La'Tiejira v. Facebook, Inc. et al

Filing 56

OPINION AND ORDER OF DISMISSAL, mooting 33 Motion to Dismiss. ; granting 32 Motion to Dismiss. This case is DISMISSED WITH PREJUDICE. Case terminated on 8/7/2017.(Signed by Judge Melinda Harmon) Parties notified.(jdav, 4)

United States District Court
Southern District of Texas

ENTERED

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PAREE LA’TIEJIRA,
Plaintiff,
VS.
FACEBOOK, INC., MARK
ZUCKERBERG, KYLE ANDERS AND
FICTITIOUS DEFENDANTS A,B,C,
Defendants.

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§
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§
§
§
§
§
§
§

August 08, 2017
David J. Bradley, Clerk

Civ. A. H-16-2574

OPINION AND ORDER OF DISMISSAL
Pending before the Court in the above referenced case,
grounded in diversity jurisdiction, alleging defamation/libel,
breach of implied contract based on Facebook Inc.’s bullying
policy, and intentional infliction of emotional distress, and
seeking

to

hold

unconstitutional

the

as

Communications

applied,

(“Facebook’s”)

is

and

inter

Decency
alia

Mark

Act

Facebook,

(“CDA”)
Inc.’s

Zuckerberg’s

(“Zuckerberg’s”)(collectively, “the Facebook Defendants’”) motion
to

dismiss

Plaintiff

Paree

La’Tiejira’s

(“Plaintiff’s”

or

“La’Tiejira’s”) First Amended Complaint under § 27.003 of the
Texas Citizens Participation Act (“TCPA”) (instrument #32).
Section 27.003 (“Motion to Dismiss”)

provides,

(a) If a legal action is based on, relates
to, or is in response to a party’s exercise
of the right of free speech, right to
petition, or right of association, that party
may file a motion to dismiss the legal
action.
(b) A motion to dismiss a legal action under
this section must be filed not later than the
60th day after the date of service of the
legal action. The court may extend the time
to file a motion under this section on a
showing of good cause.

-1-

(c) Except as provided by Section 27.006(b),
on the filing of a motion under this section,
all discovery in the legal action is
suspended until the court has ruled on the
motion to dismiss.
A hearing was held on the motion on August 2, 2017.
After careful review of the record and the applicable law, the
Court

concludes

interpreted

the

that

the

Facebook

law

and

applied

Defendants
it

to

the

have

correctly

facts

here,

demonstrating that their motion to dismiss all of La’Tiejira’s
claims against them under the TCPA and the CDA should be granted
with prejudice for the reasons stated below.
The First Amended Complaint (#27) asserts that Plaintiff
is

a

resident

of

Houston,

Texas;

Facebook

is

a

Delaware

corporation with its principal place of business in Menlo Park,
California; and Zuckerberg is a resident of California and cofounder and CEO of Facebook.

These facts are not contested.

Because in nearly eleventh months’ time Plaintiff was never able
to identify or find the location of Defendants Kyle Anders, A, B,
and C to serve them, and thus never able to establish subject
matter or personal jurisdiction over them, after substantial
notice the Court recently dismissed the claims against them
(#51).1
Applicable Law
The TCPA

1

Thus that portion of Facebook Defendants’ other
motion to dismiss on Federal Rule of Civil Procedure 12(b)
grounds (#33), is MOOT.
-2-

Defendants have requested that the Court address the
TCPA motion first (#32 at p.2; #33 at p.1.).
Sections 27.001-27.011 of the Texas Civil Practices and
Remedies Code Ann. (West 2011), constitute the TCPA, which “is an
anti-SLAPP statute2 that allows a motion “designed to protect the
defendant

from

having

to

litigate

meritless

cases

aimed

at

chilling First Amendment expression.” NCDR, LLC v. Mauze & Bagby,
PLLC, 745 F.3d 742, 751 (5th Cir. 2014), citing Tex. Civ. Prac. &
Rem. Code Ann. § 27.003(a).

The TCPA “protects citizens who

petition or speak on matters of public concern from retaliatory
lawsuits that seek to intimidate or silence them.”
Prac. & Rem. Code §§ 27.001-.011.

Tex. Civ.

The protection consists of the

availability of a special motion for an expedited consideration of
any suit that appears to stifle the defendant’s communication on
a matter of public concern.”
586 (Tex. 2015).

In re Lipsky, 460 S.W. 3d 579, 584,

Usually the motion “must be filed within sixty

days after the service of the legal action, although the TCPA
provides that a court can extend the filing deadline on a showing
of good cause.”

NCDR, 745 F.3d at 746, citing § 27.003(b).

