Doe v. AOL Appellate Brief

The issue raised in this appeal is whether the provider of an interactive computer service, such as Defendant-Appellee America Online, Inc. ("AOL"), may be held liable for the allegedly tortious and harmful speech of someone who merely subscribed to and used its service. The court below, like every other court to consider this question, correctly held that AOL is immune from such liability as a matter of federal statutory law. The final judgment in favor of AOL should therefore be affirmed.

STATEMENT OF THE CASE AND FACTS

The parties do not appear to disagree about the facts that are material to this appeal.^/ The following statement highlights certain points that were omitted from or mischaracterized in Appellant’s Statement of the Case and Facts.

Nature of the Case

Plaintiff Jane Doe ("Doe"), mother and legal guardian of John Doe, a minor, brought this action against defendant Richard Lee Russell ("Russell") seeking to recover for emotional injury that John Doe allegedly suffered as a result of Russell’s sale of a videotape made by Russell that depicted Russell having sex with John Doe. The Complaint named AOL as a defendant solely on the ground that Russell, as a subscriber to AOL’s interactive computer service, allegedly had used the AOL service to communicate with people who might be interested in purchasing the videotape.

Statement of Facts

AOL "own[s] and operate[s] . . . a computer, on-line, interactive information, communication, and transaction service." (Complaint ¶ 9.^/) Subscribers to AOL’s service may communicate with each other over AOL’s service in a variety of ways, including electronic mail, message boards, and "chat rooms." Chat rooms are modern-day analogs to telephone party-lines, in which multiple subscribers may conduct real-time, computer-to-computer conversations, with the statements of each speaker momentarily appearing on the computer screens of each participant in the conversation. (See Brief of Appellant ("Doe Br.") at 3.)

The Complaint alleges that in early 1994 Defendant Russell committed sexual battery on John Doe and two other minor males and also induced John Doe and the other minors to perform sexual activities with one another. (Complaint ¶ 23.) Russell is alleged to have videotaped and photographed these sexual acts. (Id. ¶ 24.) The Complaint further alleges that Russell was an AOL subscriber in 1994 and that he communicated with other persons in AOL chat rooms "to advertise/and or solicit" and arrange for "the sale and distribution of" the videotape and photographs. (Id. ¶¶ 24-26, 28.) These chat room conversations allegedly "included the exchange of addresses and telephone numbers for purposes of the sale of . . . pornographic materials." (Id. ¶ 26.) "As a result of these discussions," Russell allegedly sent one copy of the videotape by U.S. mail (not through the AOL service) to a man in Arizona. (Id. ¶ 27.)

The Complaint does not allege that anyone at AOL ever had contemporaneous knowledge of any statement made by Russell through AOL’s service concerning child pornography in general or the John Doe videotape or photographs in particular.^/ Doe seeks to hold AOL responsible for the harm flowing from Russell’s alleged distribution of the videotape depicting John Doe on the theory that AOL allegedly was "on notice" that persons other than Russell may have used AOL’s service to discuss and market child pornography materials among themselves. (Id. ¶¶ 20-21.)

Course of Proceedings

The Complaint asserted four counts against AOL. Counts I and II purported to state claims under Florida Statutes §§ 847.011(1)(a) and 847.0135(2), respectively, which establish criminal penalties for certain conduct involving the sale or distribution of obscene materials. Count III, captioned "negligence per se," also sought to hold AOL liable for an alleged violation of § 847.0135. Count IV sounded in simple negligence. Each of these counts alleged that John Doe had suffered solely emotional distress, i.e., "humiliation, embarrassment, mental anguish, loss of the capacity for the enjoyment of life, and expense of psychological care." (Id. ¶¶ 30, 34, 39, 44.) The Complaint also asserted two separate counts against Russell for alleged violations of Sections 847.011 and 847.0135(2).

AOL moved to dismiss all claims against it on three independent grounds: (1) all of Doe's claims against AOL are barred by 47 U.S.C.A. § 230 (West Pocket Part 1997) ("Section 230"), which prohibits civil actions that seek to treat an interactive computer service provider as the "publisher or speaker" of messages transmitted over its service by a third party; (2) all of Doe's claims against AOL fail because they seek recovery only for emotional injury yet fail to meet the strict standards for recovery for such injury; and (3) Doe’s claims under Florida Statutes §§ 847.011(1)(a) and 847.0135(2) fail because these penal statutes do not create a private cause of action.

