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Pace v. Baker-White

United States District Court, E.D. Pennsylvania

January 13, 2020

D. F. PACE, ESQUIRE, Plaintiff,



         In the summer of 2016, a team of attorneys in Philadelphia learned that numerous local police officers had posted content on Facebook that appeared to endorse violence, racism and bigotry. In some of these posts, officers commented that apprehended suspects-often black men-“should be dead” or “should have more lumps on his head.” In other Facebook conversations, officers advocated shooting looters on sight and using cars to run over protestors. Numerous posts deemed Islam “a cult, not a religion” and referred to Muslims as “savages” and “goat-humpers.” And, in still others, officers appeared to joke about beating and raping women. This discovery inspired the creation of the Plain View Project (“the PVP”), a research project that has identified thousands of Facebook posts and comments by current and former police officers.[1] Defendants published these posts and comments, including one by Plaintiff D.F. Pace, on the PVP website.

         Pace, an attorney and inspector within the Philadelphia Police Department (“the PPD”), has sued Injustice Watch, an investigative journalism non-profit which runs the PVP, and Emily Baker-White, its former employee for defamation-by-implication and for putting him in a false light.[2] Plaintiff's published comment-“Insightful point” -is not the problem here. Plaintiff's contention broadly is that, when viewed in the context of the PVP's prefatory statements regarding their criteria for inclusion on the website, Defendants' publication of his name and comment implied that he is an officer who endorses violence, racism, and bigotry and who undermines public trust in the police by acting on those biases. Defendants now move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, their motion will be granted.

         I. FACTS [3]

         The PVP is a website run by Defendant Injustice Watch which compiled comments posted publicly by police officers on their personal Facebook pages. As set forth above, the “About” tab of the site explains how the PVP came about.[4] Having described the posts and comments published on the website, verbiage on the “About” tab continues: “We believe that these statements could erode civilian trust and confidence in police, and we hope police departments will investigate and address them immediately.”

         The methodology used to compile the posts is also described in detail on the PVP website. In the fall of 2017, Defendants obtained published rosters of police officers employed by eight jurisdictions across the United States. They then searched Facebook for the officers' names and made a list of Facebook pages or profiles that appeared to belong to them. Next, they searched within each profile for verification that the user was in fact the officer named on the rosters and to confirm that the profile was maintained by an identified police officer. Some users reported specific police departments as their employers; others posted pictures of themselves in uniform. Some discussed making arrests or performing other police duties. When a PVP researcher obtained verification and confirmation for a profile, the researcher captured the screen with the verifying information and added it to the PVP's files.

         Having compiled a list of more than 3, 500 verified accounts, Defendants then reviewed each public post or comment to assess whether they “could undermine public trust and confidence in police.” Ultimately, they included 5, 000 posts and comments which they believed “meet this criterion.” Screenshots of each of these posts and comments were placed on the PVP website, the homepage of which states:

We present these posts and comments because we believe that they could undermine public trust and confidence in our police. In our view, people who are subject to decisions made by law enforcement may fairly question whether these online statements about race, religion, ethnicity and the acceptability of violent policing- among other topics-inform officers' on-the-job behaviors and choices.
To be clear, our concern is not whether these posts and comments are protected by the First Amendment. Rather, we believe that because fairness, equal treatment, and integrity are essential to the legitimacy of policing, these posts and comments should be part of a national dialogue about police.

         Visitors to the site can find particular posts and comments through a searchable database organized by officer name, rank, badge number, and jurisdiction. But, before conducting a search, they are presented with a disclaimer to which they must click “I Understand, ” or else they cannot proceed. The disclaimer, which is prominently displayed-centered in the middle of and blocking a significant portion of the viewer's screen-contains the following language:

The Facebook posts and comments in this database concern a variety of topics and express a variety of viewpoints, many of them controversial. These posts were selected because the viewpoints expressed could be relevant to important public issues, such as police practices, public safety, and the fair administration of the law. The posts and comments are open to various interpretations. We do not know what a poster meant when he or she typed them; we only know that when we saw them, they concerned us. We have shared these posts because we believe they should start a conversation, not because we believe they should end one.
Inclusion of a particular post or comment in this database is not intended to suggest that the particular poster or commenter shares any particular belief or viewpoint with any other poster or commenters in the database. . . .

