–Women of Color NEED NOT APPLY” (Id. at ¶ 21)
• “looking for gay latino” (Id. at ¶ 24) *686
• “This is not in a trendy neighborhood—very Latino” (Id. at ¶ 26)
• “This neighborhood is probably what you’ve heard … predominantly hispanic, but changing slowly” (Id. at ¶ 27)
• “All in a vibrant southwest Hispanic neighborhood offering great classical Mexican culture, restaurants and businesses” (Id. at ¶ 28)
• “Requirements: Clean Godly Christian Male.” (Id. at ¶ 30)
• “Owner lives on the first floor, so tenant must be respectful of the situation, preferably not 2 guys in their mid twenties, who throw parties all the time” (Id. at ¶ 33)
• “LADIES PLEASE RENT FROM ME” (Id. at ¶ 34)
• “This is what I am looking for … and the more a candidate has, the less I will ask in rent: Female Christian” (Id. at ¶ 37)
• “Christian single straight female needed.” (Id. at ¶ 39)
• “Only Muslims apply” (Id. at ¶ 40)
• “near St Gertrudes [sic] church” (Id. at ¶ 41)
• “Walk to shopping, restaurants, coffee shops, synagogue.” (Id. at ¶ 43)
• “very quiet street opposite church” (Id. at ¶ 48)
• “Catholic Church, and beautiful Buddhist Temple within one block” (Id. at ¶ 54)
• “Apt. too small for families with small children” (Id. at ¶ 60)
• “Perfect for 4 Med students” (Id. at ¶ 61)
• “Perfect place for city single” (Id. at ¶ 63)
• “Absolutely ideal for a young professional and socialite!” (Id. at ¶ 67)
• “Perfect for Young Family or 2 Broke ASS Roommates” (Id. at ¶ 79)
• “Young cool landlord who wants one nice quiet person to rent her basement” (Id. at ¶ 81)
• “Non-smoking adults preferred” (Id. at ¶ 82)

CLC alleges that these and similar statements discourage or prohibit home-seekers from pursuing housing and thus decrease the number of units available to them. (Id. at ¶¶ 16, 20, 22, 29, 35, 59.)

I. The Statutes at Issue

A. The Fair Housing Act

To redress this alleged injury, CLC here seeks a declaratory judgment that Craigslist violated 42 U.S.C. § 3604(c) (“Section 3604”) of the FHA, …which “prohibits racial discrimination of all kinds in housing.” Tyus v. Urban Search Mgmt., 102 F.3d 256, 260 (7th Cir.1996). Section 3604(c), in particular, makes it unlawful:

To make, print, or publish, or cause to be made, printed, or published any notice, *687 statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.

42 U.S.C. § 3604(c). As the NFHA points out in its amicus submission, courts have held that Section 3604(c) applies to a variety of media, including newspapers, brochures, multiple listing services, telecommunication devices for the deaf, a housing complex’s “pool and building rules,” as well as “any other publishing medium.” [cc] Along the same lines, the United States Department of Housing and Urban Development (“HUD”) has issued a regulation … construing Section 3604(c) as applying to “[w]ritten notices and statements includ[ing] any applications, flyers, brochures, deeds, signs, banners, posters, billboards or any documents used with respect to the sale or rental of a dwelling.” 24 C.F.R. § 100.75.

B. The Communications Decency Act

Notwithstanding the FHA’s broad scope, Craigslist argues that Plaintiff’s Complaint fails on the pleadings because of the immunity afforded under Section 230(c)(1) of the CDA. Section 230(c) consists of two operative provisions, each under the subheading “Protection for Blocking and Screening of Offensive Materials:”^[5]

*688 (c) Protection for “good samaritan” blocking and screening of offensive material

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

(2) Civil liability. No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1). 47 U.S.C. § 230(c). …

[Note: “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 …”. “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)(2), (f)(3).]

These provisions preempt contrary state law, but do not “prevent any State from enforcing any State law that is consistent with this section.” 47 U.S.C. § 230(e)(3). In addition, Section 230 exempts certain areas of law from its scope, but the FHA is not among them. See 47 U.S.C. §§ 230(e)(1), (2), (4) (excluding intellectual property laws, criminal laws, and the Electronic Privacy Act).

