261 F.Supp.2d 532
United States District Court,
E.D.
Virginia,
Alexandria
Division.
Saad
NOAH, Plaintiff,
v.
AOL TIME WARNER INC. and
America Online, Inc., Defendants.
No.
CIV.A. 02-1316-A.
May
15, 2003.
MEMORANDUM
OPINION
ELLIS, District Judge.
Plaintiff, on behalf of himself and a
class of those similarly situated, sues his
Internet service provider (ISP) for
damages and injunctive relief, claiming that the
ISP wrongfully refused to prevent
participants in an online chat room from posting
or submitting harassing comments that
blasphemed and defamed plaintiff's Islamic
religion and his co-religionists. Specifically, plaintiff claims his ISP's
failure
to prevent chat room participants from
using the ISP's chat room to publish the
harassing and defamatory comments
constitutes a breach of the ISP's customer
agreement with plaintiff and a
violation of Title II of the Civil Rights Act of
1964, 42 U.S.C. <section> 2000a
et seq.
At issue on a threshold dismissal motion are
(i) the now familiar and
well-litigated question whether a claim, like plaintiff's,
which seeks to hold an ISP civilly
liable as a publisher of third party statements
is barred by the immunity granted
ISP's by the Communications Decency Act of 1996,
47 U.S.C. <section> 230,
(ii) the less familiar, indeed novel
question whether an online chat room is a
"place of public
accommodation" under Title II, and
(iii) the rather prosaic question
whether plaintiff's breach of contract claim is
barred by the very contract on which
he relies, namely the Member Agreement
contract.
For the reasons that follow,
plaintiff's claims do not survive threshold inspection
and must therefore be dismissed.
I. [FN1]
FN1. The facts recited here are
derived from the complaint and taken as true for
purposes of resolving the
dismissal motion at bar. See Harrison
v. Westinghouse
Savannah River Co., 176 F.3d 776,
783 (4th Cir.1999).
Plaintiff Saad Noah, a Muslim, is a resident of Illinois and was a
subscriber of
defendant America Online, Inc.
("AOL")'s Internet service until he cancelled the
service in July of 2000. AOL, which is located in the Eastern
District of Virginia,
is, according to the complaint, the
world's largest Internet service provider, with
more than 30 million subscribers, or
"members," worldwide. Defendant AOL Time Warner
Inc. is the parent company of AOL.
Among the many services AOL provides
its members are what are popularly known as
"chat rooms." These occur where, as AOL does here, an ISP
allows its participants
to use its facilities to engage in
real-time electronic conversations.
Chat room
participants type in their comments or
observations, which are then read by other
chat room participants, who may then
type in their responses. Conversations
in a
chat room unfold in real time; the submitted comments appear transiently
on
participants' screens and then scroll
off the screen as the conversation progresses.
AOL chat rooms are typically set up
for the discussion of a particular topic or
area of interest, and any AOL member who wishes to join a
conversation in a
public chat room may do so.
Two AOL chat rooms are the focus of
plaintiff's claims: the "Beliefs
Islam" chat
room and the "Koran" chat
room. It is in these chat rooms that
plaintiff alleges
that he and other Muslims have been
harassed, insulted, threatened, ridiculed and
slandered by other AOL members due to
their religious beliefs. The complaint lists
dozens of harassing statements made by
other AOL members in these chat rooms on
specified dates, all of which
plaintiff alleges he brought to AOL's attention
together with requests that AOL take
action to enforce its member guidelines and
halt promulgation of the harassing
statements. The statements span a
period of two
and one-half years, from January 10,
1998 to July 1, 2000, and are attributable to
various AOL chat room participants
only by virtue of a screen name. A
representative sample of the reported
offensive comments follows:
(i) On January 10, 1998 the AOL
Member with the screen name "Aristotlee" wrote
"islam is meaniglessssss thought,"
"allahsdick cut offfffffff," "dumballah
bastard," "allah
assssshole," "allajs dick is in holy dick place hey." "FUCK
ALLAH," etc.
(ii) On April 26, 1998,
"Twotoneleg" wrote "I HATE MUSLIMS," "THE KORAN
SUCKS,"
etc., and "BOSS30269" wrote
"I LIKE SHOOTING MUSLIMS," "I WILL BOMB THE MIDDLE
EAST," and "FUCK
ISLAM."
(iii) On November 4, 1998,
"Hefedehefe" wrote "SMELLY TOWEL HEADS" and
"MUSLIM
TOWEL HEADS."
(iv) On July 11, 1999,
"Jzingher" wrote "The Koran and Islam are creations of Satan
to distract people from the true
faith which is Judaism. Mohammed was
merely a
huckster who found a simple people he
could manipulate."
