Case No. ___________

     
                 IN THE SUPREME COURT
              OF THE STATE OF CALIFORNIA
                           
                           
              STEPHEN J. BARRETT, et al.
                           
                Plaintiffs and Appellants,
                           
                          v.
                           
                   ILENA ROSENTHAL,
                           
                 Defendant and Respondent.
                           
                           
                           
                           
                 PETITION FOR REVIEW
                           
       After a Decision by the Court of Appeal
        First Appellate District, Division Two
               [Appellate No. A096451]
                           
                           
                           
                  PIPER RUDNICK, LLP
               ROGER MYERS (SBN 146164)
               LISA SITKIN (SBN 194127)
            KATHERINE KEATING (SBN 217908)
            333 Market Street, 32nd Floor
             San Francisco, CA 94105-2150
              Telephone: (415) 777-3999
              Facsimile: (415) 442-0856
                           
            California Anti-SLAPP Project
              Mark Goldowitz (SBN 96418)
                2903 Sacramento Street
                 Berkeley, CA  94702
              Telephone:  (510) 486-9123
              Facsimile:  (510)-486-9708
                           
               Attorneys for Petitioner
                   Ilena Rosenthal

ISSUE PRESENTED FOR REVIEW . . . . . . . . . . . . . .
WHY REVIEW SHOULD BE GRANTED . . . . . . . . . . . . .
BACKGROUND . . . . . . . . . . . . . . . . . . . . . .

A. Congress Enacted Section 230 Of The CDA To Immunize Internet Intermediaries From Liability For Third-Party Content . . . . . . . . . . . . . .
B. The Court of Appeal Held That Section 230 Does Not Immunize Rosenthal From Liability for Third- Party Content . . . . . . . . . . . . . . . . .

A. The Decision Conflicts With Two Prior Opinions In This State . . . . . . . . . . . . . . . . . .

1. In Kathleen R., Another Division Of The First District Said Section 230 Immunity Is Not Lost If Defendant Has Notice . . . . . .
2. In Gentry, The Fourth District Agreed With Kathleen R.. . . . . . . . . . . . . . .
3. The Conflict Between These Prior Opinions And The Decision Below Cannot Be Reconciled Absent Review By This Court . . . . . .

B. The Decision Conflicts With All Prior Opinions In The Country. . . . . . . . . . . . . . . . . .

1. Courts In Two-Thirds Of The Federal Circuits, And Several States, Have All Interpreted This Federal Statute In A Manner Squarely At Odds With The Court Of Appeal's Decision Below . . . . . . .
2. Unless Review Is Granted And The Conflict With The Federal Authorities, Including The Ninth Circuit, Is Resolved, It Will Encourage Forum Shopping And Leave California Internet Intermediaries Liable While All Others Have Federal Immunity . . . . . .

A. Section 230 Prohibits Imposing Liability Regardless Of Whether A Defendant Would Be Classified As A "Primary Publisher" Or A "Distributor" At Common Law Because Distributors Who Meet The Notice Liability Standard Are Treated As Publishers . . . . . .
B. The Legislative History Supports The Conclusion That Congress Intended Section 230 To Bar All Forms Of Publisher Liability . . . . . . . . .
C. Unless Review Is Granted And The Decision Below Reversed, It Will Frustrate The Very Policies That The Text And Legislative History Of Section 230 Show It Was Intended To Advance. . . . . . . .