Near-unanimous case law holds that Section 230(c) affords immunity to ICSs against suits that seek to hold an ICS liable for third-party content. … Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum. * * *

Congress made a policy choice, however, not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.

Congress’ purpose in providing the § 230 immunity was thus evident. Interactive computer services have millions of users. The amount of information communicated via interactive computer services is therefore staggering. The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems. Faced with potential liability for each message republished by their services, interactive computer service providers might choose to severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect. [Citations omitted] Virtually all subsequent courts that have construed Section 230(c)(1) have followed [early precedents upholding immunity] … and several have concluded that *690 Section 230(c)(1) offers ICSs a “broad,” “robust” immunity [citations omitted].

*692 III. The Scope of Section 230(c)(1)

The parties dispute the operative effect of Section 230(c)(1). CLC argues that…, Section 230(c)(1) must be read only as a definitional clause that provides no immunity on its own, but rather determines the subset of ICSs that fall within the grant of immunity afforded under Section 230(c)(2). (R. 16–1, Pl.’s Resp. at 8 (“[u]nder [a] straight-forward reading of Section 230(c)(1), an interactive computer service provider would, if it created the offensive material, be subject to treatment as a speaker or publisher and thus understandably would ‘lose the benefit’ of civil liability protection under (c)(2)—because as the author of the content it could not credibly maintain that good faith efforts were made to prevent the offensive disclosure. But where an interactive computer service does not create the offensive information, it is merely the provider or user, and will be entitled to civil liability protection only for its efforts to block and screen.”).)

Craigslist, in contrast, argues that Section 230(c)(1) grants immunity as to all causes of action against an ICS (so long as the ICS is not the originator of the content at issue). (R. 15–1, Def.’s Motion at 2 (“As a matter of clear federal law, an entity such as [C]raigslist may not be held liable for unlawful content that, as here, originates not from [C]raigslist but from users of the [C]raigslist website. [C]raigslist falls squarely within the protection afforded by [Section 230], which broadly immunizes interactive computer service providers from liability for third-party content.”).) The Court rejects both positions. …

[T]he Court concludes that Section 230(c)(1) does not bar “any cause of action,” as … Craigslist contends, but instead is more limited—it bars those causes of action that would require treating an ICS as a publisher of third-party content.

… Section 230(c)(1) provides that *696 “[n]o provider … of an interactive computer service shall be treated as a publisher”—a term the CDA does not define— “for information provided by another information content provider.” While this language does not grant immunity per se, cf. 47 U.S.C. § 230(c)(2), it does prohibit treatment as a publisher, which, quite plainly, would bar any cause of action that requires, to establish liability, a finding that an ICS published third-party content. As the Seventh Circuit already has suggested, “defamation law would be a good example of such liability,” … so too, as it turns out, are causes of action under Section 3604(c). 42 U.S.C. § 3604(c) (rendering it illegal “[t]o make, print, or publish, or cause to be made, printed, or published any [discriminatory] notice, statement, or advertisement …” (emphasis added)).

This plain meaning of the statutory text is not at odds with the intentions of Section 230(c)(1)’s drafters. Indeed, Congress did not intend to grant a vast, limitless immunity, but rather enacted Section 230(c) specifically to overrule the court decision in Stratton Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y.Sup.Ct. May 24, 1995). See, e.g., H.R. Conf. Rep. No. 104–458, at 194 (1996) (“One of the specific purposes of this section is to overrule Stratton Oakmont v. Prodigy and any other similar decisions which have treated such providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material. The conferees believe that [Stratton Oakmont] create[s] serious obstacles to the important federal policy of empowering parents to determine the content of communications their children receive through interactive computer services.”). In that case, the court held that an internet access provider who used filtering technology could be held liable for libelous third-party statements posted on its bulletin board service. Stratton Oakmont, 1995 WL 323710 at *2–4 (determining that, under defamation law, Prodigy, an internet access provider, was a publisher rather than a distributor because “[b]y actively utilizing technology and manpower to delete notes from its computer bulletin boards on the basis of offensiveness and ‘bad taste’… PRODIGY is clearly making decisions as to content … and such decisions constitute editorial control”).

