D.C. Circuit Review – Reviewed: A (Mostly) Quiet Week

by Aaron Nielson — Friday, Feb. 23, 2018@Aaron_L_Nielson

This was a quiet week in the D.C. Circuit — that is, unless you study Internet Law.*

The D.C. Circuit again confronted the turbulent waters of “net neutrality.” Indeed, it did so in two ways, one high profile and one low profile. High profile, more than 20 States refiled their petition for review of the FCC’s Restoring Internet Freedom order. And low profile, the D.C. Circuit addressed another aspect of net neutrality — or at least something arguably related to it. In particular, the Court reiterated that search engines have a great deal of freedom to pick and choose which websites can be found.

Let’s begin with high profile. As I explained last month, a number of petitioners prematurely challenged the FCC’s order. The challenges were premature because the order was not published in the Federal Register. Now, however, the order has been published, so the time has come for would-be petitioners to file petitions if they want to participate in the lottery. (It appears that those initial petitions have been voluntarily dismissed. As the group of State petitioners explain in their new petition for review: “On January 16, 2018, State Petitioners and several other parties filed protective petitions in this Court. On February 16, 2018, the petitioners and the FCC filed a joint stipulation to withdraw the protective petitions voluntarily.”) It will be interesting to see who files, where they file, and where the consolidated challenge ultimately ends up.

Now let’s discuss the D.C. Circuit’s “search engine” case. It is called Bennett v. Google LLC. The facts are straightforward. Here is how Judge Henderson (joined by Judges Rogers and Kavanaugh) opened her opinion:

Offended by a third-party blog post, Plaintiff Dawn Bennett (Bennett) and her company, DJ Bennett Holdings, LLC (DJ Bennett), sued Google LLC (Google) for failing to remove the post. They alleged three state-law causes of action: (1) defamation; (2) tortious interference with a business relationship; and (3) intentional infliction of emotional distress. The district court granted Google’s motion to dismiss, concluding that the Communications Decency Act (CDA), 47 U.S.C. § 230, immunized Google from liability for the publication of third-party content. We affirm.

It seems that DJ Bennett sells luxury sporting goods — “$502 fishing boots, $680 skiing hats and $13,500 golf bags,” etc. In 2013, the company hired The Executive SEO Agency to help provide “search engine optimization and marketing (SEO) services.” As detailed in the D.C. Circuit’s opinion (which accepts the facts pleaded by DJ Bennett as true), the two companies had a falling out about fees. Afterwards, the founder of the SEO company wrote an unflattering blog post about DJ Bennett. Again, quoting the D.C. Circuit:

After the business relationship fell apart, Pierson wrote a blog titled “DJ Bennett-think-twice-bad business ethics” and published it on the internet through Google. Among other things, the blog asserted that (1) “DJ Bennett, the luxury sporting goods company, did not pay its employees or contractors”; (2) DJ Bennett was “ruthlessly run by Dawn Bennett who also operated Bennett Group Financial Services”; (3) Bennett falsely stated that Pierson had agreed to reduce his hours “as justification for reducing his final invoice by $3,200”; (4) Pierson’s counsel described Bennett as “judgment proof”; and (5) “DJ Bennett owes thousands and thousands to many people.” The blog concluded: “I urge you to think twice before giving your patronage to DJ Bennett.com … The website is pretty, but the person running the show is quite contemptible.”

Bennett could not persuade Pierson (the founder of the SEO company) to take the post down. So Bennett “contacted Google’s general counsel and other senior corporate officers, ‘asking them to drop Pierson’s blog because it violated Google’s Guidelines of what is appropriate material for inclusion in blogs.’ Notwithstanding Bennett’s complaints, Google ‘continues[] to publish Pierson’s blog.'”

Bennett then sued Google, alleging various “state” (rather, District of Columbia) causes of action. The district court, followed by the D.C. Circuit, dismissed her claims under Section 230 of the CDA. This federal law provides 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,” and further that “[n]o provider or user of an interactive computer service shall be held liable on account of … any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Likewise, “[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.”

