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Klayman v. Mark Zuckerberg & Facebook, Inc.

United States Court of Appeals, District of Columbia Circuit

June 13, 2014

LARRY ELLIOTT KLAYMAN, APPELLANT
v.
MARK ZUCKERBERG AND FACEBOOK, INC., APPELLEES

Argued, February 25, 2014

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.

OPINION

Page 1355

Millett, Circuit Judge

Three years ago, plaintiff-appellant Larry Klayman encountered a page on Facebook's social networking website entitled " Third Palestinian 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

Page 1356

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 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. ยง 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 ...


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