CASES
Federal

Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003). . . . . . . . . . . .
Ben Ezra, Weinstein, and Co. v. America Online Inc., 206 F.3d 980 (10th Cir. 2000). . . . . . . . . . . .
Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998). . . . . . . . . .
Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991) . . . . . . .
Green v. America Online, 318 F.3d 465 (3rd Cir. 2003) . . . . . . . . . . . . .
McBride v. Merrell Dow & Pharmaceuticals, Inc., 717 F.2d 1460 (D.C. Cir. 1983) . . . . . . . . . . . . .
Morrison v. America Online, Inc., 153 F. Supp. 2d 930 (N.D. Ind. 2001) . . . . . . . .
Patentwizard, Inc. v. Kinko's, Inc., 163 F. Supp. 2d 1069 (D.S.D. 2001) . . . . . . . . . . .
Reno v. ACLU, 521 U.S. 844 (1997). . . . . . . . . . . . . . . . . . .
Smith v. Intercosmos Media Group, Inc., U.S. Dist. LEXIS 24251 (E.D. La. 2002) . . . . . . . . .
United States v. Texas, 507 U.S. 529 (1993). . . . . . . . . . . . . . . . . . .
Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997) . . . . . . . . . . . .

State

Aquino v. ElectriCiti Inc., 26 Med. L. Rptr. 1032 (Cal. Super. Ct. 1997) . . . . . .
Baker v. Los Angeles Herald Examiner, 42 Cal. 3d 254 (1986). . . . . . . . . . . . . . . . . .
Barrett v. Fonorow, 799 N.E.2d 916 (Ill. App. 2003). . . . . . . . . . .
Conrad v. Bank of America, 45 Cal. App. 4th 133 (1996). . . . . . . . . . . . .
Doe One v. Oliver, 755 A.2d 1000 (Conn. Super. 2000). . . . . . . . . . . .
Doe v. America Online, Inc., 783 So. 2d 1010 (Fla. 2001). . . . . . . . . . . . . . .
Farmland Irrigation Co. v. Dopplmaier, 48 Cal. 2d 208 (1957). . . . . . . . . . . . . . . . . .
Gentry v. eBay, Inc., 99 Cal. App. 4th 816 (2002). . . . . . . . . . . . .
IT Corp. v. Superior Court, 83 Cal. App. 3d 443 (1978) . . . . . . . . . . . . . .
Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684 (2001). . . . . . . . . . . . .
Mutual Life Ins. Co. v. City of Los Angeles, 50 Cal. 3d 402 (1990). . . . . . . . . . . . . . . . . .
Peralta Community College Dist. v. Fair Employment & Housing Comm'n, 52 Cal. 3d 40 (1990) . . . . . . . . . .
Rohr Aircraft Corp. v. County of San Diego, 51 Cal. 2d 759 (1959). . . . . . . . . . . . . . . . . .
Sabbato v. Hardy, 29 Media L. Rptr. 1860-62, 2000 Ohio App. LEXIS 6154 (Ohio App. 2000) . . . . . . .
Schneider v. Amazon.com, Inc., 31 P.3d 37 (Wash. App. 2001) . . . . . . . . . . . . . .
Stoner v. eBay Inc., 56 U.S.P.Q.2d 1852 (Cal. Super. Ct. 2000). . . . . . . .
Stratton Oakmont, Inc. v. Prodigy Servs. Co., 23 Med. L. Rptr. 1794, 1995 N.Y. Misc. LEXIS 229 (N.Y. Sup. Ct. 1995) . . . .
Webb v. Superior Court, 225 Cal. App. 3d 990 (1990). . . . . . . . . . . . .
Yee v. City of Escondido, 224 Cal. App. 3d 1349 (1990) . . . . . . . . . . . .

STATUTES

47 U.S.C. 230 . . . . . . . . . . . . . . . . . . .
Cal Rule of Court 28 . . . . . . . . . . . . . . . . . . .

OTHER AUTHORITIES

Dobbs, The Law of Torts (2001) . . . . . . . . . . . . .
Friedman & Buono, Limiting Tort Liability for Online Third- Party Content Under Section 230 of the Communications Decency Act, 52 Fed. Comm. L.J. 647 (2000) . . . . .
Restatement 2d of Torts . . . . . . . . . . . . . . .

Whether section 230 of the Communications Decency Act of 1996, 47 U.S.C. 230, preempts all forms of common law liability against an interactive computer service provider or user for republishing third-party content online, including notice-based distributor liability -- as every other court to address the issue has concluded, including two Courts of Appeal in this state, and courts in eight federal circuits and five other states -- or whether section 230 does not preempt distributor liability, as the Court of Appeal held in this case.