2

Its

SLAPP is an acronym for a “Strategic Lawsuit Against
Public Participation”-–“abuse of defamation and similar causes of
action to chill the defendant’s participation in public
controversies.” Cuba v. Pylant, 814 F.3d 701, 704 n.1 (5th Cir.
2016). It provides a means for a defendant near the beginning of
a suit to seek dismissal of certain claims in the lawsuit. NCDR,
LLC v. Mauze & Bagby, PLLC, 745 F.3d 742, 746 & n.3 (5th Cir.
2014). See also Serafine v. Blunt, 466 S.W. 3d 352, 356 (Tex.
App.--Austin 2015)(“The purpose of the Act is ‘to encourage and
safeguard the constitutional rights of persons to petition, speak
freely, associate freely, and otherwise participate in government
to the maximum extent permitted by law and, at the same time,
protect the rights of persons to file meritorious lawsuits from
demonstrable injury. [§ 27.002]”
-3-

“purpose is to identify and summarily dispose of lawsuits designed
only to chill First Amendment rights, not to dismiss meritorious
lawsuits.”

Id.

at

589,

citing

§

27.0023

(balancing

“the

constitutional rights of persons to petition, speak freely, and
otherwise

participate

permitted

by

law”

in

government

against

“the

to

right

of

the
a

maximum
person

extent
to

file

meritorious lawsuits for demonstrable injury.”). In addition, the
statute also requires a “prima facie case,” which traditionally
means the “minimum quantum of evidence necessary to support a
rational inference that the allegation of fact is true.”

Lipsky,

460 S.W. 3d at 590, citing In re E.I. DuPont de Nemours & Co., 136
S.W. 3d 218, 223 (Tex. 2003).

See also Serafine v. Blunt, 466

S.W. 3d 352, 358 (Tex. App.--Austin June 26, 2015)(“Prima facie
evidence is evidence that, until its effect is overcome by other
evidence, will suffice as proof of a fact in issue.

In other

words, a prima facie case is one that will entitle a party to
recover

if

no

evidence

to

the

contrary

is

offered

by

the

opposition party.”)(citing Rehak Creative Services, Inc. v. Witt,
404 S.W. 3d 716, 726 (Tex. App.--Houston [14th Dist.] 2013,

3

Section 27.002 states,

The purpose of this chapter is to encourage
and safeguard the constitutional right of
persons to petition, speak freely, associate
freely,
and
otherwise
participate
in
government to the maximum extent permitted by
law and, at the same time, protect the rights
of a person to file meritorious lawsuits for
demonstrable injury.
To succeed in this goal, the TCPA offers a means for a defendant
early in a lawsuit to pursue dismissal of such First Amendment
claims in the lawsuit. NCDR, 745 F.3d at 746.
-4-

petition denied)).

Although the TCPA is a state law, it applies

to Texas law claims in a federal court sitting in diversity.
NDCR, 745 F.3d at 752-53; Brown v. Wimberly, 477 Fed. Appx. 214,
216 (5th Cir. 2012).
Section 27.003 of the Texas Civil Practice and Remedies
Code describes the triggering motion to dismiss,
(a) If a legal action is based on, relates
to, or is in response to a party’s exercise
of the right of free speech, right to
petition, or right of association, that party
may file a motion to dismiss the legal
action.
(b) a motion to dismiss a legal action under
this section must be filed not later than the
60th day after the date of service of the
legal action. The court may extend the time
to file a motion
under this section on a
showing of good cause.
(c) Except a provided by Section 27.006(b) on
the filing of a motion under this section,
all discovery in the legal action system is
suspended until the court has ruled on the
motion to dismiss.
Section 27.006, entitled “Evidence,” provides
(a) In determining whether a legal action
should be dismissed under this chapter, the
court shall consider the pleadings and
supporting and opposing affidavits stating
the fact on which the liability or defense is
based.
(b) On a motion by a party or on the court’s
own motion and on a showing of good cause,
the court may allow specified and limited
discovery relevant to the motion.
By filing such a motion to dismiss under the TCPA, a
defendant, who believes that the plaintiff’s lawsuit is a response
to the defendant’s legal exercise of his First Amendment rights,
commences a two-step process.

Id. at 586.
-5-

First the defendant

must show by a preponderance of the evidence that the plaintiff’s
cause of action “is based on, relates to, or is in response to the
[movant’s] exercise of:

(1) the right of free speech; (2) the

right to petition; or (3) the right of association.”
87, citing Tex. Civ. Prac. Rem. Code § 27.005(b).

Id. at 586-

“The ‘right of

free speech’ refers to communications related to ‘a matter of
public concern’ which is defined to include an issue related to:
‘(A) health or safety; (B) environmental, economic, or community
well-being; (C) the government; (D) a public official or public
figure; or (E) a good, product or service in the marketplace.’”
Id. at 586 n.4., citing § 27.001(3), (7)(A)-(E).

“The ‘right to

petition’ refers to a wide range of communications relating to
judicial, administrative, or other governmental proceedings.’” Id.
n.5, citing § 27.001(4).

“The ‘right of association’ refers to

people ‘collectively express[ing], promot[ing], pursu[ing], or
defend[ing] common interests.’” Id. n.6, citing § 27.001(2). If
the movant succeeds on the first step, on the second step the
burden shifts to the plaintiff to “‘establish [] by clear and
convincing evidence a prima facie case for each essential element
of the claim in question.’”

Id. at 587, citing § 27.005(c).

The

statute does not define “clear and specific evidence” and the
courts are split over its meaning.

Id. at 587.