I don’t teach Internet Law, but reviewing that statute, it doesn’t surprise me that Bennett lost. What is intriguing to me, however, is the argument that Google’s ability to limit what sites appears on its search engine makes Google a content provider rather than a computer service. The D.C. Circuit rejected the argument:

Bennett argues that by establishing and enforcing its Blogger Content Policy, Google is influencing— and thus creating—the content it publishes. This argument ignores the core of CDA immunity, that is, “the very essence of publishing is making the decision whether to print or retract a given piece of content.” In other words, there is a sharp dividing line between input and output in the CDA context. Here, the input is the content of Pierson’s negative blog about Bennett’s business; that blog was created exclusively by Pierson. Google’s role was strictly one of output control; it had the choice of leaving Pierson’s post on its website or retracting it. It did not edit Pierson’s post nor did it dictate what Pierson should write. Because Google’s choice was limited to a “yes” or “no” decision whether to remove the post, its action constituted “the very essence of publishing.”

That analysis seems straightforward enough (though again, I don’t claim deep expertise). It is interesting, however, to think about how a search engine’s policies influence third-party content. To be sure, as a policy matter, my immediate reaction is that this influence does not bother me much; especially for this sort of issue, I trust the disciplining effect of the market. But still, it is interesting.

The D.C. Circuit decided one more case this week.

In Airmotive Engineering Corp. v. FAA, Judge Rogers (joined by Judges Henderson and Sentelle) denied Airmotive’s petition for review of an FAA “airworthiness directive” that mandated the removal of some of Airmotive’s “engine cylinder assemblies.” Airmotive, it seems, is a replacement parts manufacturer for airplanes. If the FAA determines that a replacement part has an “unsafe condition,” it can issue an airworthiness directive, “which are published in the Federal Register” and are treated by the agency “as legally enforceable rules.” In 2013, following reports of mechanical failure in Airmotive’s replacement cylinder assemblies, “the FAA published a notice of proposed rulemaking for an airworthiness directive regarding the unsafe condition created by [certain] Airmotive cylinder assemblies.” Eventually, the FAA promulgated the airworthiness directive, which “required phased removal of AEC63 assemblies and prohibited their future installation.” Airmotive petitioned for review, but the Court concluded the FAA’s determinations were not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” The FAA reasoned that the cylinder assembly failures led to unsafe conditions because of a 20% loss in horsepower, excessive engine vibration possibly leading to in-flight fires, and “asymmetric thrust” in dual-engine planes. The Court determined that Airmotive did not sufficiently rebut the agency’s analysis. (Here is a sample of the Court’s reasoning: “No more availing is Airmotive’s view that the FAA’s reliance on two fatal airplane accidents was improper because neither crash involved AEC63 cylinders and neither crash was caused by faulty cylinders alone. The FAA’s reliance on the crash reports was reasonable because they too provided relevant information showing that failed cylinders created dangerous situations that at least partially caused forced plane landings that resulted in fatalities.”)

See, a slow week. But that’s probably just as well — it’s a snowy afternoon here in Provo and I’m about to take the kids sledding.

* There was a development at the Supreme Court. As noted a few weeks back, Judge Griffith’s concurrence in PHH Corp. v. CFPB advances a thought-provoking (and important) take on removal restrictions — “if Judge Griffith is right that ‘inefficiency’ grants the president a great deal of discretion to remove the head of an ‘independent’ agency for policy disagreements, the consequences would not be limited to the CFPB.” This week the United States filed its merits brief in Raymond J. Lucia Companies, Inc. v. SEC, currently before the U.S. Supreme Court (and with a long history of its own in the D.C. Circuit). As Marty Lederman noted on a list serve, the brief advances an argument somewhat similar to Griffith’s regarding removal restrictions for administrative law judges. Here is the heading of the discussion: “To avoid serious constitutional concerns, this Court should narrowly construe ‘good cause’ restrictions on removing ALJs.”

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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