Batzel v. Smith, No. 01-56380.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Berzon
• Citation: 333 F.3d 1018
• Parties: Ellen L. BATZEL, a citizen of the State of California, Plaintiff-Appellee, v. Robert SMITH, a citizen of the State of North Carolina; Netherlands Museums Association, an entity of unknown form; Mosler, Inc., a Delaware corporation with its principal place of business in Ohio, Defendants, and Ton Cremers, a citizen or subject of the Netherlands, Defendant-Appellant. Ellen L. Batzel, a citizen of the State of California, Plaintiff-Appellant, v. Robert Smith, a citizen of the State of North Carolina; Netherlands Museums Association, an entity of unknown form; Ton Cremers, a citizen or subject of the Netherlands; Mosler, Inc., a Delaware corporation with its principal place of business in Ohio, Defendants-Appellees.
• Docket Number: No. 01-56556.,No. 01-56380.
• Decision Date: 24 June 2003

333 F.3d 1018 Ellen L. BATZEL, a citizen of the State of California, Plaintiff-Appellee,
v.
Robert SMITH, a citizen of the State of North Carolina; Netherlands Museums Association, an entity of unknown form; Mosler, Inc., a Delaware corporation with its principal place of business in Ohio, Defendants, and
Ton Cremers, a citizen or subject of the Netherlands, Defendant-Appellant.
Ellen L. Batzel, a citizen of the State of California, Plaintiff-Appellant,
v.
Robert Smith, a citizen of the State of North Carolina; Netherlands Museums Association, an entity of unknown form; Ton Cremers, a citizen or subject of the Netherlands; Mosler, Inc., a Delaware corporation with its principal place of business in Ohio, Defendants-Appellees. No. 01-56380. No. 01-56556. United States Court of Appeals, Ninth Circuit. Argued and Submitted November 4, 2002. Filed June 24, 2003.

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Stephen J. Newman, Latham & Watkins, and Robert P. Long, Kinkle, Rodiger & Spriggs, Los Angeles, CA, for the defendants-appellants/appellees.

Howard S. Fredman, Los Angeles, CA, for the plaintiff-appellee/appellant.

Paul Alan Levy, Public Citizen Litigation Group, Washington, DC, for the amicus curiae.

Appeal from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding. D.C. No. CV-00-09590-SVW.

Before CANBY, GOULD, and BERZON, Circuit Judges.

Opinion by Judge BERZON. Opinion concurring in part and dissenting in part by Judge GOULD.

BERZON, Circuit Judge.

There is no reason inherent in the technological features of cyberspace why First Amendment and defamation law should apply differently in cyberspace than in the brick and mortar world. Congress, however, has chosen for policy reasons to immunize from liability for defamatory or obscene speech "providers and users of interactive computer services" when the defamatory or obscene material is "provided" by someone else. This case presents the question whether and, if so, under what circumstances a moderator of a listserv and operator of a website who posts an allegedly defamatory e-mail authored by a third party can be held liable for doing so. The case also presents a novel procedural question — whether the denial of an Anti-SLAPP motion filed pursuant to California law can be appealed prior to a final judgment in the underlying case. After recounting the unusual tale underlying this case, we address each of these questions in turn.

I.

In the summer of 1999, sometime-handyman Robert Smith was working for Ellen Batzel, an attorney licensed to practice in California and North Carolina, at Batzel's house in the North Carolina mountains. Smith recounted that while he was repairing Batzel's truck, Batzel told him that she was "the granddaughter of

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one of Adolf Hitler's right-hand men." Smith also maintained that as he was painting the walls of Batzel's sitting room he overheard Batzel tell her roommate that she was related to Nazi politician Heinrich Himmler. According to Smith, Batzel told him on another occasion that some of the paintings hanging in her house were inherited. To Smith, these paintings looked old and European.

After assembling these clues, Smith used a computer to look for websites concerning stolen art work and was directed by a search engine to the Museum Security Network ("the Network") website. He thereupon sent the following e-mail message to the Network:

From: Bob Smith [e-mail address omitted]

To: securma@museum-security.org [the Network]¹

Subject: Stolen Art

Hi there,

I am a building contractor in Asheville, North Carolina, USA. A month ago, I did a remodeling job for a woman, Ellen L. Batzel who bragged to me about being the grand daughter [sic] of "one of Adolph Hitler's right-hand men." At the time, I was concentrating on performing my tasks, but upon reflection, I believe she said she was the descendant of Heinrich Himmler.

Ellen Batzel has hundreds of older European paintings on her walls, all with heavy carved wooden frames. She told me she inherited them.

I believe these paintings were looted during WWII and are the rightful legacy of the Jewish people. Her address is [omitted].