Until the Court of Appeal's decision in this case, "every court to reach the issue" -- including courts in eight of the 12 federal circuits and five other states -- had reached the same conclusion: in section 230 of the Communications Decency Act of 1996 ("CDA"), 47 U.S.C. 230, "Congress intended to immunize both distributors and publishers." Batzel v. Smith, 333 F.3d 1018, 1027 n.10 (9th Cir. 2003). To protect speech in cyberspace, Congress chose to preempt and "override[] the traditional treatment of publishers, distributors, and speakers under statutory and common law" for those, like Petitioner Ilena Rosenthal, who are "not the author of the defamatory text." Id. at 1026-27. Every federal case interpreting this federal statute thus holds section 230 "'precludes courts from entertaining claims that would place a computer service provider in a publisher's role,' and therefore 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.'" Green v. America Online, 318 F.3d 465, 471 (3rd Cir. 2003) (quoting Zeran v. America Online, 129 F.3d 327, 330 (4th Cir. 1997)).

Until the decision in this case, California courts interpreted and applied section 230 in the same manner. An interactive computer service provider or user (collectively "Internet intermediaries") could "not be liable as a publisher or distributor" of another's content, Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684, 695 n.3 (2001) (emphasis in original), because any theory of "liability under [which a court] ultimately hold[s] [an Internet intermediary] responsible for content originating from other parties ... would be treating it as the publisher, viz., the original communicator, contrary to Congress's expressed intent under section 230(c)(1) and (e)." Gentry v. eBay, Inc., 99 Cal. App. 4th 816, 831 (2002).

The decision below breaks with all this precedent by finding section 230 does not preclude holding Rosenthal liable for reposting and failing to remove a third-party's e-letter about plaintiff Terry Polevoy after she received an email from Polevoy's colleague threatening suit. Under the common law, this made her a distributor with notice of the allegedly defamatory content, and thus liable as if she had written or published it herself. Contrary to all precedent, the panel holds section 230 does not preempt this theory of liability, even though it treats Rosenthal as the publisher or author and section 230 bars any theory of liability that "treat[s] [her] as a publisher or speaker" of another's content. Id. at 830, 833 n.10.

Review should be granted under Rule 28(b)(1) to secure uniformity of decision by resolving the conflict among the Courts of Appeal and harmonizing California's reading of section 230 with the unanimous authority elsewhere interpreting this statute. Misreading both the text of the statute and its legislative history to narrow section 230's immunity, the decision below undermines the policies Congress sought to advance in section 230 protecting speech on the Internet and encouraging self- regulation which require uniform national application to achieve. For this reason, another state's courts rejected the argument of one plaintiff in this case who contended federal precedent should be rejected and section 230 should not protect defendants who distributed emails originating with the source at issue here with notice of their content, Barrett v. Fonorow, 799 N.E.2d 916 (Ill. App. 2003). This Court must do the same.

Review is particularly necessary here because, as the Court of Appeal concedes, its interpretation of section 230 conflicts with that of the Ninth Circuit. Unless review is granted, this conflict will "encourage forum shopping," IT Corp. v. Superior Court, 83 Cal. App. 3d 443, 451 (1978), and will create the untenable situation where a California Internet intermediary sued by a California resident in state court for reposting or failing to remove content after receiving "notice" will not be protected by section 230 while an intermediary based outside the state may obtain the protection of section 230 by removing the case to federal court.

When Petitioner Rosenthal received an email threatening to sue her for reposting another person's email to two Internet newsgroups, she was shocked, as she told the newsgroups, because she was "not the author, [but] just was posting it as information." Appellants' Appendix ("AA") 75. Rosenthal had reason to be surprised; in the years since Congress enacted it, every court that had interpreted section 230 had found it immunized any Internet intermediary from liability for posting content on the Internet that was created by someone else. On this basis, among others, the trial court granted Rosenthal's motion to strike the libel suit ultimately filed against her. But the Court of Appeal reversed. Refusing to follow uniform federal authority interpreting this federal statute, the panel created an exception to section 230 immunity for an Internet intermediary who "knew or should have known" of the allegedly defamatory nature of third- party content.