(v) On July 18, 1999 "SARGON
I" wrote "Qura'n lies about everything-a Satan made
verses of darkness and
destruction!", "Mohammed was no shit, only a killer, thief,
a liar and a adulterer!", and
"BYE STUPID MUSLIMS....ALL GO TO HELL."
(vi) On July 1, 2000,
"DXfina3000 wrote "muslims suck," "they suck ass,"
"korans is
use to wipe ass," "fuckin
muslins," and "well allah can suck my dick you peice of
ass."
Plaintiff understandably complained
about these offensive, obnoxious, and indecent
statements, initially through the
channels provided by AOL for such complaints and
eventually through emails sent
directly to AOL's CEO Steve Case. Plaintiff alleges
that although he reported every one of
the alleged violations to AOL, AOL refused to
exercise its power to eliminate the
harassment in the "Beliefs Islam" and "Koran"
chat rooms. Moreover, plaintiff contends that AOL gave a "green
light" to the
harassment of Muslims in these forums,
claiming that such harassment was not
tolerated in chat rooms dealing with
other subjects and faiths. In
protest,
plaintiff cancelled his AOL account in
July 2000. Plaintiff further alleges
that
other Muslim members of AOL have also
complained to AOL about similar harassing
statements.
The relationship between AOL and each
of its subscribing members is governed by the
Terms of Service ("TOS"),
which include a Member Agreement and the Community
Guidelines. The Member Agreement is a "legal document that details [a
member's]
rights and obligations as an AOL
member," and it requires, inter alia, that AOL
members adhere to AOL's standards for
online speech, as set forth in the
Community Guidelines. These Guidelines state, in pertinent part,
that
... You will be considered in
violation of the Terms of Service if you (or others
using your account) do any of the
following: ....
* Harass, threaten, embarrass, or do
anything else to another member that is
unwanted. This means: ... don't
attack their race, heritage, etc....
* Transmit or facilitate distribution
of content that is harmful, abusive, racially
or ethnically offensive, vulgar,
sexually explicit, or in a reasonable person's
view, objectionable. Community standards may vary, but there is
no place on the
service where hate speech is
tolerated.
* Disrupt the flow of chat in chat
rooms with vulgar language, abusiveness, ...
The Member Agreement states that AOL
has the right to enforce these Community
Guidelines "in its sole
discretion." In response to a
violation, "AOL may take
action against your account,"
ranging from "issuance of a warning about a violation
to termination of your
account." AOL's Community Action
Team is responsible for
enforcing the content and conduct
standards and members are encouraged to notify AOL
of violations they observe
online. Importantly, however, the
Member Agreement
states that AOL members "... also
understand and agree that the AOL Community
Guidelines and the AOL Privacy Policy,
including AOL's enforcement of those
policies, are not intended to confer,
and do not confer, any rights or remedies upon
any person."
Plaintiff filed this pro se action on
September 3, 2002, claiming that AOL's
alleged refusal to intervene to stop
the harassing statements and enforce the TOS
constitutes (i) discrimination in a place of public
accommodation, in violation of
Title II of the Civil Rights Act of
1964, 42 U.S.C. <section> 2000a, and (ii) a
breach of AOL's TOS and the Member
Agreement. The action purports to be a
class
action, brought on behalf of plaintiff
and all others similarly situated.
In addition to these claims raised in
the complaint, plaintiff seems to assert a
third claim against defendants in his
response to the motion to dismiss, where he
alleges new facts concerning several
incidents involving disciplinary actions taken
by AOL against plaintiff and other,
unnamed Muslim AOL members. Although the nature
of the incidents is not entirely
clear, plaintiff alleges that AOL discriminated
against plaintiff and other Muslim AOL
members by issuing false warnings against
them and terminating their accounts in
an effort to silence their pro-Islam speech.
Plaintiff alleges his own AOL account
was briefly terminated by AOL and subsequently
reinstated, but his past messages were
not restored. Relying on these
incidents,
plaintiff belatedly claims a violation
of his First Amendment rights and of the
First Amendment rights of similarly
situated Muslims. Although not properly
pled in
the complaint, given plaintiff's pro
se status this claim will nonetheless be
considered on this motion to dismiss
as if it had been raised in the original
complaint. [FN2]
FN2. While it is true, as courts
have uniformly noted, that pro se plaintiffs'
pleadings should be charitably
read, it is not and should not be the task of
courts to sift through the facts
alleged in a complaint to advise pro se
plaintiffs of what claims they
might have. See Weller v. Dep't of Soc.