Thus, when Congress enacted Section 230(c), it did so to address the problem of holding liable for defamation ICSs that reviewed third-party content (as in Stratton Oakmont,) while leaving free from liability ICSs that did not review content. … Even though Congress specifically aimed to overrule Stratton Oakmont, a defamation case, it did so by using language—a prohibition against “treat[ing] [an ICS] as a publisher”—that plainly bars any claim *697 that requires “publishing” as an element. … In any event, regardless of whether Congress chose Section 230(c)(1)’s language with the FHA in mind, what is important here is that the plain meaning of the statute is not at odds with Congress’ intent. … The Court’s reading is at least as harmonious with congressional intent as either of the parties’ proposed alternatives—Congress enacted Section 230(c)(1) to overrule Stratton Oakmont, not to create limitless immunity (as Craigslist suggests) or no immunity at all (as CLC suggests).

Other rules of statutory construction further support the Court’s reading. Limiting the immunity afforded under Section 230 to those claims that require “publishing” as an essential element—as opposed to any cause of action—gives effect to the different language in Sections 230(c)(1) and (c)(2).^[6] Moreover, the Court’s reading does not clash with the statutory captions. See United States v. Tedder, 403 F.3d 836, 844 (7th Cir.2005) (statutory “[t]itles, headings, and captions may help disambiguate adopted texts, but they are not themselves rules of law”). Indeed, as the Seventh Circuit has observed, it seems rather unlikely that, in enacting the CDA and in trying to protect “Good Samaritans” … filtering offensive conduct, Congress would have intended a broad grant of immunity for ICSs that do not screen any third-party content whatsoever. … And because it is something less than an absolute grant of immunity, state legislatures may be able to enact, consistent with Section 230, initiatives^[7] that induce or require online service providers to protect the interests of third parties … For all these reasons, the Court here holds that, at a minimum, Section 230(c)(1) bars claims, like the CLC’s claim, that requires publishing as a critical element.^[8]

Applying Section 230(c)(1) here, CLC’s claim fails on the pleadings. First, Craigslist is a “provider … of an interactive computer service” because, as alleged in the Complaint, Craigslist operates a website that multiple users have accessed to create allegedly discriminatory housing notices. See also 47 U.S.C. § 230(f)(2) (defining “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”). These notices, in turn, are “information” that originates, not from Craigslist, but from “another information content provider,” namely the users of Craigslist’s website. 47 U.S.C. § 230(f)(3) (defining “information content provider” as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service”). As a “provider … of an interactive computer service” that serves as a conduit for “information provided by another information content provider,” Craigslist “shall not be treated as a publisher.” 47 U.S.C. § 230(c)(1). Because to hold Craigslist liable under Section 3604(c) would be to treat Craigslist as if it were the publisher of third-party content, the plain language of Section 230(c)(1) forecloses CLC’s cause of action.^[9] See also 47 U.S.C. § 230(e) (excluding *699 certain laws from Section 230’s scope, but not excluding the FHA) …

CONCLUSION

For these reasons, the Court grants Craigslist’s Rule 12(c) motion for judgment on the pleadings.

Note 1. What is the compelling interest that Section 230 is addressing? How is it connected to the concerns of Sullivan and its progeny? What justifications do you see for resolving concerns through creating federal legislation granting immunity, versus creating standards that require case-by-case adjudication? And does the provision of immunity matter if it results in litigation anyway?

Note 2. Do you agree with the court’s ruling, normatively? Should Section 230 confer as much power (or latitude) as it does? What are the alternatives?

Note 3. The opinion in CLC v. Craigslist makes arguments rooted in legislative intent, legal policy, and statutory construction. The court cites to Webster’s Dictionary, for instance, twice—once in a section on the meaning of the word “publisher,” which has been edited out of your version, and a second time in its final footnote on the definition of the word “print.” In so doing, the court displays textualist tendencies and inclines towards formalism. In other instances, such as when it considers the effect on various stakeholders (Good Samaritan content filterers, among others), it inclines towards functionalism. Does this case remind you of Justice Traynor’s approach to products liability law, or of other instances of judicial reasoning?

