Green v. America Online (Aol)

• Decision Date: 16 January 2003
• Docket Number: No. 01-1120.,01-1120.
• Citation: 318 F.3d 465
• Parties: John GREEN Appellant v. AMERICA ONLINE (AOL); John Does 1 & 2.
• Court: U.S. Court of Appeals — Third Circuit

318 F.3d 465

John GREEN Appellant v. AMERICA ONLINE (AOL); John Does 1 & 2.

No. 01-1120.

United States Court of Appeals, Third Circuit.

Submitted under Third Circuit LAR 34.1(a) November 15, 2002.

Filed January 16, 2003.

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John Green, Edison, Appellant, pro se.

Samir C. Jain, Wilmer, Cutler & Pickering, Washington, for Appellee.

Before SLOVITER, RENDELL and ROSENN, Circuit Judges.

OPINION OF THE COURT

ROSENN, Circuit Judge.

The primary issue raised in this appeal, one of first impression in this court, is whether American Online, Inc. (AOL), a provider of interactive computer services, is statutorily immune from liability from causes of action arising from third party content. The plaintiff, John Green, sued AOL and John Does 1 and 2 in the Superior Court of New Jersey. In his one hundred and ten paragraph pro se amended complaint, aptly described by the District Court as "not especially clear," the plaintiff alleges that AOL negligently failed to live up to its contractual obligations to Green by refusing to take necessary action against John Does 1 and 2, who allegedly transmitted harmful online messages to Green and others.

Green named AOL as an additional defendant, claiming that the messages were transmitted during the course of conversations carried on through the AOL international work service. Because Green amended his complaint in the state court, adding a claim that AOL violated his First Amendment rights, AOL removed the case to the District Court for the District of New Jersey. The District Court denied Green's motion to remand to the state court. AOL moved to dismiss all claims against it on the ground that it was statutorily immune from all tort claims against it relating to the John Doe defendants' messages by virtue of the provisions of 47 U.S.C. § 230. The District Court granted AOL's motion.¹ Green timely appealed from the order denying his motion to remand to the state court and from the order dismissing his claims against AOL. We affirm.

I.

Undisputed by the parties, AOL is the world's largest interactive computer service with over 2.2 million members. It provides its millions of subscribers information that is only available though its international network of interconnected computers and services, and access to the public Internet. (117-18A). It also provides or enables, inter alia, a number of online communications tools, such as e-mail, news groups, and chat rooms, that allow its subscribers to communicate with one another and with other users of the Internet. (Id.)

A subscriber to AOL must agree to the terms of its Member Agreement, which requires subscribers to adhere to AOL's standards for online speech and conduct set forth in AOL's "Community Guidelines." Green subscribed to AOL using the screen name "Lawyerkill." A screen name is commonly used by persons when communicating through an online service such as AOL. The other two defendants, John Doe 1 and John Doe 2, allegedly were also AOL subscribers adopting the screen names "LegendaryPOLCIA" and "Lawyerkiii," respectively. (116A) "Lawyerkiii" appears as "Lawyerkill" when the letter "i" is capitalized.

Green's amended complaint alleges that the John Doe defendants transmitted certain content in the AOL chat room "Romance — New Jersey over 30." Chat rooms are a modern-day analog to yesteryear's telephone party lines and allow individual parties to "talk" to as many as twenty-three other parties at one time. The first chat room incident of which Green complaints involved John Doe 1, who allegedly entered the chat room conversation under the screen name "LegendaryPOLCIA." (121A) Green alleges that John Doe 1 "sent a punter through AOL, which caused Green's computer to lock up and Green had to restart his computer." Green's complaint describes a "punter" as a computer program created by a hacker whose purpose is to halt and disrupt another computer. Upon restarting his computer and entering the chat room where the punter had been delivered, Green learned that "LegendaryPOLCIA" claimed credit for producing what he called the "blue screen of death." Green alleges that he lost five hours of work restarting his computer, causing him damages of approximately $400.

