Yesterday, Yahoo! filed a petition for rehearing in Barnes v. Yahoo!, a case in which the Ninth Circuit recently held that Cecilia Barnes could pursue a promissory estoppel claim against Yahoo! based on an employee's promise to take down a false profile, notwithstanding the immunity for interactive computer services in section 230 of the Communications Decency Act. (See posts by Eric Goldman, Marc Randazza, and Concurring Opinions for details on the decision.) 

Yahoo!'s petition doesn't seek reconsideration of the main substantive holding on promissory estoppel and Section 230; rather, it asks the Ninth Circuit to revisit dicta in the opinion indicating that, as an affirmative defense, Section 230 cannot be raised on a motion to dismiss. The court said that, instead, an interactive computer service wrongly sued for user-submitted content despite the protection in Section 230 should file an answer and a "motion for judgment on the pleadings."

This issue looks technical, but the Ninth Circuit's dicta, if left intact, could significantly increase the burden imposed on Internet intermediaries sued for publishing the statements of their users, at least in many federal courts in the western United States. Paul Levy of Public Citizen explained it well in a post published shortly after the decision:

 This difference could be quite significant, because the filing of an answer triggers a series of deadlines that impose various obligations on the defendant to confer with the plaintiff and agree on discovery procedures, after which discovery can begin. Because Section 230 provides interactive service providers with an immunity from the burdens of litigation, and not just an immunity from being held liable, it has been important for defendants to be able to raise their immunity on an immediate motion. As we have discussed previously here, a robust section 230 defense plays a vital role in protecting consumers’ rights of comment because many companies try to suppress speech not by suing the speaker but by threatening to impose the costs of litigation on ISP’s unless they remove offending comments.

Besides being troubling from a policy perspective, the Ninth Circuit's dicta is inconsistent with its own precedent in other contexts saying that a defendant may invoke an affirmative defense -- like the statute of limitations or res judicata -- on a motion to dismiss, so long as the elements of the defense are apparent from the face of the complaint.  Yahoo!'s petition does a great job explaining this, as well as pointing out that requiring defendants with facially sufficient Section 230 defenses to take further procedural steps would serve no practical purpose.

Concerned about the problems this dicta might cause, CMLP joined Public Citizen, the Center for Democracy and Technology, and the Electronic Frontier Foundation in submitting an amicus brief in support of Yahoo!'s petition. The brief analyzes previous case law on the procedural point and discusses the practical impact that the court's dicta might have on online expression.

In addition, the amicus brief asks the Ninth Circuit to revisit another aspect of its opinion -- an ambiguous sentence and footnote that could be read as saying that Section 230 only preempts state law and not any federal law, as Eric Goldman originally pointed out. This implication, which we don't think the court intended, is plainly inconsistent with the language of the statute when read as a whole, as well as the Ninth Circuit's Roommates decision, which held that Section 230 preempted Federal Fair Housing Act claims based on the open-ended "additional comments" submitted by Roommates.com users.  521 F.3d 1157, 1173-75 (9th Cir. 2008) (en banc); accord Chicago Lawyers' Comm. for Civil Rights Under Law v. Craigslist, 519 F.3d 666, 671 (7th Cir. 2008). 

Many thanks to Paul Levy for putting the coalition together and doing a superb job on the brief (then again, I expect nothing less from a fellow graduate of Reed College ;-). He's got additional thoughts on the case over on the CL&P Blog.