Disposition of the Trial Court

The Circuit Court granted AOL’s motion to dismiss on the basis of 47 U.S.C. § 230, without reaching the other grounds raised in AOL’s motion.

SUMMARY OF ARGUMENT

Operation of Section 230: The Circuit Court correctly held that Section 230 bars Doe’s claims against AOL. Section 230 states that "[n]o provider 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 cause of action may be brought and no liability may be imposed" under any inconsistent state law. 47 U.S.C. §§ 230(c)(1), (d)(3). As the United States Court of Appeals recently held in Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), "[b]y its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." Id. at 330. Doe’s Complaint establishes that AOL is the provider of an "interactive computer service" and that Russell’s allegedly harmful chat room conversations were "information provided by another information content provider." Doe’s suit impermissibly sought to treat AOL as the "publisher or speaker" of these communications in at least three different ways: (1) by putting AOL in the same legal position as the person who posted and thereby published the messages; (2) by requiring AOL to satisfy a standard of care that would compel it to undertake the quintessential duties of a traditional publisher; and (3) by subjecting AOL to the same legal rules that apply to traditional publishers for harm arising from their dissemination of third-party advertisements. Doe’s arguments in response are unavailing.

Section 230's preamble and legislative history fully support the Circuit Court’s ruling. They show that Congress intended to permit interactive computer services to develop unfettered by governmental regulation and to deter harmful online speech through enforcement of laws against the originators of the speech, rather than by imposing liability on providers of interactive computer services. They also reveal Congress’s goal of removing disincentives for these providers to monitor for, and limit access to, harmful third-party material -- a goal that would be undermined by making them liable for injuries caused by third-party material whenever it could be said that they had "knowledge" or "notice" of such material.

Section 230’s Temporal Reach: Section 230 governs this case even though the events at issue allegedly occurred before its enactment. This precise issue was recently decided in Zeran, in which the federal court of appeals held that Section 230 applies to all cases commenced after its enactment, regardless of when the underlying conduct occurred. Zeran, 129 F.3d at 334-35. Indeed, this case does not even present an issue of retroactivity because Section 230 "is addressed only to the bringing of a cause of action" and Doe "did not file [her] complaint until [almost one year] after § 230's immunity became effective." Id.

Even if application of Section 230 did raise an issue of retroactivity, it would still govern this case. Under Landgraf v. USI Film Products, 511 U.S. 244 (1994), Section 230 must be applied to cases involving pre-enactment events if Congress expressly prescribed that result. Congress did precisely that in Section 230 by providing that "[n]o cause of action may be brought and no liability may be imposed" under any inconsistent state law. 47 U.S.C. § 230(d)(3). Moreover, even if Congress’s intent were not clear, Section 230 would nonetheless control this case because application of the statute to bar Doe’s claims does not have a "retroactive effect" as defined in Landgraf. It is well settled that a statute that simply deprives a would-be plaintiff of an unfiled cause of action does not impair any "vested right" and therefore does not, under the basic Landgraf test, have a "retroactive effect."

Adjudication of Section 230 Defense in Context of Motion to Dismiss: Contrary to Doe’s argument, the Circuit Court’s decision was not based on any facts outside of the complaint. The only factual predicates for immunity under Section 230 -- that AOL is a provider of an "interactive computer service" and that the content at issue "was provided by another information content provider" -- are easily found within the four corners of Doe’s Complaint. Doe further errs in arguing that a court may never grant a motion to dismiss on the basis of an affirmative defense. Florida Rule of Civil Procedure 1.110(d) unequivocally permits a court to grant a motion to dismiss on the basis of an affirmative defense when the predicates for that defense are pled in the complaint, as they were here.

Dismissal with Prejudice: Doe is also incorrect in her contention that the Circuit Court erred by dismissing her claims against AOL with prejudice and without leave to amend. Florida law is clear that leave to amend should not be granted when amendment would be futile. Any amendment would be futile here because, no matter how Doe’s claims are cast, they would inevitably treat AOL as the "publisher or speaker" of Russell’s alleged statements in contravention of Section 230.