         The disclaimer also explains that the names and faces of non-officers were redacted from the posts as well as the names and faces of officers in comment threads “where their comments could not reasonably affect public trust in policing.” Once a visitor has clicked on the “I Understand” link, they are free to search the database and, at least if the search is made on the same computer, the disclaimer does not come up again.

         Defendants included in the database Plaintiff's comment posted on Facebook in response to another police officer's post. More specifically, on March 16, 2016, Philadelphia police officer Anthony Pfettscher created a Facebook post discussing the arrest of American Otto Warmbier in North Korea, an international news story at the time.[5] Pfettscher wrote: “I'm cracking up at that America college student that [sic] went to North Korea and tried to steal a poster. He is crying and pleading like a little baby girl because he was just sentenced to 15 years hard labor. Although my heart breaks for his family, it's an eye opener to how spoiled and coddled our youth of today are here in this weak PC country. Yet they act like animals and burn and step on our Flag that [sic] so many of our children died for defending our rights and our country. #SeeYouIn15Years #WakeUpAmerica #AskWhatYouCanDoForYOURcountry.” The PVP website includes six comments to the post, including Plaintiff's, which reads, “Insightful point.”[6] Three of the names of the commenters were redacted, three were not. Plaintiff's name was one of the ones that was not.

         Plaintiff claims that the inclusion of his comment on the PVP website defamed him and put him in a false light. At oral argument on this motion, upon being asked to specify what exact statements formed the premise of his lawsuit, Plaintiff stated that it was the inclusion of his words “Insightful point” in the context of the PVP's own description of the project on the homepage and the “About” page, as well as statements made in the disclaimer language, that- by implication-defamed and put him in a false light. More specifically, he argues that the website as a whole suggests he belongs “in a set of current and former police officers who endorse violence, racism and bigotry and act[] in manners consistent with these biases in their official capacity”; that he endorses violence, racism and bigotry; that he acts in a manner that undermines public trust in the police; that he is not carrying out his oath of office with integrity; and that he does not treat people equally.[7]


         On a motion to dismiss made pursuant to Federal Rule of Civil Procedure 12(b)(6), factual allegations are scrutinized to determine if the allegations and inferences proposed from those allegations are plausible. See Ashcroft v. Iqbal, 556 U.S. 662, 683 (2009). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” See Id. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court is required to “disregard rote recitals of the elements of a cause of action, legal conclusions, and mere conclusory statements.” James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012). The relevant question is not whether the claimant “will ultimately prevail . . . but whether [the] complaint [is] sufficient to cross the federal court's threshold.” Skinner v. Switzer, 562 U.S. 521, 531 (2011).

         III. ANALYSIS [8]

         Defendants argue that Plaintiff's claims must be dismissed because: they are barred by the Communications Decency Act; the inclusion of Plaintiff's comment on the PVP website is not capable of defamatory meaning; Plaintiff's claims are based on Defendants' opinions and therefore are not actionable as a matter of law; and, Plaintiff has failed to plead actual malice.

         A. Communications Decency Act

         Defendants assert they are immune from this lawsuit under Section 230 of the Communications Decency Act (“the CDA” or “the Act”), 47 U.S.C. § 230, [9] which 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). Section 230(c)(1) specifically provides that: “No provider or user of an interactive computer shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1).[10]The term “interactive computer service” is defined in relevant part as “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server. . . . ” Id. at § 230(f)(2). The term “information content provider” means “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.” Id. at § 230(f)(3). Thus, CDA immunity applies where: (1) the defendant is a user or provider of an “interactive computer service”; (2) the asserted claim seeks to treat the defendant as publisher of the challenged communication; and (3) the challenged communication is “information provided by another information content provider.” Dimeo v. Max, 433 F.Supp.2d 523, 529 (E.D. Pa. 2006), aff'd, 248 Fed.Appx. 280 (3d Cir. 2007).