In addition to the federal limits the CDA places on defamation lawsuits, a number of states have attempted further to limit liability for defamation. Many states have passed legislation that creates immunity from defamation suits in cases in which the claims appear to be motivated by a desire to limit or repress speech about an important public matter. Known as “Anti-SLAPP” statutes, they seek to prevent litigation that appears to be nothing more than “Strategic Litigation Against Public Participation.” These statutes are important to know of, even though they are not applicable in all states. In a number of states, the Anti-SLAPP statute has faced constitutional challenges in court and some have been struck down in whole or in part. The next case features a recent dispute in which Florida’s Anti-SLAPP statute was at issue.

Bongino v. Daily Beast Co., LLC, U.S. District Court, S.D. Florida (2020)
(477 F. Supp.3d 1310)

Plaintiff Dan Bongino is a public figure. A former Secret Service member, Mr. Bongino describes himself as “an outspoken supporter of President Donald Trump. He hosts a podcast, appears on Fox News, writes books, and has more than 1,500,000 followers on social media. Until 2018, he hosted a show on NRATV, the National Rifle Association’s online video channel.

Upon learning that Bongino’s show would no longer air, Defendant’s reporter texted him and asked, “Heard you didn’t renew with NRA TV?” Bongino did not respond. Four days later, the reporter texted again, “Just circling back on this. Probably publishing something today.” Still, no response. Defendant then published an article titled, “Dan Bongino out at NRATV—BONGI-NO-MORE.” (Lachlan Markay, Dan Bongino Out at NRATV, The Daily Beast, https://www.thedailybeast.com/sources-dan-bongino-out-at-nratv (last updated Dec. 11, 2018 2:11 PM)). The article’s subheading reads, “Trump loves the guy. But the gun rights group is downsizing its media operation and his show appears to be a casualty of those plans.” The first sentence continues, “The National Rifle Association’s media arm has dropped pro-Trump firebrand Dan Bongino….”. The article also notes that neither Bongino nor the NRA responded *1315 to Defendant’s requests for comments at first.

After publication, however, Bongino and NRATV responded to the article publicly. The next day, Defendant revised the article to include their reactions. The article now reads, “[Bongino] suggested that the decision not to renew the show was his, not the network’s” and “NRATV released a statement saying the network ‘made every attempt to retain [Bongino] in 2019’ but did not elaborate on the negotiations.”

That article is the basis for this suit. [***] Bongino claims the article conveys that NRATV fired him for cause; in truth he decided not to renew his contract, he says. On that basis, he argues the article “imputes” to him an “unfitness to perform the duties” of his job, and therefore constitutes libel.

Defendant now moves to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). [***] Defendant seeks to recover attorneys’ fees and costs under Florida’s anti-SLAPP statute, which the Florida legislature enacted to prohibit lawsuits that “are inconsistent with the right of persons to exercise … free speech in connection with public issues.” See Fla. Stat. § 768.295(1). The Court addresses these arguments in turn.^[10] [***]

Plaintiff emphasizes that the “gist” of Defendant’s article implies to a reasonable reader that Plaintiff was fired for cause. Specifically, Plaintiff objects to the article’s statement that, “[t]he National Rifle Association’s media arm has dropped … Dan Bongino from its lineup of conservative commentators,” because he, not NRATV, decided to end the employment relationship. Plaintiff claims this misrepresentation imputes to him an “unfitness to perform the duties” of his job as a political commentator and radio host. For those reasons, he charges Defendant with defamation and defamation by implication. The Court addresses each claim in turn.

a) Defamation

[***] Whether a statement is susceptible to defamatory interpretation is a question of law left to the Court. [c] This inquiry turns on the “gist” of the alleged defamatory statement and the context in which that statement was made. [***] But when a communication “could not possibly have a defamatory or harmful effect, the court is justified in dismissing the complaint for failure to state a cause of action.” Rubin v. U.S. News & World Report, Inc., 271 F.3d 1305, 1306 (11th Cir. 2001) (citation omitted).