The Texas Supreme

Court has opined,
The applicable evidentiary standard is
generally determined by the nature of the
case or the applicable claim. Criminal cases
require proof beyond a reasonable doubt, a
near certainty, whereas civil cases typically
apply
the
preponderance-of-the-evidence
standard,
that
is,
a
fact-finder’s
-6-

determination that the plaintiff’s version of
the events is more likely than not true.
Some civil claims, including some defamation
claims, elevate the evidentiary standard to
require
proof
by
clear-and-convincing
evidence. Bentley v. Bunton, 94 S.S. 3d 561,
596 (Tex. 2002). This standard requires that
the strength of the plaintiff’s proof
produces in the mind of the trier of fact a
firm belief or conviction as to the truth of
the allegation.
Id. at 589.

At the hearing counsel for the Facebook Defendants

argued that as movants they satisfied the three steps in their
analysis: (1) they showed that their the dispute with La’Tiejira
related

to

activity

dealing

with

free

speech

(defamation,

intentional infliction of emotional distress,4 implied breach of
contract)5 (2) about a matter of public concern (defamation claims
and publishing on the internet) (3) that is related to a public
figure (La’Tiejira as a adult entertainment actress who made
substantial sums of money at the time).
While
dismissed,

the

deciding
court

supporting affidavits.

if

should

the

plaintiff’s

consider

the

Id. at 587, citing

claim

should

pleadings

and

§ 27.006(a).

be
any
The

filing of the motion usually stays discovery, § 27.003(c), but the
statute also permits a court to order limited discovery relating
to the motion for “good cause” under § 27.006(b).

Within that

restricted time period, ordinarily within 150 days of service of
the underlying legal action, the court must resolve the motion,

4

Deaver v. Desai, 483 S.W. 3d 668, 677 (Tex. App.-Houston 2015).
5

Kinney v. BCG Attorney Search, Inc., No. 03-12-00579CV, 2014 WL 1432012, at *2, 13 (Tex. App.-Austin Apr. 11, 2014).
-7-

and if the defendant’s constitutional rights are implicated, the
court must dismiss the plaintiff’s claim unless the plaintiff has
successfully presented his prima facie case. Id., citing § 27.005
and §§ 27.003(b), .004(a), and .005(a).
Under the TCPA the “exercise of the right of free
speech” means “a communication made in connection with a matter of
public concern.”

Tex. Civ. Prac. & Rem. Code § 27.0001(3).

Statements

published

on

defamatory

statements

Facebook,
of

which

including
La’Tiejira

the

purportedly

complains,

are

“communications” under the TCPA. Id. § 27.001(1)(“‘Communication’
includes the making or submitting of a statement or document in
any form or medium, including oral, visual, written, audiovisual,
or

electronic.”).

The

“communications”

were

also

made

“in

connection with a matter of public concern” because communications
about ‘public figures’ are matters of public concern.
La’Tiejira

considered

herself

a

public

figure

As noted,

based

on

her

profession as an actress in the adult entertainment field who made
substantial money in signings, photographs, club appearances
dancing, adult video store appearances.
referring

to

La’Tiejira’s

career

in

These communications
adult

entertainment,

statements published on Facebook, including Anders’ allegedly
defamatory ones, are communications about issues of public concern
and arise from the exercise of the Facebook Defendants’ free
speech right to publish others’ speech on its platform.

Thus the

burden shifts to La’Tiejira to produce clear and specific evidence
supporting each element of her claims, but she has not and cannot

-8-

satisfy her burden. Her claims are foreclosed by Facebook’s terms
of service and a variety of other legal flaws.
“’A district court’s denial of [a TCPA] motion is
conclusive as to whether [the TCPA]
suit . . . .

If a trial court denies [a TCPA] motion, then the

case proceeds as it normally would.’”
plaintiff

mandates dismissal of the

may

defeat

a

Texas

NCDR, 745 F.3d at 748.

anti-SLAPP

motion

by

The

simply

constructing a prima facie case for each element of the claim.
Id. at 749, citing Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c).
The purpose of a TCPA is different from that of the underlying
action; “an anti-SLAPP motion ‘resolves a question separate from
the merits in that it finds that such merits may exist, without
evaluating whether the plaintiff’s claim will succeed.’ . . .
‘[T]he purpose of an anti-SLAPP motion is to determine whether the
defendant is being forced to defend against a meritless claim,’
not to determine whether the defendant actually committed the
relevant tort.’”

Id. (citations omitted).

Section 27.008 of the

Tex. Civ. Prac. & Rem. Code Ann., addressing “Appeal,” states,
(a) If a court does not rule on a motion to
dismiss under Section 27.003 in the time
prescribed by Section 27.005, the motion is
considered to have been denied by operation
of law and the moving party may appeal.
(b) An appellate court shall expedite an
appeal or other writ, whether interlocutory
or not, from a trial court order on a motion
to dismiss a legal action under Section
27.003 or from a trial court’s failure to
rule on that motion in the time prescribed by
Section 27.005.
Furthermore, “[b]ecause the anti-SLAPP motion is designed to
protect the defendant from having to litigate meritless cases
-9-

aimed at chilling First Amendment expression, the district court’s
denial of an anti-SLAPP motion would effectively be unreviewable
on appeal from a final judgment.’”
The CDA
Under the federal Communications Decency Act of 1996
(“CDA”), 47 U.S.C. § 230(c)(1), “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.”