I also believe that the descendants of criminals should not be persecuted for the crimes of the [sic] fathers, nor should they benefit. I do not know who to contact about this, so I start with your organization. Please contact me via email [...] if you would like to discuss this matter.

Bob.

Ton Cremers, then-Director of Security at Amsterdam's famous Rijksmuseum and (in his spare time) sole operator of the Museum Security Network ("the Network"), received Smith's e-mail message. The nonprofit Network maintains both a website and an electronic e-mailed newsletter about museum security and stolen art. Cremers periodically puts together an electronic document containing: e-mails sent to him, primarily from Network subscribers; comments by himself as the moderator of an on-line discussion; and excerpts from news articles related to stolen works of art. He exercises some editorial discretion in choosing which of the e-mails he receives are included in the listserv mailing, omitting e-mails unrelated to stolen art and eliminating other material that he decides does not merit distribution to his subscribers. The remaining amalgamation of material is then posted on the Network's website and sent to subscribers automatically via a listserv.² The Network's

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website and listserv mailings are read by hundreds of museum security officials, insurance investigators, and law enforcement personnel around the world, who use the information in the Network posting to track down stolen art.

After receiving it, Cremers published Smith's e-mail message to the Network, with some minor wording changes, on the Network listserv. He also posted that listserv, with Smith's message included, on the Network's website. Cremers later included it on the Network listserv and posted a "moderator's message" stating that "the FBI has been informed of the contents of [Smith's] original message."

After the posting, Bob Smith e-mailed a subscriber to the listserv, Jonathan Sazonoff, explaining that he had had no idea that his e-mail would be posted to the listserv or put on the web. Smith told Sazanoff:

I [was] trying to figure out how in blazes I could have posted me [sic] email to [the Network] bulletin board. I came into MSN through the back door, directed by a search engine, and never got the big picture. I don't remember reading anything about a message board either so I am a bit confused over how it could happen. Every message board to which I have ever subscribed required application, a password, and/or registration, and the instructions explained this is necessary to keep out the advertisers, cranks, and bumbling idiots like me.

Batzel discovered the message several months after its initial posting and complained to Cremers about the message. Cremers then contacted Smith via e-mail to request additional information about Smith's allegations. Smith continued to insist on the truth of his statements. He also told Cremers that if he had thought his e-mail "message would be posted on an international message board [he] never would have sent it in the first place."

Upon discovering that Smith had not intended to post his message, Cremers apologized for the confusion. He told Smith in an e-mail that "[y]ou were not a subscriber to the list and I believe that you did not realize your message would be forwarded to the mailinglist [sic]." Apparently, subscribers send messages for inclusion in the listserv to securma@x54all.nl, a different address from that to which Smith had sent his e-mail contacting the Network. Cremers further explained that he "receive[s] many e-mails each day some of which contain queries [he thinks] interesting enough to forward to the list. [Smith's] was one of those."

Batzel disputes Smith's account of their conversations. She says she is not, and never said she is, a descendant of a Nazi official, and that she did not inherit any art. Smith, she charges, defamed her not because he believed her artwork stolen but out of pique, because Batzel refused to show Hollywood contacts a screenplay he had written.

Batzel claims further that because of Cremers's actions she lost several prominent clients in California and was investigated by the North Carolina Bar Association. Also, she represents that her social reputation suffered. To redress her claimed reputational injuries she filed this lawsuit against Smith, Cremers, the Netherlands Museum Association,³ and Mosler, Inc. ("Mosler")⁴ in federal court in Los Angeles, California.

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Cremers countered with two motions: (1) a motion to strike under the California anti-SLAPP statute,⁵ alleging that Batzel's suit was meritless and that the complaint was filed in an attempt to interfere with his First Amendment rights, and (2) a motion to dismiss for lack of personal jurisdiction. The court denied both motions. Cremers then filed this appeal.

Batzel also alleged in her complaint that Mosler was vicariously liable for her reputational injuries because Cremers was acting as Mosler's agent. This agency relationship arose, according to Batzel, because Mosler gave Cremers $8,000 for displaying Mosler's logo and other advertisements on the Network website and in its listserv. The district court entered summary judgment in favor of Mosler, ruling that, under California law as applied to the undisputed facts, Cremers was not an agent of Mosler and Mosler could not be vicariously liable. Batzel appeals this decision as well.

II

The district court denied Cremers's motion to dismiss for lack of personal jurisdiction on June 5, 2001. Cremers's notice of appeal, which sought to appeal that order along with the district court's denial of Cremers's anti-SLAPP motion, was filed on July 27, 2001. No extension of time to...