Alternative Grounds for Dismissal: This Court may also affirm the Circuit Court’s decision on the alternative, non-federal grounds AOL presented below, which the Circuit Court did not need to reach. First, Doe has failed to plead a basis for recovery for emotional injury, which is the only type of injury she claimed. Generally, a plaintiff may not recover for emotional injury unless the defendant has also caused both a physical impact and a resulting physical injury, neither of which is present here. Although there are very limited exceptions to this rule, none of them is applicable here.

Doe’s claims based on two Florida obscenity statutes also fail because these statutes do not create a private cause of action. Under Florida law, a penal statute does not create a private right of action unless the language of the statute or its legislative history indicate an intention to create such a right of action. Neither the language nor the history of the statutes relied on by Doe reflect the requisite legislative intent.

I. THE CIRCUIT COURT WAS CORRECT WHEN IT RULED THAT SECTION 230 BARS DOE’S CLAIMS AGAINST AOL BECAUSE AOL CANNOT BE TREATED AS THE "PUBLISHER OR SPEAKER" OF INFORMATION PROVIDED BY A THIRD PARTY

The principal issue presented by Doe’s appeal is whether 47 U.S.C. § 230, on which the court below relied, confers immunity on AOL in this case. (See Doe Br. at 23-31.) For the reasons set out below, Section 230 provides AOL with complete immunity from Doe’s claims.

Interactive computer services -- which enable persons to communicate with one another with unprecedented speed and efficiency through the Internet and related electronic networks -- are rapidly revolutionizing the way people and businesses share and receive information. "The Internet is a unique and wholly new medium of worldwide human communication." Reno v. ACLU, 117 S. Ct. 2329, 2334 (1997) (quotation omitted). Unlike traditional media such as television, radio, newspapers, and books, where content typically flows from a single, centralized "publisher," information and content on interactive computer services are created and disseminated by millions of individual subscribers. One of the great challenges of this revolution is to develop legal rules to govern this new medium that recognize this fundamental distinction between traditional media and interactive services. In February 1996, Congress enacted Section 230 as a response to this challenge.^/

Section 230 shields providers of interactive computer services, such as AOL, from liability for harms resulting from the dissemination of content created and transmitted by other persons. The broad immunity conferred by the statute was decisively confirmed in Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), the only appellate decision that has construed Section 230.^/ Just like Doe, the plaintiff in Zeran sought recovery from AOL under state law for injuries allegedly sustained as a result of harmful messages that a user of the AOL service had posted on the AOL service. The federal court of appeals unanimously upheld the dismissal with prejudice of Zeran’s claims, holding that, "[b]y its plain language, § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." Id. at 330 (emphasis added). Section 230 requires affirmance of the dismissal of Doe’s claims against AOL for the same reasons that dismissal was upheld in Zeran.

A. Section 230’s Plain Terms Bar Doe’s Claims Against AOL.

The Circuit Court’s conclusion that Section 230 bars Doe’s claims against AOL was compelled by the plain terms of the statute. Section 230(c)(1) states:

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.

Section 230(d)(3) further provides that

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.

These provisions operate in tandem to preempt and bar any cause of action brought under State law where three criteria are met: (1) the defendant is the "provider . . . of an interactive computer service," (2) the suit concerns "information provided by another information content provider," and (3) the plaintiff’s claims seek to treat the defendant as the "publisher or speaker" of such information. In this case, each of these criteria was well-established in the record before the Circuit Court.

1. AOL Is the Provider of an "Interactive Computer Service."

Doe does not -- and cannot -- challenge the Circuit Court’s conclusion that AOL is a "provider . . . of an interactive computer service" within the meaning of Section 230(c)(1). (Order of Dismissal at 4.^/) Section 230(e)(2) defines an "interactive computer service" to include "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." Doe’s Complaint explicitly alleged the elements necessary to establish that the AOL service meets this definition. Specifically, Doe alleged that "[t]he America Online Service . . . owned and operated by AOL, Inc. is a computer on-line, interactive information, communication, and transaction service." (Complaint ¶ 9.) See also Zeran v. America Online, Inc., 958 F. Supp. 1124, 1132 (E.D. Va.) (expressly holding that the AOL service meets statutory definition), aff’d, 129 F.3d 327 (1997).

