Affleck v. The Harvard Crimson Inc (Harvard Crimson)
Filing
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District Judge Angel Kelley: ORDER entered. MEMORANDUM AND ORDER. For the reasons stated in the attached memorandum, the Crimson's Motion to Dismiss for Failure to State a Claim [Dkt. 11] is GRANTED and the action is DISMISSED. SO ORDERED. (CEH)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
____________________________________
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JONATHAN AFFLECK,
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Plaintiff,
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Civil Action No. 24-CV-10802-AK
v.
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THE HARVARD CRIMSON INC
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(HARVARD CRIMSON),
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Defendant.
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MEMORANDUM AND ORDER ON MOTION TO DISMISS
FOR FAILURE TO STATE A CLAIM
A. KELLEY, D.J.
Plaintiff Jonathan Affleck (“Affleck”) brings this action against Defendant The Harvard
Crimson, Inc. (“the Crimson”). According to the Complaint, the Crimson, which publishes the
Monday through Friday newspaper, The Harvard Crimson, deleted Affleck’s comments on three
articles on the Crimson’s website and then suspended Affleck’s ability to post. Affleck claims
that the Crimson’s actions violated the First Amendment of the United States Constitution,
Article XVI of the Massachusetts Constitution, and finally, federal and state laws related to
common carriage discrimination and public accommodation discrimination.
For the following reasons, the Crimson’s Motion to Dismiss for Failure to State a Claim
[Dkt. 11] is GRANTED and the action is DISMISSED.
I.
BACKGROUND
According to the Complaint, from February 7 to February 10, 2024, Affleck commented,
under two different names, 38 times across three articles on the Crimson’s website. [Dkt. 1 at 5].
The three articles focused on Palestine and the Palestinian people. Some time on February 10,
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the Crimson deleted Affleck’s comments from the comment section of the articles and suspended
Affleck’s ability to author any additional posts. Subsequently, the Crimson removed its
comment section from articles altogether. [Dkt. 12 at 9].
Affleck alleges that, in removing his comments and disabling his account, the Crimson
violated his free speech rights guaranteed by the First Amendment of the U.S. Constitution.
[Dkt. 1 at 6]. He made the same claim under Article XVI of the Massachusetts Constitution.
Affleck made two additional claims under federal and state laws. The first argues that in
deleting his messages and preventing future posts, the Crimson conducted common carriage
discrimination, while the second claim alleges public accommodation discrimination.
In its Motion to Dismiss, the Crimson offers multiple defenses. [Dkt. 11]. The Crimson
asserts an affirmative defense that Section 230 of the Communications Decency Act (“CDA”),
47 U.S.C. § 230, bars all of Affleck’s claims. The Crimson also argues that should this Court
find Section 230 inapplicable, the First Amendment actually operates to protect the Crimson’s
actions in selecting, arranging, promoting, or removing third-party content. Finally, the Crimson
argues that Affleck fails to allege the essential elements in any of his claims.
As laid out in both the Crimson’s initial Motion to Dismiss and its subsequent Reply, this
is not the first time Affleck has made nearly identical claims. [Dkts. 12; 18]. More specifically,
it is not the first time Affleck made nearly identical claims against the Crimson. Martillo v.
Twitter Inc., No. 21-CV-11119-RGS, 2021 WL 8999587 (D. Mass. Oct. 15, 2021), aff’d, 2022
WL 18862030 (1st Cir. Oct. 4, 2022), cert. denied, 143 S. Ct. 779 (2023). Although filed under
different names, both parties acknowledge that Plaintiffs Joachim Martillo and Jonathan Affleck
are the same person. [Dkt. 18] (writing in the Crimson’s reply that “Affleck’s reason for trying
to ignore Martillo probably stems from the fact that he is, in fact, plaintiff Joachim Martillo.”);
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[Dkt. 24] (writing in Affleck’s sur-reply that “Affleck ha[s] the right to refile under either [] his
legal name Affleck or his professional name Martillo[.]”).1 In the earlier case, “Martillo
[brought the] action against six private companies that operate social media platforms . . . .