         The battle here is over the third element-whether the challenged communications are “information provided by another information content provider.” While it is uncontroverted that Plaintiff wrote the words “Insightful point, ” the parties diverge as to how the prefatory language included by Defendants on the PVP website should inform the Section 230 analysis.

         Defendants argue that because they were not the author of the words “Insightful point” (Pace was), and because the publication of someone else's content even if the publisher selected and edited the content does not transform such publisher into the creator or developer of the content, i.e. into an information content provider, their decision to publish Pace's words is protected by Section 230. And, in support of this proposition, they cite to a long line of cases. See Obado v. Magedson, 612 Fed.Appx. 90, 93 (3d Cir. 2015); Carafano v., Inc., 339 F.3d 1119, 1120-24 (9th Cir. 2003); Ben Ezra, Weinstein & Co. v. America Online, Inc., 206 F.3d 980, 985 (10th Cir. 2000); DiMeo, 433 F.Supp.2d at 530; Blumenthal v. Drudge, 992 F.Supp. 44, 49-53 (D.D.C. 1998).

         Plaintiff, to the contrary, maintains that this matter is different from the run-of-the-mill Section 230 case. Here, he argues, Defendants were both service and content providers in that they did much more than simply package and publish his words: Rather, they published them with prefatory content they created which necessarily informed readers' understanding of his words. In support of this position, he cites to Fair Housing Council v., LLC, in which the Ninth Circuit found that “[a] website operator can be both a service provider and a content provider: If it passively displays content that is created entirely by third parties, then it is only a service provider with respect to that content. But as to content that it creates itself, or is responsible, in whole or in part for creating or developing, the website is also a content provider. Thus, a website may be immune from liability for some of the content it displays to the public but be subject to liability for other content.” 521 F.3d 1157, 1162-63 (9th Cir. 2008) (en banc) (internal quotations omitted).

         Distilled to its essence, Plaintiff's argument is that because Defendants contextualized his comment with content of their own-thus by implication suggesting that he endorsed violence, racism, and bigotry and acted in a manner consistent with those biases in carrying out his duties as a police officer-Defendants cannot find protection (at least on the facts alleged here) under the aegis of Section 230.

         Certainly, while courts construe Section 230 broadly, see Nemet Chevrolet, Ltd. v., Inc., 591 F.3d 250, 257 (4th Cir. 2009) (collecting cases), the immunity it bestows is not unlimited. Section 230 cases exist along a continuum, with “internet service providers” being immunized while “content providers” are not. Along that continuum are various levels of editorial control, ranging from merely hosting, curating, or positioning content; through editing, to framing, and creating content. The question here is where along that continuum Defendants' commentary lie.

         One end of the continuum is populated by cases in which an interactive computer provider merely hosts or republishes defamatory content. In such cases, the provider is protected by Section 230. See Cubby, Inc. v. Compuserve, 776 F.Supp. 135, 137-40 (S.D.N.Y. 1991) (immunizing webpage known as “Rumorville” for being merely an electronic library with “no more editorial control over . . . a publication than does a public library, book store, or newsstand”). Most Section 230 cases fall into this category. See, e.g., Green, 318 F.3d at 471 (immunizing America Online from liability for defamatory statements John Does made in chatrooms); Obado, 612 Fed.Appx. at 93 (immunizing defendants, including Yahoo!, Inc. and Google, Inc., where the “allegedly actionable content originated from” two bloggers and defendants merely reposted); Zeran, 129 F.3d at 331-32 (immunizing America Online from liability for anonymous Internet poster who created fake ads about plaintiff in online forum); Chicago Lawyers' Comm. v. Craiglist, Inc., 519 F.3d 666, 668 (7th Cir. 2008) (immunizing Craigslist from liability for hosting offensive and racist housing ads); Carafano, 339 F.3d at 1120-24 (immunizing online dating website from claim over allegedly false content on a user's dating profile because “Matchmaker did not play a significant role in ...

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