A. Congress Enacted Section 230 Of The CDA To Immunize Internet Intermediaries From Liability For Third-Party Content

As the Internet grew, so did the number of lawsuits in which plaintiffs sought to hold liable not only the original authors of content but also Internet service providers ("ISPs") and other intermediaries that distributed third-party content online. As courts struggled to apply common law principles in this new medium, they wound up punishing intermediaries that monitored their services and absolving from any potential liability those that did nothing.

In Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991), for example, the court rejected a libel suit against CompuServe over statements posted by a third-party. The court found CompuServe was a distributor and not a publisher because it did not monitor or exercise editorial control over content and could not be liable because it had no actual or constructive knowledge of the defamatory content. In contrast, Stratton Oakmont, Inc. v. Prodigy Servs. Co., 23 Med. L. Rptr. 1794, 1995 N.Y. Misc. LEXIS 229 (N.Y. Sup. Ct. 1995), rejected Prodigy's argument that it was, like CompuServe, a distributor rather than a publisher. The Court treated Prodigy as a publisher of statements posted to its electronic bulletin board because it had implemented automatic screening mechanisms for posted material and allowed employees to delete posts i.e., because it exercised editorial control by monitoring and screening content on its services.

When Stratton Oakmont was decided, Congress had already begun work on an amendment to the Telecommunications Act that would ultimately become the Communications Decency Act of 1996. In considering how best to restrict access by children to offensive online speech, Congress concluded that self-regulation would be the most effective approach. See, e.g., 141 Cong Rec. H8469 (daily ed. August 4, 1995). But the specter of liability illustrated by Cubby and Stratton Oakmont threatened Congress' plans to rely on self-regulation to restrict offensive online speech, and also threatened to curtail non-offensive speech. Congress responded by adding provisions to the CDA to immunize Internet intermediaries against liability for other parties' content.

These provisions, called the "Internet Freedom and Family Empowerment Act," were ultimately codified as section 230 of the CDA and include explicit findings regarding the value of the educational and informational resources available on the Internet and a statement of Congress' intent to minimize government regulation of the medium. 47 U.S.C. § 230(a) & (b)(2). Its operative provisions protect all Internet intermediaries against liability for publishing information provided by a third party, as well as for actions taken to monitor and restrict access to certain content. [FN 1]

[FN 1] Section 230 provides, in relevant part, as follows:

(c) (1) Treatment of publisher or speaker

No 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.

(2) Civil liability

No provider or user of an interactive computer service shall be held liable on account of -

(A) 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; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)....

(e) Effect on other laws ...

(3) State law

... 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.

B. The Court of Appeal Held That Section 230 Does Not Immunize Rosenthal From Liability for Third-Party Content

Petitioner Rosenthal is a women's health advocate who focuses on issues relating to breast implants. AA 174-77. As part of her work, she creates networks to disseminate information and facilitate communication about implant-related health issues. Id. To this end, she created an e-mail list for women to discuss these issues and a newsgroup (alt.support.breast-implant) on the topic. AA 176, ¶ 12. Like most of the 50,000 newsgroups in existence, this newsgroup consists of independent and uncensored posts by individuals from around the world. AA 180, ¶ 27, 186, ¶ 53. She often contributes posts to this and other newsgroups focused on the politics of medicine and alternative health care. AA 180, ¶ 27.