The statute broadly 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 . . . .”
230(f)(2).

47 U.S.C. §

In addition it states, “No cause of action may be

brought and no liability imposed under any State or local law that
is inconsistent with this section.”

47 U.S.C. § 230(e)(3).

Thus

the CDA “provides broad tort immunity to website providers.”
Samsel v. Desoto County School Dist.,

F. Supp. 3d

, Cause

No. 3:14-CV-00113-MPM-SAA, 2017 WL 1043640, at *33 (N.D. Miss.
Mar. 17, 2017); Google, Inc. v. Hood, 822 F.3d 212, 220 (5th Cir.
2016)(§ 230 is “Congress’s grant of ‘broad immunity’ to internet
service providers ‘for all claims stemming from their publication
of information created by third parties,’ which we and other
circuits have consistently given a wide scope.”)
First Amended Complaint’s Factual Allegations
Paree La’Tiejira, a/k/a “Lady Paree,” asserts that she
is a forty-one year old biological female, born on March 19, 1975.
-10-

In 1993 Plaintiff moved to Los Angeles, California as a “business
entrepreneur pursuing a modeling career.”

#27, ¶2.

She moved to

Houston in 1995, where she has resided ever since. At present she
is unemployed, but is looking to become a model.
Before December 1999 Plaintiff sued Mark C. Carrier and
Leisure Time Entertainment in Circuit Court in Lake County,
Indiana in Civil Action No. 45CO1-9511-CT-02095, claiming that
they published false and defamatory information that she was born
a male, and she was awarded a default judgment.

#27, Ex. 1,

Findings of Fact, Conclusions Thereon and Order, Jan. 13, 2010.
Among the Findings are the following (sic):
8.
Following publication of the false and
defamatory statements by Defendants that
Plaintiff “used to be a man”, Plaintiff was
examined by Dr. Wally Zollman, a plastic
surgeon from Indianapolis, Indiana, who is
experienced
in
transgender
surgical
procedures, Dr. Zollman confirmed that
Plaintiff is a female with no signs of having
undergone transsexual surgery.
9. Dr. Mark Cones also examined Plaintiff on
a routine basis in Texas and confirmed
Plaintiff
is
a
female
with
normal
gynecological exams, and determined that
Plaintiff was once pregnant, which resulted
in miscarriage.
11. The Court hereby finds that Plaintiff is
and has been a woman since birth, has never
been a man and has never had transgender
surgical procedures performed on her.
On March 19, 2016, a person purportedly named “Kyle
Anders” posted on La’Tiejira’s Facebook page the following (sic):
‘a man that’s what you are for real you,re no
woman for sure and all the world knows that
you are a man born male you men make me sick
with all this crazy homo transtranny shit
grow up accept what God made you that is what
-11-

you are a man accept it and move the hell on
yeah yeah yeah so what
Dressing in drag wearing makeup drag queens
homos damn men cant make your mind up get you
act straight you are male stop acing like a
female be who God made you to be that’s a man
that what gets me the owner of this facebook
let any ole freak on her you got men wearing
makeup wigs cut of penis high cheek bone ex
football players wearing women clothing like
high fashion models you say you’re a model
worldwide model come on you,re the football
player I talked to in California you had some
surgery done but I know that’s you and you,re
not fooling me paree thats you I never forget
a face stop lying on facebook change your sex
to male ever one in this worlds knows that
you,re male man I do not care who you claim
to be you,re (NFL)
Who would hire you as a model needs to look
up your dress I’m sure your balls are still
there the owner of this facebook is so big he
needs to better check out these things.
Whatever.
On March 19, 2016 Plaintiff responded (sic),
Stay off my page. I do not even know who the
hell you are how can I bee a man with a
period you mut be truly sad and re-tarded to
believe that a man can have a baby and a
period stay off my page you are a complete
idiot.
That same day Plaintiff employed Facebook’s procedures
for deleting the post on her page because she did not like what it
said, because someone was harassing or bullying her, and because
such speech should not be allowed on Facebook because it is spam.
Specifically she wrote to the Facebook Complaint Department (sic),
Mark Zuckerberg All of You you need to take
that post down of me from Kyle Anders now I
asked you i,m complaining to you now! he has
me up on here for all the world to see he is
saying i,m a TRANSSEXUAL I am a woman you
need to remove that now today and today is
-12-

March 19, 2016 I do not know this person I
told him to leave me alon i,m of being lied
on abused and sent hat mail on here I am only
on here for a modeling Job now at is at deep
risk! i,m no NFL Player i,m born a girl you
are letting his person harass me threaten me
abuse me spread lies on me this is a very
hurtful thing I been through this sorry pain
before and I am tired of it all just leave me
along! what a birthday present full of pain
hurt lies and malice thanks Facebook.
Nevertheless, the post remained up for six months.
Actual malice is found when “the defendant publishes a
defamatory statement ‘with the knowledge that it was false or made
with reckless disregard of whether it was false or not.”
Times

Co.

v.

Sullivan,

376

U.S.