Serv.
for the City of Baltimore, 901
F.2d 387, 391 (4th Cir.1990) (noting that "the
'special judicial solicitude' with
which a district court should view such pro
se complaints does not transform
the court into an advocate").
Defendants AOL and AOL Time Warner filed a motion to dismiss
plaintiff's claims on
January 22, 2003. Nearly a month later, two days before the
motion was noticed
for a hearing, plaintiff belatedly
requested and ultimately received, as a matter of
grace, an extension of time until
March 7, 2003, in which to file his response.
See
Noah v. AOL Time Warner, Inc., Civil
Action No. 02-1316-A (E.D.Va. February 20,
2003) (Order). Plaintiff missed this deadline as well,
filing his response on March
10, 2003. Thereafter, defendants filed their reply on March 17, 2003. Because the
issues and governing authorities are
adequately set forth in the pleadings, oral
argument is unnecessary and may be
dispensed with, and this motion is appropriately
disposed of on the papers.
II.
[1] As an initial matter, it must be
noted that plaintiff, as a pro se litigant,
may not pursue his claims as a class
action for the obvious and sensible reason that
a pro se plaintiff is simply not
equipped by reason of training or experience to
take on the responsibility of litigating the claims of
others. As the Fourth
Circuit noted in this regard,
"the competence of a layman representing himself" is
"clearly too limited" to
allow him to "risk the rights of others" by representing a
class of plaintiffs. Oxendine v. Williams, 509 F.2d 1405, 1407
(4th Cir.1975).
Accordingly, plaintiff cannot assert
his claims as a class action representing all
similarly situated Muslim AOL members.
III.
[2] Next, it is appropriate to
address whether AOL's parent, AOL Time Warner, is a
proper defendant in this case. That it is not a proper party is manifestly
apparent
from the complaint itself. There is no reference whatever in the
complaint to any
acts or conduct by AOL Time Warner
alleged to be violative of any legal duty owed to
plaintiff. Nor from the facts alleged does there appear to be any plausible
basis
for plaintiff to claim that AOL Time
Warner is liable. See supra n. 2. In
these
circumstances, therefore, plaintiff
has not stated a claim against AOL Time Warner
and AOL Time Warner must be dismissed
as a defendant in this case.
IV.
Plaintiff's Title II claim fails for
two alternate and independent reasons.
First,
plaintiff's claim against AOL is
barred because of the immunity granted AOL, as an
interactive computer service provider,
by the Communications Decency Act of 1996, 47
U.S.C. <section> 230. Second, plaintiff's claim fails because a
chat room is not a
"place of public
accommodation" as defined by Title II, 42 U.S.C. <section> 2000a(b)
.
Each dismissal ground is separately addressed.
A.
[3] The question presented at the
threshold is whether AOL has been granted
statutory immunity against plaintiff's
Title II claim. Section 230 states, in
relevant part, 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.
<section> 230(c)(1). [FN3] Thus, the
"plain language" of
<section> 230 "creates a federal immunity to any cause of action
that would make service providers
liable for information originating with a
third-party user of the service." Zeran v. America Online, Inc., 129 F.3d 327,
330
(4th Cir.1997), cert denied, 524 U.S. 937, 118 S.Ct. 2341, 141 L.Ed.2d
712
(1998). [FN4] In other words, " <section> 230
precludes courts from entertaining
claims that would place a computer
service provider in a publisher's role," and
"lawsuits seeking to hold a
service provider liable for its exercise of a
publisher's traditional editorial
functions--such as deciding whether to publish,
withdraw, postpone, or alter
content--are barred." Id. By
specific statutory
exclusion, certain causes of action
are not barred by <section> 230;
namely, causes
of action based on (i) federal
criminal statutes, (ii) intellectual property law,
(iii) state law "that is
consistent with this section," and (iv) the Electronic
Communications Privacy Act of
1986. 47 U.S.C.
<section><section> 230(e)(1)-(4).
FN3. Section 230 defines an "interactive computer
service" as "any information
service, system, or access
software provider that provides or enables computer
access to multiple users to a
computer server, including specifically a service
or system that provides access to
the Internet ..." 47 U.S.C. <section>
230(f)(2).
FN4. Zeran 's interpretation of
<section> 230 has been widely followed by other
courts. See, e.g.,
Green v. America Online, 318 F.3d 465, 471 (3d Cir.2003);
Ben Ezra, Weinstein, & Co. v.
America Online, Inc., 206 F.3d 980, 986 (10th
Cir.2000); Blumenthal v. Drudge, 992 F.Supp. 44
(D.D.C.1998).