Terry Polevoy is an American doctor residing in Canada who, along with Stephen Barrett, a Pennsylvania doctor, seeks to discredit alternative medicine as part of a "Quackbuster" campaign. Exh. A at 1-2. On August 14, 2000, Rosenthal forwarded to two newsgroups an online letter written by defendant Timothy Bolen. AA 183, ¶ 39. Bolen's e-letter, which bore the heading "Sleazy Quackbuster Scam," contained an account of Polevoy's attempts to cancel an alternative medicine radio show in Canada by using "scare tactics, stalking, and intimidation techniques" against its host. AA 580. These posts clearly indicated that the author of the e-letter was Bolen, not Rosenthal, and they contain no endorsement by her. AA 183, ¶ 39, 578-580. Polevoy and Barrett were free to post their own messages in response to Bolen's e-letter.

Instead, Barrett threatened to sue Rosenthal unless she paid him $500 -- a demand he later increased to $2,000. AA 185, ¶ 47. Rosenthal posted another message informing the newsgroups of Barrett's threat, id, [FN 2] and refused to pay. In November 2000, Barrett, Polevoy, and their attorney filed suit against Rosenthal, Bolen and others. AA 2-116. Barrett also filed suit in Illinois against another Internet intermediary who had posted messages authored by Bolen to a website. Barrett v. Fonorow, 799 N.E.2d 916 (Ill. App. 2003).

[FN 2] Rosenthal also spoke to the radio show host, who confirmed the account in Bolen's e-letter. AA 183, ¶ 40.

On July 25, 2001, the trial court granted Rosenthal's motion to strike all claims against her. AA 117-44. The trial court concluded the speech at issue was covered by the anti-SLAPP statute and that plaintiffs had failed to show a probability of prevailing, largely because they had not established the statements were provably false and defamatory. AA 122-33, 136-40, 143. With respect to the one statement it deemed to be factual and potentially actionable, the court held that section 230 immunized Rosenthal from liability because the information was "provided by another information content provider." AA 133-36. [FN 3]

[FN 3] The court also held plaintiffs had not demonstrated actual malice or special damages. AA 136-40. In the unpublished part of its opinion, the Court of Appeal vacated these rulings as to Polevoy. Exh. A at 37-49.

[FN 4] The Court of Appeal issued an initial opinion on October 15, 2003, which it vacated November 10 after granting Rosenthal's petition for rehearing. It issued a revised opinion on January 21, which it modified on February 3.

As the panel concedes, its interpretation of section 230 conflicts with Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), the first federal case interpreting the statute. Exh. A. at 19-20. But the conflict is far more extensive than the panel suggests; its decision does not conflict just with Zeran, but with every other court that has addressed the issue -- including two California Courts of Appeal, courts in eight of the 12 federal circuits, and courts in five other states.

California thus stands alone -- the only jurisdiction in which Internet intermediaries do not enjoy federal immunity under section 230 from notice-based liability for Internet content originating from a third party. This state should not embark on this lonely course -- which will be detrimental to Internet businesses in this state and lead to more censorship of Internet speech here than in any other state, in stark contrast to our history of providing more, not less, protection to speech -- without this Court reviewing the decision. Review is necessary not only to secure uniformity of decision in this state, but to secure uniform interpretation of this national law concerning a medium of speech national in scope, and to ensure that ISPs, portals, webhosts, message boards, chat rooms and their users in California are not subject to liability barred throughout the rest of the country. See Reno v. ACLU, 521 U.S. 844, 874 n.39, 877-78 (1997) (allowing local standards to apply to speech on the Internet conflicts with Congress' intent of "'establish[ing] a uniform national standard'").

A. The Decision Conflicts With Two Prior Opinions In This State

The decision below, which holds that section 230 immunity does not preempt notice-based distributor liability, squarely conflicts with two prior decisions in this state -- Kathleen R. v. City of Livermore, 87 Cal. App. 4th 684 (2001) and Gentry v. eBay, Inc., 99 Cal. App. 4th 816 (2002). which hold that it does. This "conflict among the Courts of Appeal" compels review to "secure uniformity of decision." Peralta Community College Dist. v. Fair Employment & Housing Comm'n, 52 Cal. 3d 40, 44 (1990). Unless review is granted, this conflict will leave Internet intermediaries uncertain as to whether, and to what extent, section 230 will protect them, and thus will result in censorship of speech to avoid potential liability and the high cost of even defending ultimately meritless claims.