As an initial matter, at least one Florida court has held “the statement that a person was ‘fired’ from his employment, without more, is not defamatory.” Burnham v. Palm Beach Newspapers, Inc., 21 Med. L. Rptr. 1914 (Fla. 15th Cir. Ct. June 25, 1993). The state court held that an employer’s ability to terminate an employee is “inherent in the employment relationship” and the “exercise of that right does not necessarily impute wrongdoing to the employee.” Id. [c]

Indeed, Defendant cites to a litany of authority—albeit from non-binding jurisdictions—agreeing with the premise that “[t]he mere statement that someone has been terminated from employment is not in and of itself defamatory,” unless “the publication contains an insinuation that the discharge was for some misconduct.” [c]; see also, e.g., Klein v. Victor, 903 F. Supp. 1327, 1335–36 (E.D. Mo. 1995) (“Even assuming that the statement is false, and that plaintiff was not actually terminated, that statement does not necessarily impute a want of knowledge, skill, capacity or fitness to perform, nor does it impute fraud, want of integrity or misconduct …”); Jack’s Cookie Co. v. Brooks, 227 F.2d 935, 937 (4th Cir. 1955) (letter stating that plaintiff was “no longer the sales representative of Jack’s Cookie Company” and that this was “best for the company, its distributors, representatives and customers” was not defamatory as a matter of law because it “could not fairly be interpreted as charging [plaintiff] either with incompetence or dishonesty”).

Seeming to acknowledge that, without more, the mere statement that an individual was terminated does not constitute defamation, Plaintiff makes much ado about the article’s apparent insinuation that Plaintiff was not only fired but fired “for cause.” (See Pl.’s Resp. at 8–9 (citing caselaw specific to statements that individual was fired for cause or other misconduct)). A plain reading of the article, however, renders Plaintiff’s authority inapposite.

Here, even a cursory review reveals that nowhere in the article does it state that Plaintiff was fired—much less that he was fired for cause. The article merely states that NRATV “dropped” Plaintiff from its lineup of conservative commentators. And as Plaintiff concedes, this is in fact true. See Masson v. New Yorker Mag., Inc., 501 U.S. 496, 516 (1991) (explaining that even a flawed assertion of fact is not actionable as long as it is “substantial[ly] tru[e],” because the common law of libel “overlooks minor inaccuracies”). Indeed, the article’s subheading explains that NRATV was “downsizing” and Plaintiff’s show was “a casualty of those plans.” The article even reflects that NRATV made “every effort to retain [Bongino].” Id.^[11] Such reporting is a far cry *1319 from stating that Plaintiff was fired for anything other than corporate downsizing.

[***] In short, even if the Court were to agree with Plaintiff that the “gist” of the article states that he was fired, the Court agrees with the reasoning set forth in the foregoing authority that the mere statement that an individual was terminated, without an insinuation of misconduct, does not constitute defamation. Because no reasonable interpretation of the article could be construed to suggest that Plaintiff was “dropped” for any reason other than fiscal decision-making, Plaintiff fails to establish that the article amounts to defamation.

b) Defamation by Implication

Plaintiff’s alternative claim for defamation by implication fails for the same reasons. Defamation by implication occurs when “the defendant juxtaposes a series of facts so as to imply a defamatory connection between them,” or when the defendant “creates a defamatory implication by omitting facts.” [c] In this sense, defamation by implication imposes “liability upon the defendant who has the details right but the ‘gist’ wrong.” [c] That said, “[a]ll of the protections of defamation law that are afforded to the media and private defendants” also apply “to the tort of defamation by implication.” [c] This includes true statements and statements of pure opinions, which are protected by the First Amendment. [c] (“Under Florida law, a defendant publishes ‘pure opinion’ when the defendant makes a comment or opinion based on facts which are set forth in the publication….”).

In support of his defamation by implication allegation, Plaintiff claims the article implies that NRATV dropped him because of his “quick temper,” “brash style,” and because he was an “outspoken defender of President Trump.” But the article does not juxtapose those snippets to imply they are *1320 the reason that NRATV dropped Bongino. Nevertheless, such statements are, at the very least, protected statements of pure opinion.

For starters, the article states, “Bongino is known as an outspoken defender of President Trump, and recently released a book alleging ‘an attempt to sabotage’ the president….” The Complaint also describes Plaintiff as “an outspoken supporter of President Donald Trump. In 2018, Plaintiff published … Spygate: The Attempted Sabotage of Donald J. Trump.” Consequentially, the statement is true and thus privileged by the First Amendment. [c] Even still, the article does not juxtapose this soundbite with Plaintiff’s departure from NRATV. In fact, the article suggests NRATV embraced the “style of commentary that dovetails with contemporary conservative rhetoric,” thereby suggesting Plaintiff’s support for Trump was valuable to the station.