254,

279-80

New York

(1964)(“The

constitutional guarantees require . . . a federal rule that
prohibits

a

public

official

from

recovering

damages

for

a

defamatory falsehood relating to his official conduct unless he
proves that the statement was made with ‘actual malice’-–that is,
with knowledge that it was false or with reckless disregard of
whether it was false or not.”).

“Any one claiming to be defamed

by the communication must show actual malice, or go remediless.
This privilege extends to a great variety of subjects and includes
matters of public concern, public men, and candidates for office.”
Id. at 281-82.

To establish reckless disregard of falsity, “a

plaintiff

designate

must

‘sufficient

evidence

to

permit

the

conclusion that the defendant in fact entertained serious doubts
as to the truth of his publication.”
N.E. 2s 1101, 1107 (Ct. App. Ind. 2002).

Poyster v. Peerless, 775
“‘[R]eckless conduct is

not measured by whether a reasonably prudent man would have
published or would have investigated before publishing.’”
-13-

Id.,

citing Journal-Gazette Co. v. Bandido’s, Inc., 712 N.E. 446, 456
(Ind. 1999).
In the Indiana suit that La’Tiejira brought against Mark
Carriere and Leisure Time Entertainment, the court concluded (#41
at ¶ 9),
Defendants could not have believed the
statements they published were true because:
Plaintiff had the physical appearance of a
female; she performed in her occupation as a
female; she had previously been held out and
promoted by these Defendants to be a female;
and Defendant Carriere observed, first-hand,
Plaintiff menstruating during a filming of
scenes for Defendants’ production company.
On August 23, 2016 Plaintiff filed this lawsuit against
Facebook, Zuckerberg, and Anders. Sometime in mid-September, 2016
Facebook removed the post, approximately six months after it was
supposedly placed on her Facebook page by Kyle Anders.

She also

claims that because Facebook requires all of its users to provide
name, age, gender and a valid email address, Facebook, Inc. has
the information about Anders that she seeks, although she has not
filed motions to compel nor shown any effort to get it through
judicial process.
La’Tiejira complains that the lengthy posting violated
Facebook’s policy of protecting public figures:
We permit open and critical discussion of
people who are featured in the news or have a
large
public
audience
based
on
their
profession or chosen activities. We remove
credible threats to public figures, as well
as hate speech directed at them--just as we
do for private individuals.
Facebook also has a policy regarding bullying and harassment and
hate speech, with which it failed to comply (#27, Ex. 3):
-14-

We don’t tolerate bullying or harassment. We
allow you to speak freely on matte[r]s and
people of public interest, but we remove
content that appears to purposefully target
private individuals with the intention of
defrauding or shaming them.
The content
includes, but is not limited to:
*
Pages that identify and shame
private individuals,
*
Images altered to degrade
private individuals,
*
Photos or videos of physical
bullying posted to shame the
victim,
* Sharing person[al] information
to blackmail or harass people, and
*
Repeatedly targeting other
people
with
unwanted
friend
requests or messages
We define private individuals as people who
have neither gained news attention nor the
interest of the public by way of their
actions or public profession.
We remove content, disable accounts, and work
with law enforcement when we believe there is
a genuine risk of physical harm or direct
threats to public safety.
Although during the August 2, 2017 hearing La’Tiejira’s attorney
argued that she is not a public figure, in her briefing La’Tiejira
concedes that she may at one time, based on her former career in
adult entertainment, have been considered such a public figure
under the policy.

She also insists that Facebook and Zuckerberg

are not protected by § 230(c) of the CDA:

to warrant the immunity

provided by § 230(c), the hate speech or bullying and harassment
must be removed within “a reasonable time,” not five to six
months. She further maintains that Anders’ alleged statements and
Facebook and Zuckerberg’s failure to comply with their removal
policies for 5-6 months are not actions involving the exercise of

-15-

certain constitutional rights under the TCPA since none of the
statements are matters of public concern.
In addition to state-law claims for defamation and
libel, breach of implied contract, and intentional infliction of
emotional distress, the First Amended Complaint also asks the
Court to declare § 230 of the CDA unconstitutional as applied to
her because its blanket immunity deprives her of her First
Amendment right of access to the courts to vindicate her civil
wrong and injury caused by the Facebook Defendants’ six-month
delay in removing the defamatory statements, and seeks $16 million
in damages, including $10 million in punitive damages.
La’Tiejira insists the harm she suffered was caused
directly by Facebook and Zuckerberg’s failure to timely remove the
postings of hate speech and bullying.

If Facebook is entitled to

immunity for its failure to timely remove these hate speech posts,
in contravention to the full faith and credit provisions of the
law, in their failure to comply with their stated policies against
hate speech and bullying, and withholding and contact information
of Kyle Anders, then Plaintiff is being denied redress of her
harms caused by Facebook, Zuckerberg, and Anders.
Plaintiff maintains that the CDA, as applied under these
facts, is unconstitutional, denies Plaintiff due process and her
constitutional right of access to the courts under the first
amendment under state and federal law.
Facebook and Zuckerberg’s Motion to Dismiss First Amended
Complaint Pursuant to the TCPA (#32)

-16-

The TCPA’s purpose is to “encourage and safeguard the
constitutional rights of persons to petition, speak freely, and
otherwise

participate

in

government

to

the

maximum

extent

permitted by law and, at the same time, protect the rights of a
person to file meritorious lawsuits for demonstrable injury.”
Tex. Civ. Prac. & Rem. Code § 27.002.
In the first of the two-step analysis under the TCPA,
the

Facebook

Defendants

maintain

that

Plaintiff’s

claims

necessarily relate to the Facebook Defendants’ First Amendment
rights and are thus squarely within the scope of § 27.003(a) of
the TCPA.