1. In Kathleen R., Another Division Of The First District Said Section 230 Immunity Is Not Lost If Defendant Has Notice

In 2001, Division Four of the First District became the first appellate panel in California to interpret section 230. [FN 5] In Kathleen R., Division Four held that all state law causes of action against a library for allowing minors unrestricted access to the Internet were "precluded by section 230." 87 Cal. App. 4th at 690, 692.

[FN 5] California trial courts had previously concluded Zeran properly analyzed the scope of section 230 immunity. See Aquino v. ElectriCiti Inc., 26 Med. L. Rptr. 1032, 1032 (Cal. Super. Ct. 1997); Stoner v. eBay Inc., 56 U.S.P.Q.2d 1852 (Cal. Super. Ct. 2000).

2. In Gentry, The Fourth District Agreed With Kathleen R.

In 2002, the Fourth District also rejected the argument that section 230 did not prevent an Internet defendant from being sued as a distributor. Gentry, 99 Cal. App. 4th at 822, 833 n.10. In that case, the Fourth District affirmed the sustaining of a demurrer to all causes of action against eBay by plaintiffs who alleged they had been defrauded by eBay members who, with eBay's actual or constructive knowledge, sold fake sports memorabilia via eBay. Id. at 820-21.

As pertinent here, the Fourth District rejected the very theory that the panel below adopted in this case -- that section 230 immunity did bar holding an Internet intermediary liable as a distributor with notice -- both because that theory has "been uniformly rejected by the courts that have considered [it]," id. at 835, and because it found no support for that theory in the text or the legislative history of section 230. Id. at 833 n.10.

3. The Conflict Between These Prior Opinions And The Decision Below Cannot Be Reconciled Absent Review By This Court

Despite the obvious tension between the panel's decision and Kathleen R. and Gentry, the panel said it did "not believe" its decision conflicts with Kathleen R. or Gentry. Exh. A at 18 n.9. But the panel's belief was based on the mistaken premise that neither Kathleen R. nor Gentry "needed to address, and neither addresses, the question whether the immunity accorded under section 230 applies to distributor, as well as primary publisher, liability." Id. The panel's mistaken premise, in turn, was apparently based on its failure to cite to or address the applicable passages in the prior opinions.

The decision below cites to page 692 of Kathleen R., which quoted Zeran's holding that, "'[b]y its plain language, § 230[(c)(1)] creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user.'" 87 Cal. App. 4th at 692 (quoting Zeran, 129 F.3d at 330). [FN 6] But it overlooks that, three pages later, Kathleen R. expressly rejected the argument that an exception for notice-based (i.e., distributor) liability could be judicially carved out of section 230's broad grant of immunity. Id. at 695 & n.3.

[FN 6] All emphasis are added unless otherwise noted.

The Zeran case holds that section 230(c)(1) immunity extends to distributor, as well as publisher, liability for defamation, and thus that an interactive computer service cannot be held liable merely because it has notice of a potentially defamatory statement on its service. (Zeran v. America Online, Inc., supra, 129 F.3d at pp. 331-334.) The Zeran court reasoned among other things that "liability upon notice [would] reinforce[] service providers' incentives to restrict speech," and thereby contravene section 230's aim of promoting the continued development of the Internet. (Zeran, at p. 333.) This same conclusion precludes treating respondent as a distributor of obscenity or other harmful matter merely because it has notice that such matter may be transmitted through its library computers.

The decision below cites to page 830 of Gentry, which cites seven other cases, including Kathleen R., for the proposition that "[o]ther courts have applied Zeran's reasoning to bar not only defamation claims, but other tort causes of action asserted against interactive service providers." 99 Cal. App. 4th at 830. But it overlooked the more pertinent passages in Gentry, which include the Fourth District's conclusion that no form of liability could be imposed on eBay that would hold it "responsible for content originating from other parties" because that "would be treating it as the publisher, viz., the original communicator, contrary to Congress expressed intend under section 230(c)(1) and (e)(3)." Id. at 831.

