Debbie Banaian v. Ann Elizabeth Bascom & a.

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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Hillsborough-northern judicial district
No. 2020-0496

DEBBIE BANAIAN

v.

ANN ELIZABETH BASCOM & a.

Argued: October 20, 2021
Opinion Issued: May 11, 2022

Shaughnessy Raiche, PLLC, of Bedford (Brian C. Shaughnessy on the
brief and orally), for the plaintiff.

Morrison Mahoney LLP, of Manchester (Adam R. Mordecai on the brief
and orally), for defendant Jacob D. MacDuffie.

Desmarais Law Group, PLLC, of Manchester (Debra L. Mayotte on the
brief and orally), for defendant Katie Moulton.

Lucas Law, PLLC, of Wolfeboro (Allen J. Lucas on the memorandum of
law), for defendant Ethan Hollen.
 Cronin Bisson & Zalinsky, P.C., of Manchester (Laura N. Carlier on the
memorandum of law), for defendant Shannon Bossidy.

Maggiotto, Friedman & Feeney, PLLC, of Concord (Christine Friedman on
the memorandum of law), for defendant Aaron Bliss.

Brady/Donahue, of Springfield, Vermont (John E. Brady on the brief), for
defendant Bryan Gagnon.

HANTZ MARCONI, J. The plaintiff, Debbie Banaian, appeals an order of
the Superior Court (Messer, J.) granting motions to dismiss filed by defendants
Aaron Bliss, Shannon Bossidy, Bryan Gagnon, Jacob D. MacDuffie, and Katie
Moulton. The sole issue on appeal is whether the defendants, who retweeted a
defamatory tweet (the retweeter defendants) initiated by another individual, are
“users” within the meaning of the Communications Decency Act, 47 U.S.C.
§ 230(c)(1) (2018) (CDA), and therefore entitled to immunity from the plaintiff’s
claims for defamation and reckless infliction of emotional distress. We affirm.

I. Background

The following facts are taken from the plaintiff’s complaint, which we
accept as true. See Thorndike v. Thorndike, 154 N.H. 443, 444 (2006). The
plaintiff was a teacher at Merrimack Valley Middle School in May 2016, when a
student at Merrimack Valley High School “hacked” the Merrimack Valley
Middle School website and changed the plaintiff’s webpage, creating a post that
“suggest[ed] that [the plaintiff] was sexually pe[r]verted and desirous of seeking
sexual liaisons with Merrimack Valley students and their parents.” Another
student took a picture of the altered website and tweeted that image over
Twitter. The retweeter defendants retweeted the original tweet. As a result, the
plaintiff was subject to “school-wide ridicule,” was unable to work for
approximately six months, and suffered financial, emotional, physical, and
reputational harm.

The plaintiff sued a number of defendants for defamation and reckless
infliction of emotional distress. These retweeter defendants moved to dismiss,
arguing that the plaintiff’s claims against them were barred by section 230(c) of
the CDA. The trial court agreed, determining that the retweeters’ actions of
simply “clicking the . . . ‘retweet’ icon and republishing someone else’s
content,” were shielded by section 230. Accordingly, the trial court dismissed
the plaintiff’s case against these retweeter defendants. Following a hearing, the

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trial court denied the plaintiff’s motion to reconsider. The trial court
subsequently directed that its order be treated as a final decision on the merits
as to the dismissed parties. See Super. Ct. R. 46(c)(1). This appeal followed.

II. Analysis

On appeal, the plaintiff argues that the trial court erred in ruling that the
retweeter defendants were “users” of an interactive computer service under the
CDA. In reviewing a trial court’s ruling on a motion to dismiss, we consider
whether the plaintiff’s allegations are reasonably susceptible of a construction
that would permit recovery. Thorndike, 154 N.H. at 446. Although we assume
the truth of the facts alleged in the plaintiff’s pleadings and construe all
reasonable inferences in the light most favorable to her, we will uphold the
granting of the motion to dismiss if the facts pled do not constitute a basis for
legal relief. Id.

Resolving the issue on appeal requires that we engage in statutory
construction. The interpretation of a statute is a question of law, which we
review de novo. Dube v. N.H. Dept. of Health and Human Services, 166 N.H.
358, 364 (2014). We interpret federal statutes in accordance with federal
policy and precedent. Id. When interpreting a statute, we first look to the
language of the statute itself and, if possible, construe that language according
to its plain and ordinary meaning. Id. When the language of the statute is
clear on its face, its meaning is not subject to modification. Id. We will neither
consider what Congress might have said, nor add words that it did not see fit to
include. Id. at 364-65.