Her claims concern the publication of statements by

third-party Kyle Anders and the Facebook Defendants’ decision to
permit

the

statements

to

remain

on

their

platform.

i.e.,

La’Tiejira’s claims arise directly and exclusively from Facebook’s
First Amendment right to decide what to publish and what not to
publish on its platform.

See Cruz v. Van Sickle, 452 S.W. 3d

503, 517-18 (Tex. App.--Dallas 2014); Miami Herald Publ’g Co. v.
Tornillo, 418 U.S. 241, 258 (1974)(“The choice of material to go
into a newspaper and the decisions made as to limitations on the
size and content of the paper, and treatment of public issues and
public officials--whether fair or unfair--constitute the exercise
of editorial control and judgment.”); Publius v. Boyer-Vine, No.
1:16-cv-1152-LJO-SKO, 2017 WL 772145, at *5 (E.D. Cal. Feb.
27,2017)(owner of a website has a “First Amendment right to
distribute and facilitate protected speech”); Zhang v. Baidu.com
Inc., 10

F. Supp. 3d 433, 437 (S.D.N.Y. 2014)(online publishers

have a First Amendment right to distribute others’ speech and
-17-

exercise editorial control on their platforms because “the First
Amendment’s

protections

apply

whether

or

not

a

speaker

articulates, or even has, a coherent or precise message, and
whether or not the speaker generated the underlying content in the
first place”), appeal withdrawn (2d Cir. 14-1495)(Aug. 1, 2014).
Furthermore the Facebook Defendants correctly contend
that they have established a valid defense to all of La’Tiejira
claims

under

the

27.009(a)(1),(2).

federal

CDA

Although

§

27.005(d)

La’Tiejira

and

claims

the

that

TCPA
she

§

used

Facebook’s procedures to report the offensive messages to Facebook
and asked Facebook to have them removed, it is not clear that she
actually did.

Instead, Exhibit 2 to the First Amended Complaint

(#27) demonstrates that La’Tiejira posted a comment on a Facebook
page titled, “The Complaint Department.
here.”

Id., Ex. 2 at 5.

Make your Complaints

Defendants claim that this page was

created by and is operated by some unidentified third party, not
by Facebook, and that Facebook does not receive messages through
that page or in that manner.

See #14, Declaration of Mikella

Hurley in Support of Motions to Dismiss (“Hurley Decl.”), Exs. B,
C, and D (publicly available Facebook Help Center articles titled,
“How

do

I

remove

something

posted

on

https://www.facebook.com/help/261211860580476,
blocking

and

how

do

I

block

someone?”,

https://www.facebook.com/help/168009843260943).

my
and

Timeline?”
“What

is

available

at

The offensive

messages were removed shortly after Plaintiff filed this suit
against Defendants.

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Defendants
October 31, 2016.

then

filed

their

motions

to

dismiss

on

The Court granted La’Tiejira until April 3 and

April 28, 2017 to retain counsel and respond to the motions.

On

March 24 counsel for La’Tiejira appeared and filed the new
complaint.

In the original complaint Plaintiff does not allege

that Facebook Defendants authored any statements about her gender
identity or were at all responsible for creation of the offensive
messages giving rise to this case, but only states that she
reported the contents to Facebook and told Facebook it had a duty
to remove them immediately.
unlawfully

and

caused

By failing to do so, Facebook acted

La’Tiejira

to

suffer

damages

because

“promotors, producers, and film-makers have ceased making contacts
and employment overtures,” and she was exposed to harassment and
threats.
The CDA shields the Facebook Defendants from liability
for any statements put up on an account holder’s Facebook page by
a third party: “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,” and
“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.”

47 U.S.C. § 230(c)(1)(e), (e)(3).

The CDA applies “in

all cases arising from the publication of user-generated content.”
Doe v. MySpace, 528 F.3d 413, 418 (5th Cir. 2008).
“At its core,” the CDA “bars ‘lawsuits seeking to hold
a service provider liable for its exercise of a publisher’s
traditional editorial functions--such as deciding whether to
-19-

publish, withdraw, postpone, or alter content.”

Jones v. Dirty

World Entertainment Recordings, LLC, 755 F.3d 398, 407 (6th Cir.
2014), quoting Zean v. Am. Online, Inc., 129 F.3d 327, 330 (4th
Cir. 1997.
Facebook

By immunizing interactive computer services like

from

liability

for

claims

based

on

user-generated

content, Congress sought “to promote the continued development of
the Internet and other interactive computer services . . . [and]
to preserve the vibrant and competitive free market that presently
exists for the Internet and other interactive computer services,
unfettered

by

230(b)(1), (2).