Next is the article’s reference to Plaintiff’s “quick temper,” and “brash style.” Those comments both opine on a “2016 interview with Politico reporter Marc Caputo, which ended with Bongino screaming obscenities at the journalist before hanging up.” These comments, however unflattering, are “pure opinion” and thus protected by the First Amendment. [cc] (explaining that statements of opinion cannot support claim for defamation by implication).

In sum, dismissal is proper because “no construction” of the article will support Plaintiff’s defamation charge. [c] And notably, the Eleventh Circuit acknowledges a “powerful interest in ensuring that free speech is not unduly burdened by the necessity of defending against expensive yet groundless litigation.” Michel, 816 F.3d at 702. [***]

C. Florida’s Anti-SLAPP statute

Florida’s anti-SLAPP statute prohibits a person from filing a suit that is (a) “without merit” and (b) “primarily” because the person against whom the suit was filed “exercised the constitutional right of free speech in connection with a public issue….” Fla. Stat. § 768.295(3). The Florida legislature enacted the statute to deter such suits, finding they are “inconsistent” with the constitutional right of free speech—the preservation of which is a “fundamental state policy[.]” Id. § 768.295(1). Presumably for that reason, the statute awards a defendant fees and costs if a plaintiff files a forbidden suit. Id. § 768.295(4).

*1322 Defendant contends this statute entitles it to recover its fees and costs because Plaintiff filed this lawsuit (a) “without merit” and (b) because Defendant “exercised the constitutional right of free speech in connection with a public issue.” Plaintiff responds by arguing that his suit did not violate the statute because Defendant did not “exercise the constitutional right to free speech on any issue” and contending that this statute does not apply in a federal court anyway.

1. Whether Plaintiff’s suit violated Florida’s anti-SLAPP statute

Florida’s anti-SLAPP statute prohibits a person from filing a cause of action that is (a) “without merit” and (b) “primarily” because the person against whom the suit was filed exercised the constitutional right of free speech in connection with a public issue. Fla. Stat. § 768.295(3). As used in that provision, “free speech in connection with a public issue” includes any written statement protected under applicable law and made in connection with a news report. Fla. Stat. § 768.295(2)(a).

The Eleventh Circuit recently affirmed an order awarding fees and costs under this statute in a case akin, in both posture and substance, to this one. See Parekh v. CBS, 820 Fed.Appx. 827 (11th Cir. 2020). The media defendant in Parekh filed one motion to dismiss the plaintiff’s defamation claim and to recover fees and costs under Florida’s anti-SLAPP statute. Id. at 832. The Eleventh Circuit affirmed the complaint’s dismissal because the disputed statement, even if false, “[was] not actionable because it [was] not defamatory.” Id. at 834. For that reason, the suit was filed “without merit.” Id. at 835–36. The suit also “arose out of the defendants’ protected First Amendment activity—publishing a news report on a matter of public concern.” Id. The Eleventh Circuit thus concluded that the statute’s plain language supported the district court’s decision to grant fees and costs. Id.

Because Plaintiff’s suit fails to state a claim for defamation, it was without merit under Florida Statute § 768.295(3). And because Plaintiff’s suit “arose out of” Defendant’s news report, the second element—free speech in connection with a public issue—is also satisfied. See Fla. Stat. § 768.295(2)(a); Parekh, 820 Fed.Appx. at 831–32. The statute therefore entitles Defendant to recoup reasonable attorneys’ fees and costs.

2. Whether Florida’s anti-SLAPP statute applies in Federal Court

The Parekh court declined to address whether Florida’s anti-SLAPP statute applies in federal court because the appellant raised the argument for the first time on appeal. Parekh, 820 Fed.Appx. at 836. Plaintiff, however, raises the argument here. That brings the Court to the second question regarding Florida’s anti-SLAPP statute: whether its fee-shifting provision applies in a federal court exercising diversity jurisdiction. As far as the Court is aware, the Eleventh Circuit has not addressed this question. So, this is a matter of first impression.