The CDA provides in pertinent part that “[n]o 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). An “interactive computer service” is “any information service,
system, or access software provider that provides or enables computer access
by multiple users to a computer server, including specifically a service or
system that provides access to the Internet.” 47 U.S.C. § 230(f)(2) (2018). An
“information content provider” is “any person or entity that is responsible, in
whole or in part, for the creation or development of information provided
through the Internet or any other interactive computer service.” 47 U.S.C.
§ 230(f)(3) (2018). “No cause of action may be brought and no liability may be
imposed under any State or local law that is inconsistent with” section 230. 47
U.S.C. § 230(e)(3) (2018).

The statute sets forth findings and a statement of policy. See 47 U.S.C.
§ 230(a) & (b) (2018). Congress recognized the Internet as a “forum for a true
diversity of political discourse, unique opportunities for cultural development,
and myriad avenues for intellectual activity,” and that the “Internet and other

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interactive computer services have flourished, to the benefit of all Americans,
with a minimum of government regulation.” Id. § 230(a)(3)-(4). The stated
policy of the United States includes the promotion of “the continued
development of the Internet and other interactive computer services and other
interactive media” and the preservation of “the vibrant and competitive free
market” for such services, “unfettered by Federal or State regulation,” as well
as the encouragement of “the development of technologies which maximize user
control over what information is received by individuals.” Id. § 230(b)(1)-(3).

Separated into its elements, section 230(c)(1) “only protects from liability
(1) a provider or user of an interactive computer service (2) whom a plaintiff
seeks to treat, under a State law cause of action, as a publisher or speaker (3)
of information provided by another information content provider.” Teatotaller,
LLC v. Facebook, Inc., 173 N.H. 442, 450 (2020) (quotation omitted); see
Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st
Cir. 2007).

“Section 230 of the CDA provides broad immunity to entities that
facilitate the speech of others on the Internet.” Teatotaller, LLC, 173 N.H. at
448 (quotation and ellipsis omitted); see Bennett v. Google, LLC, 882 F.3d
1163, 1166 (D.C. Cir. 2018) (explaining that the intent of the CDA is “to
promote rather than chill internet speech”). “There has been near-universal
agreement that section 230 should not be construed grudgingly, but rather
should be given broad construction.” Teatotaller, LLC, 173 N.H. at 449
(quotations omitted).

The trial court found, and the plaintiff does not dispute, that Twitter falls
within the definition of an “interactive computer service.” Twitter is a social
media platform that “enables users to publish short messages to the general
public called ‘tweets,’ to republish or respond to others’ tweets, and to interact
with other users.” Campbell v. Reisch, 367 F. Supp. 3d 987, 989 (W.D. Mo.
2019). “A user ‘Retweets’ a Tweet when he or she elects to publish the original
Tweet in full on his or her Twitter profile. A Retweet shows the original Tweet in
full, including attribution to the person who initially published the Tweet.”
McNeil v. Biaggi Productions, LLC, No. 3:15cv751, 2017 WL 2625069 at *3 n.13
(E.D. Va. June 16, 2017).

The meaning of “user” in the first element of section 230(c)(1) is the sole
issue in this appeal. The plaintiff argues that “[a] person who knowingly retweets
defamatory information is not a ‘user’ of an interactive computer service the CDA
was designed to protect from defamation liability.” She asserts that “[n]othing in
the text of Section 230, or in the legislative history suggests that Congress
intended to provide immunity to individual users of a website,” and that “[t]he
term ‘user’ of an interactive computer service should be interpreted to mean
libraries, colleges, computer coffee shops, and companies that at the beginning of
the internet were primary access points for many people.” The plaintiff further

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asserts that “because the CDA changes the common law of defamation, the
statute must speak directly to immunizing individual users.” (Capitalization and
bolding omitted.)

The trial court “recognized that the vast majority of the reported cases
that address whether a defendant is immune from suit under Section 230
involve internet service providers . . . , and not individual users.” Nonetheless,
cases that have addressed this issue have determined that the broad immunity
in the statute extends to individual users. For example, in Barrett v.
Rosenthal, 146 P.3d 510 (Cal. 2006), an individual who posted a copy of an
article she had received via email on two newsgroup websites was sued for
republishing defamatory information. Barrett, 146 P.3d at 514. The California
Supreme Court addressed what “appear[ed] to be the first published case in
which section 230 immunity ha[d] been invoked by an individual who had no
supervisory role in the operation of the Internet site where allegedly defamatory
material appeared, and who thus was clearly not a provider of an ‘interactive
computer service’ under the broad definition provided in the CDA.” Id. at 515.
Employing “standard rules of statutory construction,” the court looked to the
ordinary meaning of the word “user” to discern “legislative purpose.” Id. at
526.