2. The Content at Issue Was "Information Provided by Another Information Content Provider."

Doe also cannot question the Circuit Court’s conclusion that Russell’s alleged chat room communications were "information provided by another information content provider" within the meaning of Section 230(c)(1). Section 230(e)(3) defines "information content provider" as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service." Here again, Doe’s own Complaint affirmatively alleges that the statements allegedly made in AOL’s chat rooms concerning the sale or distribution of a videotape or photographs of John Doe were created and placed on AOL’s system not by AOL, but by Russell in his capacity as an AOL subscriber. (Complaint ¶¶ 25, 26, 31, 40, 45.^/) These allegations are dispositive. See Zeran, 958 F. Supp. at 1133 (treating postings by user of AOL’s service as "information provided by another information content provider").

Doe obliquely suggests, without explanation, that the chat room statements that she herself alleges originated with Russell might nonetheless be deemed to be information provided by AOL itself, rather than information provided by Russell. (Doe Br. at 29-30.) Her entire argument on this point consists of a block quotation of a footnote from the lower court decision in Zeran, in which the court (in dicta) questioned (but did not answer) whether Section 230 "might" be inapplicable if the "Defendant knew of the defamatory nature of the material and made a decision not to remove it from the network based on a malicious desire to cause harm to the party defamed." (Id. at 30 (quoting Zeran, 958 F.Supp. at 1133 n.20).) But this footnote offers Doe no refuge. In the first place, Doe does not -- and cannot -- contend that her Complaint even remotely alleged a "decision [by AOL] not to remove [Russell’s chat room statements] from the network based on a malicious desire to cause harm to [John Doe]."^/ Moreover, any qualification of immunity that might have been implied in this footnote was erased by the superseding opinion of the federal court of appeals, which held categorically that "§ 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." Zeran, 129 F.3d at 330 (emphasis added).

3. All of Doe’s Claims Against AOL Sought to Treat AOL as the "Publisher or Speaker" of Russell’s Chat Room Statements.

As the Order of Dismissal carefully set forth and as the recent decision in Zeran confirms, holding AOL liable for harm caused by Russell’s alleged chat room communications would treat AOL as the "publisher or speaker" of those communications for at least three important reasons. (See Order of Dismissal at 5-6.)

First, all of Doe’s claims sought to put AOL in precisely the same legal position as Russell, who obviously was the "publisher or speaker" of the statements that are the subject of Doe’s claims against AOL.^/ In this most basic sense, Doe has impermissibly attempted to "cast [AOL] in the same position as the party who originally posted the offensive messages," thereby treating AOL as the "publisher or speaker" of the messages. Zeran, 129 F.3d at 333. This parallelism is underscored by the Complaint itself, which sought identical relief from both AOL and Russell and alleged that both AOL and Russell simultaneously violated the same Florida statutes. The appellate decision in Zeran relied on this same reasoning in holding that Section 230 bars claims that aim to make AOL liable for online communications of a user of its service:

According to Zeran’s logic, AOL is legally at fault because it communicated to third parties an allegedly defamatory statement. This is precisely the theory under which the original poster of the offensive messages would be found liable. If the original party is considered a publisher of the offensive messages, Zeran certainly cannot attach liability to AOL under the same theory without conceding that AOL too must be treated as a publisher of the statements.

Id.

Second, Doe’s claims against AOL explicitly seek to impose on AOL, as a matter of law, a standard of care that would, in Doe’s own words, require AOL to "monitor" and "screen" all of the information transmitted over its system by third persons and to censor all "objectionable" material. (Complaint ¶¶ 15, 17, 42.) These are the quintessential duties in which traditional publishers -- such as newspapers and magazines -- engage. But, as the court of appeals ruled in Zeran, "lawsuits seeking to hold a service provider liable for its exercise of a publisher’s editorial functions -- such as deciding whether to publish, withdraw, postpone or alter content -- are barred" under Section 230. 129 F.3d at 330. Adoption of a legal standard that would require AOL to perform these functions with respect to third-party content would "impose liability on AOL for assuming the role for which § 230 specifically proscribes liability -- the publisher role." Id. at 332-33.