Martillo represent[ed] that each defendant disabled or suspended his account on their respective
platforms because he posted content that each defendant deemed to be anti-Zionist.” Martillo,
2021 WL 8999587, at *1. Among the six private companies, Martillo/Affleck sued the Crimson.
In that case, the court conducted the analysis regarding Martillo/Affleck’s common carriage and
public accommodation discrimination claims, denying both because the companies are “not
common carriers of ‘merchandise or other property’” and are “not places of ‘public
accommodation,’” respectively, but the analysis did not end there. Id. at *1, *2. The court
continued, “even if Martillo had stated a claim under [public accommodation law] or the state
common carrier law, the defendants would be immune from such claims under the
Communications Decency Act[], 47 U.S.C. § 230.” Id. at *2. Nonetheless, Martillo/Affleck
makes similar claims against the Crimson here, which this Court must address.
II.
LEGAL STANDARD
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a
complaint must allege sufficient facts to state a claim for relief that is “plausible on its face” and
actionable as a matter of law. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Similarly, and important to the matter at hand,
courts have found that although preemption under Section 230 of the CDA is an affirmative
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The Court warns Plaintiff Affleck that the use of fictitious names is strongly disfavored and should only be used
when given leave by the court. Federal Rule of Civil Procedure 10(a) provides that “[t]he title of the complaint must
name all the parties” and Federal Rule of Civil Procedure 17(a)(1) provides that “[a]n action must be prosecuted in
the name of the real party in interest.” Although the use of pseudonyms may be allowed in “exceptional cases,” Doe
v. Mass. Inst. of Tech., 46 F.4th 61, 69-73 (1st Cir. 2022), there is a “strong presumption against the use of
pseudonyms in civil litigation.” Does 1-3 v. Mills, 39 F.4th 20, 25 (1st Cir. 2022).
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defense, “it can still support a motion to dismiss if the statute’s barrier to suit is evident from the
face of the complaint.” Duffer v. Nextdoor, Inc., 701 F. Supp. 3d 86, 88 (D. Mass. 2023)
(quoting Nat’l Ass’n of the Deaf v. Harvard Univ., 377 F. Supp. 3d 49, 68 (D. Mass. 2019)); see
also Force v. Facebook, 934 F.3d 53, 63 n.15 (2d Cir. 2019) (finding that applying Section 230 at
the pleadings stage was not premature).
Reading the complaint “as a whole,” the court must conduct a two-step, context-specific
inquiry. García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). First, the court
must perform a close reading of the complaint to distinguish factual allegations from conclusory
legal statements. Id. Factual allegations must be accepted as true, while legal conclusions are
not entitled to credit. Id. A court may not disregard properly pleaded factual allegations even if
actual proof of those facts is improbable. Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12
(1st Cir. 2011). Second, the court must determine whether the factual allegations present a
“reasonable inference that the defendant is liable for the misconduct alleged.” Haley v. City of
Boston, 657 F.3d 39, 46 (1st Cir. 2011) (citation omitted). Dismissal is appropriate when the
complaint fails to allege a “plausible entitlement to relief.” Rodriguez-Ortiz v. Margo Caribe,
Inc., 490 F.3d 92, 95 (1st Cir. 2007) (quoting Twombly, 550 U.S. 544 at 559).
Complaints brought by pro se litigants, as is the case with this action, are subjected to a
lesser scrutiny than that of complaints drafted by attorneys. Ferranti v. Moran, 618 F.2d 888,
890 (1st Cir. 1980). Courts may “intuit the correct cause of action, even if [the complaint] was
imperfectly pled,” provided the complaint contains sufficient facts to do so. Ahmed v.
Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997). However, while pro se litigants are afforded more
latitude in this realm, this latitude “cannot be taken to mean that pro se complaints are held to no
standard at all.” Sergentakis v. Channell, 272 F. Supp. 3d 221, 224-25 (D. Mass. 2017) (internal
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quotation marks and citation omitted). In other words, “pro se status does not insulate a party
from complying with procedural and substantive law.” Ahmed, 118 F.3d at 890.
III.
DISCUSSION
As in Martillo, the Defendant is immune from all claims alleged by Affleck under the
CDA. The CDA provides in relevant part: “No 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.” 47 U.S.C. § 230(c)(2). This provision “‘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 (AOL), 318 F.3d 465, 471 (3d Cir. 2003) (quoting Zeran v.
America Online, Inc., 129 F.3d 327, 330 (4th Cir.1997)).
