Back in May, the CMLP joined Public Citizen, the Center for Democracy and Technology, and the Electronic Frontier Foundation in submitting an amicus curiae brief in support of Yahoo!'s petition for rehearing in the Barnes v. Yahoo! case.  On Monday, we got some good news when the Ninth Circuit Court of Appeals issued an order amending its previous decision.

The amended opinion does not alter the court's previous conclusion that plaintiff Cecilia Barnes may pursue a contract-like claim against Yahoo! based on an employee's promise to take down a false website profile, notwithstanding the immunity for interactive computer services in section 230 of the Communications Decency Act.  This is no surprise because Yahoo! didn't ask the court to revisit that holding. Rather, the amended opinion makes two important changes requested by both Yahoo! and amici in their briefs.

First, the Ninth Circuit deleted a section of its previous opinion stating that a defendant like Yahoo! may not raise a Section 230 defense on a motion to dismiss.  While this sounds highly technical, it's critically important, and we are glad to see the Ninth Circuit change course on this point.  A motion to dismiss is ordinarily the best opportunity for a defendant to get a weak lawsuit thrown out before going through the expensive and time-consuming process of discovery. In Section 230 cases, the availability of this quick "out" helps website operators and other online intermediaries avoid protracted legal battles and furthers Congress' purpose of encouraging the lively exchange of views and information online.  See Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997).  The deletion of this section of the previous opinion was especially appropriate because the parties had not briefed the issue on appeal, and this dicta was inconsistent with Ninth Circuit decisions in other areas of law.

Second, the Ninth Circuit cleared up a potential misunderstanding in its earlier opinion -- an ambiguous sentence and footnote that could be read as saying that Section 230 only preempts state law and not any federal law, a sloppy mistake that Eric Goldman originally pointed out. The court added a new footnote to deal with this problem:

We limit our restatement of section 230(c)(1) to state law claims because we deal in this case with state law claims only. We have held that the Amendment’s protection also extends to federal law causes of action, see, e.g., Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F.3d 1157 (9th Cir. 2008) (en banc) (applying the Amendment to a cause of action under the Fair Housing Act, 42 U.S.C. § 3601 et seq.). Because no federal law cause of action is present in this case, we need not decide how or whether our discussion of section 230(c)(1) would change in the face of such a federal claim.

This is a helpful clarification and one that is consistent with the plain language of the statute and case law from the Ninth Circuit and elsewhere. Still, as Eric Goldman notes in a recent post, the last sentence continues to suggest an unnecessary distinction between state and federal law claims when "everyone knows that the 230(c)(1) analysis doesn't change one bit between federal and state law claims."

In its order amending the opinion, the Ninth Circuit also denied Yahoo!'s and Barnes' petitions for rehearing.  Again, this is not a big surprise given that the court addressed all of Yahoo!'s concerns in its amendments.  With these changes, the case appears set to continue in the district court. We'll be monitoring developments through our database entry, Barnes v. Yahoo!. 

Thanks again to Paul Levy of Public Citizen for putting together the amicus coalition and doing a great job on the brief.