Federal

or

State

regulation.”

47

U.S.C.

§

Moreover “[p]arties complaining that they were

harmed by a Website’s publication of user-generated content have
recourse:

they may sue the third-party user who generated the

content, but not the interactive computer service that enabled
them to publish the content online.”
Given

this

clear

Congressional

MySpace, 528 F.3d at 419.

intent,

courts

construe

CDA

immunity very broadly.
The Facebook Defendants submit a list of cases bringing
claims against them under the CDA where the claims were based on
an alleged failure to prevent or remove unlawful, user-generated
content and in which the courts have routinely rejected the claims
against the Facebook Defendants. See e.g., Klayman v. Zuckerberg,
753 F.3d 1354, 1357-59 (D.C. Cir. 2014)(CDA barred negligence and
assault claims); Caraccioli v. Facebook, Inc., 167 F. Supp. 3d
1056, 1066 (N.D. Cal. 2016)(CDA barred claims for defamation,
invasion of privacy, intentional infliction of emotional distress,
and violation of California’s Unfair Competition Law); Sikhs for
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Justice (“SFJ”), Inc. v. Facebook, Inc., 144 F. Supp. 3d 1088,
1095-96 (N.D. Cal. 2015)(CDA barred claims for violation of civil
rights laws); Gaston v. Facebook, Inc., No. 3:12-cv-0063-ST, 2012
WL 629868, at *7 (D. Or. Feb. 2, 2012)(CDA barred claims for
defamation, invasion of privacy, and related torts), report and
recommendation adopted, 2012 WL 610005 (D. Or. Feb. 24, 2012).
In the instant case Facebook Defendants are entitled to
CDA immunity because (1) they are providers of an “interactive
computer

service”;

(2)

La’Tiejira’s

claims

treat

them

as

“publishers” of the purported defamatory statements; and (3) the
allegedly

defamatory

statements

information content provider.”

were

provided

by

another

47 U.S.C. § 230(c)(1); Doe v.

Bates, No. 5:05-CV-91-DF-MC, 2006 WL 3813758, at *2 (E.D. Tex.
Dec. 27, 2006).
Many
definition

for

Thus La’Tiejira’s claims are barred by the CDA.
courts

have

“interactive

held

that

computer

Facebook

satisfies

service.”

See,

the

e.g.,

Klayman, 753 F.3d at 1357; Caraccioli, 167 F. Supp. 3d at 1065;
Sikhs for Justice, 144 F. Supp. 3d at 1093.

The Klayman

court,

753 F.3d at 1357-58, held that Zuckerberg in his role as CEO of
Facebook is entitled to immunity under the CDA as a “provider” of
interactive computer services. Thus the first requirement for CDA
immunity has been satisfied, and Plaintiff does not disagree.
La’Tiejira’s claims against the Facebook Defendants
treat them as publishers of allegedly defamatory statements about
Plaintiff’s gender identity.

When a claim treats a provider as a

publisher of user-generated content, what matters is whether the
cause of action inherently requires the court to treat the
-21-

defendant as the ‘publisher or speaker’ of content provided by
another,”

i.e.,

whether

the

duty

the

plaintiff

alleges

the

defendant violated derives from the defendant’s status or conduct
as a ‘publisher or speaker.’
precludes liability.”
1102 (9th Cir. 2009).
and

deletion

of

If it does, section 230(c)(1)

Barnes v. Yahoo!, Inc., 570 F.3d 1096,
For instance, “the monitoring, screening,
[user-generated]

content”

“quintessentially related to a publisher’s role.”

are

actions

Green v. Am.

Online (AOL), 318 F,3d 465, 471 (3d Cir. 2003); see also Klayman,
753 F.3d at 1359 (“indeed, the very essence of publishing is
making the decision whether to print or retract a given piece of
content--the very actions for which Klayman seeks to hold Facebook
liable.”). Thus “any activity that can be boiled down to deciding
whether to exclude material that third parties seek to post online
is perforce immune under section 230.”

Fair Housing Council of

San Fernando Valley v. Roommates.com, LLC, 521 F.3d 1157, 1170 (9th
Cor. 2009).
In the instant case all of La’Tiejira’s claims seek to
hold the Facebook Defendants liable for decisions about the
monitoring, screening, and deletion of user-generated contentspecifically the allegedly defamatory message posted by Defendant
Anders.

First Am. Complaint at 20-21, ¶¶ 20-21 ¶¶ V.a.4,6,9,10

Thus the second requirement of CDA immunity is met. The offensive
messages in dispute were allegedly authored by third-party Kyle
Anders, satisfying the third element of CDA immunity.
Furthermore, CDA immunity “applies even after notice of
the potentially unlawful nature of the third-party content.”
-22-

Universal Comm’n Sys., Inc. v. Lycos, Inc., 478 F.3d 412, 420 (1st
Cir.

2007);

see

also

Dirty

World

Entm’t,

755

F.3d

at

407

(explaining that the CDA bars “notice-liability defamation claims
lodged against the interactive computer service providers”).