“[C]ourts that have addressed these issues have generally interpreted Section 230
immunity broadly, so as to effectuate Congress’s ‘policy choice . . . not to deter harmful online
speech through the . . . route of imposing tort liability on companies that serve as intermediaries
for other parties’ potentially injurious messages.’” Universal Commc’n Sys., Inc. v. Lycos, Inc.,
478 F.3d 413, 418 (1st Cir. 2007) (quoting Zeran, 129 F.3d at 330-31). Instead Congress’ goal
“was to encourage service providers to self-regulate the dissemination of offensive material over
their services.” Zeran, 129 F.3d at 331. Thus, Section 230 “allows website operators to engage
in blocking and screening of third-party content, free from liability for such good-faith efforts.”
Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 18 (1st Cir. 2016).
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Under Section 230(c)(1), the Crimson is shielded from liability if: (1) the Crimson is a
provider or user of an interactive computer service, (2) the claim is based on information
provided by another information content provider, and (3) the claim would treat the Crimson as
the publisher or speaker of that information. The First Circuit has made clear, “(1) web site
operators . . . are ‘provider[s] . . . of an interactive computer service’; (2) message board postings
do not cease to be ‘information provided by another information content provider’ merely
because the ‘construct and operation’ of the web site might have some influence on the content
of the postings; and (3) immunity . . . cover[s] any claim that would treat [the website] ‘as the
publisher.’” Lycos, 478 F.3d at 419.
With this backdrop, as in Martillo in which this Plaintiff made nearly identical claims
against the Crimson, among others, the deletion of content posted by Affleck and the disabling of
his account are well within the Crimson’s traditional editorial functions protected by the CDA.
See, e.g., Duffer, 701 F. Supp. 3d at 88 (holding a website that hosts user comments immune,
under the CDA, as “removal of content is a traditional editorial function”); Spreadbury v.
Bitterroot Pub. Libr., 856 F. Supp. 2d 1195, 1198 (D. Mont. 2012) (holding that CDA immunity
applies to comment sections on newspaper websites); Collins v. Purdue Univ., 703 F. Supp. 2d
862, 878-80 (N.D. Ind. 2010) (holding that a newspaper cannot be held liable for the publication
of comments posted by third parties on its website); Miles v. Raycom Media, Inc., No. 09-CV713-LG-RHW, 2010 WL 3419438, at *3 (S.D. Miss. Aug. 26, 2010) (holding “that the
defendants are immune from liability for the allegedly defamatory third-party comments
published on its website”); see also, e.g., Sikhs for Justice, Inc. v. Facebook, 697 Fed. App’x
526, 526 (9th Cir. 2017) (holding that, under the CDA, Facebook was immune from claim that it
had wrongly blocked the plaintiff’s online content); Langdon v. Google, Inc., 474 F. Supp. 2d,
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622, 631 (D. Del. 2007) (holding that the CDA “provides Google, Yahoo, and Microsoft
immunity for their editorial decisions regarding screening and deletion [of the plaintiff’s
advertisements] from their network”) (footnote omitted). As Section 230’s barrier to suit is
evident from the face of Affleck’s complaint, regardless of the content of his posts, the Crimson
is immune from Affleck’s state and federal constitutional claims, as well as claims under federal
law. See Duffer, 701 F. Supp. 3d at 89 (citing Nat’l Ass’n of the Deaf, 377 F. Supp. 3d at 68).
Finally, 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). Section 230 expressly preempts state law claims that do not fall within the narrow
exceptions identified in Section 230(e). None of those enumerated exceptions applies in this
case. As a result, the Crimson is also immune from Affleck’s state common carriage and public
accommodation discrimination claims. Further, even if the Crimson was not immune, Affleck
has failed to state a claim, as the Crimson is “not [a] common carrier[] of ‘merchandise or other
property’” and is “not [a] place[] of ‘public accommodation,’” just as the court found in Martillo.
2021 WL 8999587 at *1, *2.
Because this Court finds that Section 230(c)(1) requires dismissal of all of Affleck’s
claims, it declines to consider the Crimson’s arguments regarding the application of the First
Amendment or Affleck’s failure to state a viable claim under state or federal law.
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IV.
CONCLUSION
For the foregoing reasons, the Crimson’s Motion to Dismiss for Failure to State a Claim
[Dkt. 11] is GRANTED and the action is DISMISSED.
SO ORDERED.
Dated: January 29, 2025
/s/ Angel Kelley
Hon. Angel Kelley
United States District Judge
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