Congress's purpose in providing such
immunity is evident. As the Fourth
Circuit
noted in Zeran, ISPs such as AOL have
millions of users who generate a "staggering"
amount of content or information; thus it is "impossible for service
providers to
screen each of their millions of
postings for possible problems."
Id. at 331. If
ISPs faced tort liability for
information posted through their services by third
parties, they might be forced to
restrict access to their public forums.
Id. Such a
result would be counter to the
statutory purpose of ensuring that the Internet
remain a "forum for true
diversity of political discourse, unique opportunities for
cultural development, and myriad
avenues for intellectual activity."
Id. at 330;
47 U.S.C. <section>
230(a)(3). Thus, while parties that
post information in
Internet forums remain accountable
under all applicable federal and state laws, they
cannot be reached indirectly through
the imposition of liability on the ISPs that
serve as intermediaries in posting the
information. See Zeran, 129 F.3d at
330.
Here, there is no question that
<section> 230 bars plaintiff's Title II claim.
First, the parties agree, as they
must, that AOL is an "interactive computer service
provider" as defined by
<section> 230. AOL is clearly an
"information service" that
"provides ... access by multiple users to a computer
server" and "provides access to
the Internet." 42 U.S.C. <section> 230(f)(2). Second, all of the reported chat
room statements are "information
provided by another information content provider."
42 U.S.C. 230(c)(1). Individual AOL members, not AOL itself,
created the content of
the reported chat room
statements. See, e.g., Green v. America
Online, 318 F.3d
465, 470 (3d Cir.2003) (holding that
chat room messages written by an AOL member are
information "provided by another
information content provider").
Finally, it is
also clear that plaintiff's Title II
claim "treats" AOL as the "publisher" of
information provided by another.
[4] Yet, relying on the fact that his
claim is brought under Title II, not state
defamation or negligence law,
plaintiff contends that the claim treats AOL as the
owner of a place of public accommodation,
not a "publisher." This
argument, though
novel, is unpersuasive. An examination of the injury claimed by
plaintiff and the
remedy he seeks clearly indicates that
his Title II claim seeks to "place" AOL "in a
publisher's role," in violation
of <section> 230. Zeran, 129 F.3d at 330. Thus,
plaintiff contends that AOL is liable
for its refusal to intervene and stop the
allegedly harassing statements, and
requests an injunction requiring AOL to adopt
"affirmative measures" to
stop such harassment, presumably by screening out the
offensive statements and banning the
members responsible for them.
These
allegations make clear that plaintiff
seeks to hold AOL liable for its failure to
exercise "a publisher's
traditional editorial functions--such as deciding whether to
publish, withdraw, postpone or alter
content." Id. As such, they are
barred by
<section> 230, for as the Fourth
Circuit made clear in Zeran, all suits seeking to
place a service provider in a
publisher's role in this manner are barred under
<section> 230. Id.;
see also Green, 318 F.3d at 470 (holding that "holding AOL
liable for its alleged negligent failure to properly police its network
for content
transmitted by its users ... would
'treat' AOL 'as the publisher or speaker' of that
content").
Plaintiff's further attempts to argue
that his Title II claim is beyond the reach
of <section> 230 are similarly
unavailing. First, plaintiff argues
that <section>
230 immunity does not apply to claims
brought under federal civil rights statutes.
Yet, this argument runs counter to
<section> 230's expansive language, which plainly
reaches such claims. Significantly, this expansive language
grants a broad immunity
limited only by specific statutory
exclusions, none of which is applicable here.
Only four classes of claims are
excluded: claims involving a
"Federal criminal
statute," "any law
pertaining to intellectual property," "any State law that is
consistent with this section,"
and "the Electronic Communications Privacy Act." 47
U.S.C. <section> 230(e)(1)-(4).
Plaintiff's claim fits into none of these
exclusions.
Nor can it be plausibly argued that
<section> 230 is limited to immunity from state
law claims for negligence or
defamation. Such a limitation is flatly
contradicted
by <section> 230's exclusion of
some specific federal claims. Those
exclusions
would be superfluous were
<section> 230 immunity applicable only to certain state
claims. Moreover, the exclusion of federal criminal claims, but not
federal civil
rights claims, clearly indicates,
under the canon of expressio unius est exclusio
alterius, that Congress did not intend
to place federal civil rights claims outside
the scope of <section> 230
immunity. In short, Congress's decision
to exclude
certain claims but not federal civil
rights claims as a group, or Title II
specifically, must be respected. See TRW, Inc. v. Andrews, 534 U.S. 19, 28,
122
S.Ct. 441, 151 L.Ed.2d 339 (2001)
(noting that "[w]here Congress explicitly
enumerates certain exceptions to a
general prohibition, additional exceptions are
not to be implied, in the absence of
evidence of a contrary legislative intent").