As Gentry goes on to explain, this conclusion compelled the Fourth District to expressly reject the plaintiffs' and Attorney General's attempts to impose notice-based distributor liability on eBay -- the very form of liability imposed by the decision below -- because, under this theory, once a distributor has notice it is treated as the publisher of the content, and Congress in section 230 barred treating an Internet intermediary as the publisher of another's content under any state law theory of liability. Id. at 835.

The theory that the Fourth District rejected is, of course, the very theory of liability that Division Two of the First District imposed in this case. It is self-evident that the Fourth District's rejection of this theory of liability in the cyber-context, and its conclusion that it is preempted and prohibited by section 230, cannot co-exist with the panel's unprecedented adoption of this theory of liability in the cyber-context and its conclusion that this theory is not preempted or prohibited by section 230.

Any conceivable doubt on this score is erased by footnote 10 in Gentry -- also overlooked by the decision below -- in which the Fourth District considered and rejected the Attorney General's arguments as to why, in his view, section 230 did not preempt notice-based liability:

[T]he Attorney General argues we must reject Zeran and its progeny and hold it does not immunize interactive computer service providers that act as distributors, that is, who publish information that they know to be false, fraudulent, defamatory, obscene, unlawful or otherwise objectionable. We are of the view that the very language used by Congress in stating section 230's goals reflects the breadth of the statute's purpose, i.e., "to promote the continued development of the Internet and other interactive computer services and other interactive media" and to "preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulations." (§ 230(b)(1), (2).) Such language does not reflect the limitations proposed by the Attorney General. The plain effect of Congress's words is to shelter service providers for providing access to another's offensive or objectionable information: "any information provided by another ...." (§ 230(c)(1).)

As this passage illustrates, it is not just the result in Gentry that squarely conflicts with the decision below, but also its reasoning. The same language the panel below said did not manifest a clear congressional intent to pre-empt notice-based, or distributor, liability, see Exh. A at 23, the Fourth District said did manifest such an intent. Moreover, the Fourth District said the plain terms of the statute did not allow a court to do exactly what the panel did -- judicially carve out an exception to section 230's otherwise-broad grant of immunity for distributors, who are, as Gentry explains, merely a sub-category of publishers. 99 Cal. App. 4th at 833 n.10.

Had the Court of Appeal followed Gentry and Kathleen R., it would have been compelled to affirm the trial court on the ground that Rosenthal was immune under section 230 from any notice-based theory of liability. As a result of its failure to do so, a conflict exists and "[t]he Court of Appeal's refusal to follow [Gentry and Kathleen R.]" warrants "review to secure uniformity of decision" and uniform interpretation of section 230. Mutual Life Ins. Co. v. City of Los Angeles, 50 Cal. 3d 402, 407 (1990).

B. The Decision Conflicts With All Prior Opinions In The Country

The conflict between the decision below and the uniform consensus of federal authorities interpreting this federal statute also compels review by this Court for at least two reasons.

First, this is not an issue on which federal authorities are split, and thus not a case in which the Court of Appeal simply placed California in one camp on an unsettled issue. To the contrary, its decision conflicts with decisions in two-thirds of the federal circuits and at least five states. Such a long line of uniform interpretation of a federal statute should not be broken. Conrad v. Bank of America, 45 Cal. App. 4th 133, 150 (1996). Second, the conflict with the Ninth Circuit will "invite forum shopping by creative lawyers who could not assert [a claim of distributor liability] in federal court but could in California," leading to unpredictable results and greater liability for California-based Internet intermediaries than those elsewhere who can obtain section 230 immunity by removing a case to federal court. Webb v. Superior Court, 225 Cal. App. 3d 990, 1000 (1990).