Third, Doe’s Complaint attempts to subject AOL to the same legal rules that apply to traditional publishers, such as newspapers and magazines, if they are sued for harm arising from their dissemination of third-party advertisements. See, e.g., Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110, 1118-19 (11th Cir. 1992), cert. denied, 506 U.S. 1071 (1993); Manual Enters., Inc. v. Day, 370 U.S. 478, 492-93 (1962). By seeking to make AOL shoulder the same responsibility that a traditional publisher bears with respect to advertisements originating with a third party, the Complaint seeks to "treat" AOL as the "publisher" of Russell’s alleged statements advertising pornographic materials in violation of Section 230.

B. Doe’s Arguments that Her Suit Does Not Seek to Treat AOL as the "Publisher or Speaker" of Russell’s Statements Are Meritless

Doe’s brief does not even mention, much less rebut, any of the three grounds on which the Circuit Court rested its ruling on the "publisher or speaker" issue. Instead, Doe’s brief sets forth a series of disjointed and meritless arguments that fundamentally misconstrue the scope and meaning of Section 230(c)(1).

Doe first contends that "the immunity clause of Section 230(c) is reserved for immunizing only ‘good faith’ efforts taken by the defendant to block and screen offensive material from its service." (Doe Br. at 23-25, 28.) This argument erroneously conflates Section 230’s "publisher or speaker" provision, 47 U.S.C. § 230(c)(1), with a separate part of Section 230 that shields interactive service providers from "liabil[ity] on account of . . . any action voluntarily taken in good faith to restrict access to or availability of" objectionable material, id. § 230(c)(2) (emphasis added). Whereas Section 230(c)(2) expressly makes "good faith" a prerequisite for immunity under that provision, Section 230(c)(1) contains no such qualifier. "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Russello v. United States, 464 U.S. 16, 23 (1983). Thus, the absence of any reference to a "good faith" element in Section 230(c)(1) requires that it be construed as lacking any such element. Doe’s attempt to inject a "good faith" element into Section 230's "publisher or speaker" immunity was rejected in Zeran, which expressly held that Section 230 immunity operates even if the interactive service provider had actual knowledge of the tortious third-party content that is at issue. Zeran, 129 F.3d at 331-33.

Doe next contends that her claims against AOL do not implicate the "publisher or speaker" immunity provision because they attempt to treat AOL not as a "publisher" of Russell’s chat room statements but as a "distributor" of those statements. (Doe Br. at 25-29.) The plaintiff in Zeran raised precisely this argument and the court of appeals rejected it:

Zeran contends that the term "distributor" carries a legally distinct meaning from the term "publisher." Accordingly, he asserts that Congress’ use of only the term "publisher" in § 230 indicates a purpose to immunize service providers only from publisher liability. He argues that distributors are left unprotected by § 230 and, therefore, that his suit should be permitted to proceed against AOL. We disagree. Assuming arguendo that Zeran has satisfied the requirements for imposition of distributor liability, this theory of liability is merely a subset, or a species, of publisher liability, and is therefore also foreclosed by § 230.

Zeran, 129 F.3d at 331-32 (emphasis added).^/

Doe further errs in suggesting that Section 230 immunity should apply only to cases, such as Zeran, where the content at issue was allegedly defamatory. (Doe Br. at 29-31.) Doe’s rationale appears to be that Section 230 was intended to apply only to defamation claims because one of the formal elements of such a claim is "publication." (Id. at 29.) This argument fails on several levels. First, it ignores the multiple ways in which imposing liability on AOL would, for reasons that have nothing to do with the formal elements of the claim, treat AOL as the "publisher or speaker" of Russell’s statements. (See supra at 12-14; Order of Dismissal at 5.) Moreover, the argument cannot be squared with the overall thrust of Section 230, which was enacted to establish federal ground rules for liability with respect to "objectionable or inappropriate online material" of all sorts. See 47 U.S.C. §§ 230(b)(4), 230(c)(2)(A). Indeed, although Section 230 makes no express reference to defamatory content, it does focus expressly and specifically on the very sort of content that is allegedly at issue in this case: material relating to "trafficking in obscenity." Id. § 230(b)(5). Lastly, the notion that the statute’s use of the term "publisher" confines its applicability to defamation actions is belied by the statute’s parallel usage of the term "speaker," which has no special relevance to defamation actions or other particular tort theories.

C. The Overall Purposes of Section 230 Confirm that AOL May Not Be Held Liable for Russell’s Statements

The overall policy objectives of Section 230, as set forth in the statute’s preamble and as evidenced in its legislative history, also compel the Circuit Court’s holding that AOL is immune from liability in this case. Imposing liability on AOL for the online statements of one of AOL’s millions of subscribers would be entirely inconsistent with these objectives.