[FN5]
FN5. Plaintiff argues that
providing ISPs immunity against federal civil rights
is bad policy. Yet, it is not the role of the federal
courts to second-guess a
clearly stated Congressional
policy decision. See Blumenthal, 992
F.Supp. at
51-52 (determining the scope of
immunity under <section> 230 according to the
statute as enacted, and rejecting
an individualized policy argument).
Second, plaintiff argues,
unpersuasively, that <section> 230 does not apply to
claims for injunctive relief, relying
on Mainstream Loudoun v. Board of Trustees of
the Loudoun Cty. Library, 2 F.Supp.2d
783, 790 (E.D.Va.1998). This reliance
is
misplaced. Loudoun held that "the 'tort-based' immunity to 'civil
liability' "
described by <section> 230 did
not apply to the action in that case for "declaratory
and injunctive relief." Id. (citing Zeran, 129 F.3d at 330). Yet, Loudoun is not
only readily distinguishable from the
instant case, [FN6] its continuing authority
is questionable. Subsequent courts have not followed Loudoun
in limiting
<section> 230 immunity to claims
for liability only, but have found <section> 230
applicable to claims seeking
injunctive relief as well. See Ben
Ezra, 206 F.3d at
983-986 (applying <section> 230
to claims for injunctive relief); Smith
v.
Intercosmos Media Group, Inc., 2002 WL
31844907 (E.D.La. Dec.17, 2002) (holding that
<section> 230 provides immunity
from claims for injunctive relief);
Kathleen R.,
104 Cal.Rptr.2d at 781 (same). Indeed, given that the purpose of
<section> 230 is
to shield service providers from legal
responsibility for the statements of third
parties, <section> 230 should
not be read to permit claims that request only
injunctive relief. After all, in some
circumstances injunctive relief will be at
least as burdensome to the service
provider as damages, and is typically more
intrusive.
FN6. In Loudoun, the plaintiffs
brought suit against the library's board,
alleging that the library's use of
site-blocking software to prevent
accessibility to adult web sites
violated their First Amendment rights. Id. at
787. Thus, Loudoun presented a situation where a government entity
claimed
immunity against a constitutional
challenge to its regulation of Internet
access. As noted in Loudoun, <section> 230 was enacted to keep the
vibrant
Internet market "unfettered
by federal or state regulation," not to insulate
government regulation of Internet
speech from constitutional challenges, and
thus immunity in such a situation
was singularly inappropriate. Id. at
789-90,
47 U.S.C. <section>
230(b)(2). Here, unlike Loudoun, the plaintiff seeks to hold
a service provider responsible for
the statements of its members, a situation
that fits within the core intended
purpose of <section> 230 immunity.
Furthermore, Loudoun involved a
different provision of <section> 230 from the
one at issue here, namely
<section> 230(c)(2), which provides that no service
provider "shall be held
liable" for actions taken in good faith to restrict
access to obscene or otherwise
objectionable material. 47 U.S.C.
<section>
230(c)(2). This liability language could be construed
as not applicable to
claims for an injunction. By contrast, <section> 230(c)(1),
which is applicable
here, contains no such liability
language, instead simply stating that "[n]o
provider ... of an interactive
computer service shall be treated as the
publisher" of third-party
content. 47 U.S.C. <section>
230(c)(1); see Kathleen
R. v. City of Livermore, 87
Cal.App.4th 684, 104 Cal.Rptr.2d 772 (2001)
(distinguishing Loudoun on these
grounds).
In sum, <section> 230 bars
plaintiff's claim under Title II because it seeks to
treat AOL as the publisher of the
allegedly harassing statements of other AOL
members. To be sure, the offensive statements plaintiff complains of are a
far cry
from the "diversity of political
discourse, unique opportunities for cultural
development, and myriad avenues for intellectual
activity" that <section> 230 is
intended to promote and protect. 47 U.S.C. <section> 230(a). Indeed, the
statements reported by plaintiff
suggest a darker side of what has been called the
"robust nature of Internet
communication." Zeran, 129 F.3d at
330. Nonetheless,
<section> 230 reflects
Congress's judgment that imposing liability on service
providers for the harmful speech of others
would likely do more harm than good, by
exposing service providers to
unmanageable liability and potentially leading to the
closure or restriction of such open
forums as AOL's chat rooms. Id. at
331.
Accordingly, under <section>
230, plaintiff may not seek recourse against AOL as
publisher of the offending
statements; instead, plaintiff must
pursue his rights,
if any, against the offending AOL
members themselves.