Section 230 Doesn’t Provide a Basis To Remove Cases to Federal Court–A.R.K. v. Grindr
The court summarizes this case:
Plaintiff alleges that Grindr and the individual defendants engaged in a conspiracy to produce and disseminate sexually explicit photographs and pornography, with Grindr providing the platform for anonymous meetings, communication, and dissemination.
Section 230 may not work against a conspiracy claim, but otherwise Grindr’s role in “providing the platform for anonymous meetings, communication, and dissemination” is exactly what Section 230 should cover. Grindr removed the case from state to federal court on the basis of its Section 230 defense. The plaintiff successfully remands the case back to state court.
The court says cases can be removed to federal court when all state law claims are preempted by federal law. Section 230(e)(3) negates that possibility:
There is no indication that Congress meant to completely preempt state-law claims. In fact, the CDA provides that “[n]othing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No 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). The plain language of the CDA indicates a congressional intent for conflict (or ordinary) preemption rather than complete preemption.
[For a deep dive on the meaning of 230(e)(3), see this guest blog post by Cary Glynn.] Congress’ desire for legal uniformity across the states didn’t change the court’s conclusion.
The court then awards attorneys’ fees to the plaintiff for Grindr’s removal attempt because “Grindr lacked an objectively reasonable basis for removal.” The court explains:
At the time of removal, the law was clearly established that a federal defense, including one of preemption that will necessarily be an issue in the case, is insufficient to establish federal question jurisdiction. The plain language of the CDA demonstrated a congressional intent for conflict preemption only. As the Court previously noted, a cursory search of this issue reveals several cases going back at least two decades holding that the CDA does not completely preempt state law. [Cites to Leviston v. Jackson, RL Lackner v. Sanchez, Cisneros v. Sanchez, In re Baxter, and Zeran v. AOL.] Had Grindr’s counsel performed even minimal research on this issue, these cases would have been discovered.
So there you have it. Section 230 as a basis for removal isn’t a new issue; Cisneros is directly on point and from 2005; but the question has not been litigated frequently. Yet, to this court, it’s so clear that Section 230 doesn’t provide a basis for removal to federal court that it’s sanctionable. News You Can Use.
Case citation: A.R.K v. La Petite Academy, 2018 WL 2059531 (W.D. Tex. May 2, 2018)
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