Green also alleges that he and unidentified others reported John Doe 1 to AOL who informed him that they would take no action unless he provided evidence that "LegendaryPOLCIA" sent the destructive signal. Green alleges that he provided additional evidence to AOL but it took "no effective action to stop `LegendaryPOLCIA.'" The amended complaint alleges other online episodes in which "LegendaryPOLCIA" (John Doe 1) and "Lawyerkiii" (John Doe 2) allegedly defamed and inflicted emotional distress on Green. First, the complaint alleges that "LegendaryPOLCIA" defamed Green by typing the messages "SHELLS CAREFUL LAWYER IS BI" and "LAWYER NO IMS FOR GAY SEX THX:))" in a chat room titled "Romance — New Jersey over 30." Green alleges that he faxed AOL a log of the chat room showing "LegendaryPOLCIA" defaming him but AOL did nothing to stop it. The complaint also alleges that on two occasions "LawyerKiii" impersonated Green entering a chat room and "asking guys in the chat room for gay sex." The complaint also purported to plead a general negligence claim against AOL for failure to police its services.

There were also allegations that AOL's Community Guidelines violated Green's First Amendment rights because they required Green to adhere to them when he used AOL service to access the Internet. Green further alleged that AOL violated the New Jersey Consumer Fraud Act by filing legal actions against third parties for sending unlawful bulk, unsolicited e-mail (commonly known as "Spam") to AOL subscribers and by blocking access to unspecified "internet newsgroups."

The complaint demanded a total of $400 in compensatory damages from AOL and the two John Doe plaintiffs and unspecified punitive damages. It also sought injunctive relief to enjoin AOL from restricting Green's ability to send and obtain information on the Internet when using AOL's services.

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We exercise plenary review over the District Court's order denying Green's motion for remand. Werwinski v. Ford Motor Co., 286 F.3d 661, 665 (3d Cir.2002).² Our review of a decision to grant a Rule 12(b)(6) motion is plenary. Weston v. Pennsylvania, 251 F.3d 420, 425 (3d Cir. 2001). We accept all factual allegations in the complaint as true, and we draw all reasonable inferences in the light most favorable to the plaintiff. Id. We will affirm only if no relief could be granted under any set of facts the plaintiff could prove. Id.

We agree with the District Court's reasoning and conclusion with respect to Green's motion to remand the case to state court. Green alleged in Count Twelve of his Amended Complaint that AOL's Community Guidelines abrogate his freedom of speech and violate his First Amendment rights. This is a clear invocation of federal question jurisdiction under 28 U.S.C. § 1331. Removal thus was proper under 28 U.S.C. § 1441. Joyce v. RJR Nabisco Holdings Corp., 126 F.3d 166, 171 (3d Cir. 1997). Green argues that the removal was defective because the John Doe defendants did not join the notice of removal. However, the general rule that all defendants must join in a notice of removal may be disregarded where, as here, the non-joining defendants are unknown. Balazik v. County of Dauphin, 44 F.3d 209, 213 n. 4 (3d Cir.1995).

We also agree that Green's tort claims are subject to AOL's immunity under 47 U.S.C. § 230. Section 230 provides, in pertinent part, "No 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). Section 230 also provides 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." 47 U.S.C. § 230(e)(3). There is no dispute that AOL is an interactive computer service as defined in 47 U.S.C. § 230(f) or that the relevant content originated not from AOL but from "another information content provider." 47 U.S.C. § 230(c)(1). The only question, then, is whether holding AOL liable for its alleged negligent failure to properly police its network for content transmitted by its users — here, the "punter" signal and the derogatory comments — would "treat" AOL "as the publisher or speaker" of that content. We agree with the District Court that it would.

By its terms, § 230 provides immunity to AOL as a publisher or speaker of information originating from another information content provider. The provision "precludes courts from entertaining claims that would place a computer service provider in a publisher's role," and therefore bars "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." Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir.1997); see also, e.g., Ben Ezra, Weinstein & Co. v. America Online, Inc., 206 F.3d 980, 986 (10th Cir.2000) ("Congress clearly enacted § 230 to forbid the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.").

There is no real dispute that Green's fundamental tort claim is that AOL was negligent in promulgating harmful content and in failing to address certain harmful content on its network. Green thus attempts to hold AOL liable for decisions relating to the monitoring, screening, and deletion of content from its network — actions quintessentially related to a publisher's role. Section 230 "specifically proscribes liability" in such circumstances. Zeran, 129 F.3d at 332-33.

Green disputes that the "punter" computer program sent...