Speth on Barnes v. Yahoo and 230 as an Affirmative Defense

By Eric Goldman

I’ve already blogged a couple times on the Ninth Circuit’s Barnes v. Yahoo ruling (commentary post; post on rehearing request). In response, I got an email from Maria Crimi Speth of Jaburg & Wilk in Phoenix, AZ. Maria has appeared in this blog before and is well-known as outside counsel to the Rip-off Report, which has appeared in this blog more times than I can remember. With her permission, I’m sharing Maria’s email:

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As the attorney who may hold the record for 12(b)(6) motions on the CDA, I would like to address that portion of the opinion. Your analysis discusses the procedural change inherent in finding that a 12(b)(6) motion is not the appropriate vehicle. I agree completely, but the harm goes further.

The Ninth Circuit has now unequivocally referred to 230 as an affirmative defense. I believe that is wrong. I have been taken the position in my pleadings that it is not an affirmative defense; it addresses the prima facie case. I avoid referring to 230 in my motions as an affirmative defense and I plead 230 in my answers as a failure to state a claim rather than an affirmative defense.

The reason: If I ever have to take one of these to trial, the plaintiff should have the burden of proving that my client is an information content provider of the content at issue. I should not have to prove the negative. Especially in light of the author’s right to anonymous free speech, it can be very difficult to prove that your client did not write something when the real author is anonymous.

The reasoning: 230 provides that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provider by another information content provider.” The plaintiff must plead and prove the elements of its claim. In defamation, for example, the plaintiff generally must prove the following elements: a defamatory statement; published to third parties; and which the speaker or publisher knew or should have known was false. Thus, the Plaintiff must prove that my client was the speaker or publisher of the false statement. 230 further defines that element of the claim and provides that the Plaintiff can only prove that element if they can show that my client is the actual information content provider. “A defense which demonstrates that plaintiff has not met its burden of proof is not an affirmative defense.” See Flav-O-Rich v. Rawson Food Service, Inc. (In re Rawson Food Service, Inc.), 846 F.2d 1343, 1349 (11th Cir.1988) (recognizing that a defense which points out a defect in the plaintiff’s prima facie case is not an affirmative defense); Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002).

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This is an excellent point, and one that I had not focused on previously. I know I’ve seen other courts refer to 230 as an affirmative defense, but I can’t recall any meaningful judicial explication of that characterization. In this case, I’m sure the panel tossed off the characterization breezily, but this is another gratuitous aspect of the opinion that the panel needs to defend or, better yet, correct.

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