In such a case, a federal court will not apply a state statute that “answers the same question” as a Federal Rule of Civil Procedure. See Carbone v. Cable News Network, 910 F.3d 1345, 1349 (11th Cir. 2018) (addressing whether Georgia’s anti-SLAPP statute applies in federal court) (quotation and citation omitted). The Eleventh, Fifth, D.C., and now Second Circuits agree: certain states’ iterations of the anti-SLAPP statute “answer the same question” as Federal Rules of Civil Procedure 8, 12, and 56. See Carbone, 910 F.3d at 1357 (11th Cir. 2018) (Georgia); *1323 La Liberte v. Reid, 966 F.3d 79, 85–86 (2d Cir. 2020) (California); Klocke v. Watson, 936 F.3d 240, 245 (5th Cir. 2019) (Texas); Abbas v. Foreign Pol’y Grp., LLC., 783 F.3d 1328, 1334 (D.C. Cir. 2015) (D.C.).

Those statutes conflict with the Federal Rules of Civil Procedure because they raise the bar for a plaintiff to overcome a pretrial dismissal motion. See Carbone, 910 F.3d at 1350, 1356 (addressing Georgia’s anti-SLAPP statute, which requires the “plaintiff to establish ‘a probability’ that he ‘will prevail on the claim’ asserted in the complaint”); La Liberte, 966 F.3d at 87 (addressing California’s anti-SLAPP statute, which requires “dismissal unless the plaintiff can ‘establish a probability that he or she will prevail on the claim’ ”); Klocke, 936 F.3d at 246 (addressing Texas’s anti-SLAPP statute, which requires “ ‘clear and specific evidence’ that a plaintiff can meet each element of his claim”); Abbas, 783 F.3d at 1333 (addressing D.C.’s anti-SLAPP statute, which requires dismissal when the “plaintiff does not have a likelihood of success on the merits”).

Not so for Florida’s anti-SLAPP statute. See Fla. Stat. § 768.295(4). Instead, it fuses with Rules 8, 12, and 56 by entitling the prevailing party to fees and costs if, after invoking the devices set forth by those rules, a court finds an action is “without merit” and thus prohibited. [***] At bottom, Florida’s statute is a garden variety fee shifting provision, which the Florida legislature enacted to accomplish a “fundamental state policy”—deterring SLAPP suits. Fla. Stat. § 768.295(1). The result is a statute that does not “answer the same question” as the Federal Rules. Shady Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393, 401 (2010).

This conclusion is in line with decades of Eleventh Circuit precedent, which find that state-law statutes and claims for attorneys’ fees and costs “unequivocally” apply in a federal court exercising diversity jurisdiction. [***] In sum, the Court finds that Florida’s anti-SLAPP fee-shifting provision does not conflict with any Federal Rules of Civil Procedure and thus may apply in a federal court exercising diversity jurisdiction. [***]

Note 1. What does the court mean by “defamation by implication”? What is Bongino’s argument about how he was defamed?

Note 2. What does the court mean when it refers to “pure opinions”? Can “pure opinions” be defamatory, according to Bongino?

Note 3. Why did the court reject the reasoning in Bongino’s claim that the statements in question had defamed him?

Note 4. Why does the court believe that dismissal is normatively important in this case?

Note 5. Articulate for yourself the purpose of anti-SLAPP statutes. Does it seem to you that the anti-SLAPP statute was properly applied in this case? In future cases, what facts would tend to persuade you to place limits on private persons’ reputational interests?

Note 6. In the present era, defamation lawsuits have taken on an increasingly political dimension. In an era of misinformation and disinformation, some media outlets and platforms have permitted or contributed to the circulation of outright lies about issues of momentous public importance such as COVID-19 vaccine safety and the 2020 Presidential election. A number of lawsuits have been filed by the manufacturer of voting machines, Dominion Voting Systems, which was routinely (and falsely) maligned as having interfered with or tainted the election. An early assessment of those cases seems positive for Dominion Voting. (See e.g. https://www.latimes.com/entertainment-arts/business/story/2022-07-05/fox-news-defamation-election-lawsuit-dan-webb-dominion) These lawsuits hint at the possibility that courts could play a role in stemming disinformation. What sorts of mis- and disinformation have you observed in circulation? To what extent does existing case law go far enough, in your view, in balancing speech and reputational interests? Should the politicization of defamation law be recognized and reflected in some way in judicial or legislative action?