In doing so, the court determined that the term “‘[u]ser’ plainly refers to
someone who uses something, and the statutory context makes it clear that
Congress simply meant someone who uses an interactive computer service.”
Id. As the court reasoned,

Section 230(c)(1) refers directly to the “user of an interactive
computer service.” Section 230(f)(2) defines “interactive computer
service” as “any information service, system, or access software
provider that provides or enables computer access by multiple
users to a computer server, including specifically a service or
system that provides access to the Internet.” Section 230(a)(2)
notes that such services “offer users a great degree of control over
the information that they receive,” and section 230(b)(3) expresses
Congress’s intent “to encourage the development of technologies
which maximize user control over what information is received by
individuals, families, and schools who use the Internet and other
interactive computer services.” Thus, Congress consistently
referred to “users” of interactive computer services, specifically
including “individuals” in section 230(b)(3).

Id. (ellipsis omitted).

Given that Congress declared that “‘[n]o provider or user of an interactive
computer service shall be treated as [a] publisher or speaker,’” the court found
no basis “for concluding that Congress intended to treat service providers and

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users differently,” and that “the statute confers immunity on both.” Id. at 527.
Thus, the court concluded, “Congress employed the term ‘user’ to refer simply
to anyone using an interactive computer service,” id. at 515, and held that
section 230(c)(1) immunizes such individual users, id. at 513.

Subsequently, the United States District Court for the Eastern District of
Virginia, noting that the CDA does not contain a definition of “user,” turned to
the plain meaning of the word. Directory Assistants, Inc. v. Supermedia, LLC,
884 F. Supp. 2d 446, 452 (E.D. Va. 2012). Citing the dictionary definition of
“user” as “someone who uses,” and the verb “to use” as “putting into action or
service; avail oneself of; carry out a purpose or actions by means of; utilize,”
the court reasoned that the defendants’ “action of compiling information from a
website and e-mailing that information to others clearly constitutes use of that
website and its services.” Id. There was no allegation that the defendants
“engaged in the traditional role of a publisher of content by soliciting the posts,
creating them, or altering them,” or that the defendants “actually wrote,
created, or developed the allegedly defamatory content.” Id. at 453. Rather,
the defendants were “downstream users of content created by other people and
posted” on the websites at issue. Id.

The court determined that “there is no authority in the statute or case
law that makes a user responsible for the creation or development of posts on a
website that is an interactive computer service” and that “[i]n enacting the
CDA, Congress prohibited courts from entertaining claims that would place
both a computer service provider and user in a publisher’s role.” Id.
Accordingly, the court found that “a person who creates or develops unlawful
content may be held liable, but . . . a user of an interactive computer service
who finds and forwards via e-mail that content posted online in an interactive
computer service by others is immune from liability.” Id. at 451.

We are persuaded by the reasoning set forth in these cases. The plaintiff
identifies no case law that supports a contrary result. Rather, the plaintiff
argues that because the text of the statute is ambiguous, the title of section
230(c) — “Protection for ‘Good Samaritan’ blocking and screening of offensive
material” — should be used to resolve the ambiguity. We disagree, however,
that the term “user” in the text of section 230 is ambiguous. See Webster’s
Third New International Dictionary 2524 (unabridged ed. 2002) (defining “user”
to mean “one that uses”); American Heritage Dictionary of the English
Language 1908 (5th ed. 2011) (defining “user” to mean “[o]ne who uses a
computer, computer program, or online service”). “[H]eadings and titles are not
meant to take the place of the detailed provisions of the text”; hence, “the wise
rule that the title of a statute and the heading of a section cannot limit the
plain meaning of the text.” Brotherhood of R.R. Trainmen v. Baltimore & O.R.
Co., 331 U.S. 519, 528-29 (1947). Likewise, to the extent the plaintiff asserts
that the legislative history of section 230 compels the conclusion that Congress
did not intend “users” to refer to individual users, we do not consider legislative

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history to construe a statute which is clear on its face. See Adkins v.
Silverman, 899 F.3d 395, 403 (5th Cir. 2018) (explaining that “where a
statute’s text is clear, courts should not resort to legislative history”).

Despite the plaintiff’s assertion to the contrary, we conclude that it is
evident that section 230 of the CDA abrogates the common law of defamation
as applied to individual users. The CDA 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). We agree with the
trial court that the statute’s plain language confers immunity from suit upon
users and that “Congress chose to immunize all users who repost[] the content
of others.” That individual users are immunized from claims of defamation for
retweeting content that they did not create is evident from the statutory
language. See Zeran v. America Online, Inc., 129 F.3d 327, 334 (4th Cir. 1997)
(explaining that the language of section 230 makes “plain that Congress’ desire
to promote unfettered speech on the Internet must supersede conflicting
common law causes of action”).

We hold that the retweeter defendants are “user[s] of an interactive
computer service” under section 230(c)(1) of the CDA, and thus the plaintiff’s
claims against them are barred. See 47 U.S.C. § 230(e)(3). Accordingly, we
uphold the trial court’s granting of the motions to dismiss because the facts
pled in the plaintiff’s complaint do not constitute a basis for legal relief.

Affirmed.

MACDONALD, C.J., and BASSETT and DONOVAN, JJ., concurred.

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