To

demonstrate that a service provider exceeded its traditional
publisher role and thus forfeited its CDA immunity, a plaintiff
must do more than allege that the provider continued to publish
content provided by a third party; she must plausibly allege that
the provider itself authored or created the content.

See, e.g.,

Levitt v. Yelp! Inc., 765 F.3d 1123, 1135( 9th Cir. 2014)(plaintiff
must ‘plead facts tending to demonstrate that the [user-generated
content] was not, as is usual, authored by a user”).

La’Tiejira

fails to allege a single fact suggesting that the Facebook
Defendants authored the offending posts.

Therefore she has not

and cannot allege that Facebook acted as an “information content
provider” with respect to these posts and her claims against the
Facebook defendants are barred by the CDA.
Apparently acknowledging that the Facebook Defendants
are immune to her claims under the CDA, La’Tiejira

asserts but

fails to explain how the CDA denies her due process.
18,¶IV.23.

She also claims that the CDA

#27 at

“contraven[es] . . . the

full faith and credit provisions of the law,” id. at 17-18 ¶
IV.22, and infringes upon “her constitutional right of access to
the courts,” id. at 18 ¶ IV.23.

Facebook now contends that it is

not aware of a single court that has endorsed those theories in
the context of the CDA and maintains those theories are meritless.

-23-

Plaintiff’s bare assertion that applying the CDA would
deny

her

due

process

constitutional claim.

is

insufficient

to

state

a

colorable

Robertson v. Bowen, 803 F.2d 808, 810 (5th

Cir. 1986)(“mere allegation of a denial of due process” was
insufficient

to

avoid

dismissal).

Moreover

no

due

process

concerns are implicated because Plaintiff can still seek relief
from the actual wrongdoer, Anders.
Second, La’Tiejira has not and cannot explain how the
CDA violates the “full faith and credit” principle.

She seems to

argue that statements made by Marc C. Carrier and Leisure Time
Entertainment about her gender identity in the Indiana case many
years ago and found to be defamatory should apply to statements
that Anders made about her gender identity recently on her
Facebook page and serve to hold the Facebook Defendants liable for
publishing the statements by Anders.

Full faith and credit

requires courts to recognize final judgments involving the same
subject matter and parties that are either identical to or in
privity with those in the first action.

Here neither defendant

Anders nor the Facebook Defendants were parties to the Indiana
state court suit and the Indiana state court case, which did not
involve the same claims or the same defenses, including the DCA.
Full faith and credit is irrelevant.
Last, the CDA does not abridge La’Tiejira’s right of
access to the courts.

Such claims have been recognized in only

two narrow categories:

where “official action frustrates a

plaintiff . . . in preparing and filing suits” and where “official
acts”

have

caused

the

loss

or
-24-

inadequate

settlement

of

a

meritorious case.”
(2002).

Christopher v. Harbury, 536 U.S. 403, 413-14

Examples

would

include

denial-of-access

claims

in

refusing to allow a prisoner access to the law library and
imposition of filing fees on indigent plaintiffs. Moreover rightof-access claims are procedural, not substantive, and require that
the

plaintiff

first

demonstrate

a

“nonfrivolous

arguable

underlying claim.” Stephens v. Evers, 318 Fed. Appx. 477, 480 (9th
Cir. 2008); Harury, 536 U.S. at 415.

The Facebook Defendants are

private parties, not governmental entities, and their reliance on
the

CDA

does

not

constitute

“official

action”

directed

at

La’Tiejira, nor does it limit her ability to seek redress from the
actual wrongdoer, Anders,

La’Tiejira lacks a “nonfrivolous,

arguable underlying claim because her claims are barred by the
CDA.
The
demonstrate

that

satisfied here:
computer

allegations
all

the

in

the

First

requirements

Amended

for

CDA

Complaint

immunity

are

the Facebook Defendants provide an interactive

service;

La’Tiejira’s

claims

treat

the

Facebook

Defendants as publishers; and the offending statements at issue
were created and posted by Anders, not the Facebook Defendants.
Furthermore, La’Tiejira’s challenges to the CDA are meritless.
Therefore the CDA bars La’Tiejira’s claims against the Facebook
Defendants based on user-generated content.

Klayman, 753 F.3d at

1357; Caraccioli, 167 F. Supp. 3d at 1065.

Finally Facebook

Defendants are immune to La’Tiejira’s claims under the CDA.
Accordingly, the Facebook Defendants’ anti-SLAPP motion
under the TCPA has shown that La’Tiejira’s claims are based on,
-25-

related to or in response to the Facebook Defendants’ exercise of
its rights of First Amendment rights.

The burden of proof then

shifted to La’Tiejira to establish by clear and specific evidence
a prima facie case for each essential element of its claims, but
Plaintiff has not submitted any evidence. Even if she had, she is
immune from these claims under the CDA by its valid defense under
§ 203.
Accordingly, the Court
ORDERS that the Facebook Defendants’ motion to dismiss
La’Tiejira’s First Amended Complaint under § 27.003 of the Texas
Citizens Participation Act (“TCPA”) and § 27.005(d) of the CDA
(instrument #32) is GRANTED and this case is DISMISSED WITH
PREJUDICE.
SIGNED at Houston, Texas, this 7th day of August, 2017.

______________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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