1. Congress Enacted Section 230 to Promote the Development of Online Services and to Free Them from the Burdens of Liability for Third-Party Content.

The preamble and legislative history of Section 230 demonstrate that Congress enacted this statute to promote the continued development of vibrant discourse over the Internet and other interactive computer services by ensuring that the conduits of such discourse -- service providers such as AOL -- would not be held liable for the tortious or otherwise harmful speech of the participants in this discourse. At the same time, the preamble and history also show Congress’s awareness that this rapidly emerging electronic medium is susceptible to various harmful misuses, including trafficking in obscenity. Section 230 reflects Congress’s fundamental judgment that making the conduits liable for such harmful content would imperil the new medium and at the same time exacerbate -- not solve -- the underlying problem.

Section 230’s preamble announces a congressional finding that "interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity" and that these services have "flourished, to the benefit of all Americans, with a minimum of government regulation." 47 U.S.C. §§ 230(a)(3)-(4) (emphasis added). The preamble also declares that it is "the policy of the United States . . . to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation." Id. §§ 230(b)(2) (emphasis added). These declarations reflect Congress’s judgment that a legal regime under which interactive computer service providers could face tort liability for dissemination of content produced by others inevitably would impair the development of an emerging medium that holds great promise for the Nation. As the federal court of appeals stated recently in Zeran:

The imposition of tort liability on service providers for the communications of others represented, for Congress, simply another form of intrusive government regulation of speech. Section 230 was enacted, in part, to maintain the robust nature of Internet communication and, accordingly, to keep government interference in the medium to a minimum.

129 F.3d at 330.

Congress understood, in particular, that imposing liability on interactive service providers for harmful third-party content would be especially damaging to the continued development and growth of this medium because the volume and speed of third-party communications over this medium are simply too great to permit service providers to engage in comprehensive monitoring, review, editing, or control. During debate on the floor of the House of Representatives, one supporter of Section 230 stated:

There is no way that any of those entities, like Prodigy, can take the responsibility to edit out information that is going to be coming in to them from all manner of sources onto their bulletin board. We are talking about something that is far larger than our daily newspaper. We are talking about something that is going to be thousands of pages of information every day, and to have that imposition imposed on them is wrong. [Section 230] will cure that problem . . . .

141 Cong. Rec. H8471 (Aug. 4, 1995) (statement of Rep. Goodlatte). Because "[i]t would be impossible for service providers to screen each of their millions of postings for possible problems," providers faced with the threat of liability for each message on their systems "might choose to severely restrict the number and type of messages posted." Zeran, 129 F.3d at 331. Congress "chose to immunize service providers to avoid any such restrictive effect." Id.

In enacting Section 230, Congress was sensitive to the need to deter and restrict unlawful and harmful speech on the Internet and online services. See 47 U.S.C. § 230(b)(4). Congress decreed, however, that this need should be addressed through steps that would not involve "imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages." Zeran, 129 F.3d at 330-31. For example, Congress declared in the preamble to Section 230 that the transmission of offensive material over computer networks, including specifically "trafficking in obscenity," should be deterred and punished by "vigorous enforcement of Federal criminal laws" against the originator of such material. 47 U.S.C. § 230(b)(5). Congress also sought to encourage the development of technologies that will "maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services." Id. § 230(b)(3).

Congress’s intention that problems of harmful online speech be addressed through means other than imposing liability on interactive service providers is also revealed in the legislation’s Conference Report, which states that one of the purposes of Section 230 was to overrule the only reported case in which an interactive service provider had ever been found potentially liable for tortious third-party content. In Stratton Oakmont, Inc. v. Prodigy Service Co., No. 31063/94,1995 WL 323710, at *1, *5 (N.Y. Sup. Ct. May 24, 1995), a state trial court had concluded that Prodigy, which is another interactive service provider, could be liable for an allegedly tortious message posted by an unidentified user. The court determined that Prodigy could be made liable as the publisher of the message because it had held itself out to the public as a family-oriented service and attempted to exercise editorial control over third-party content. See id. at **3-5. As the Conference Report stated:

One of the specific purposes of [Section 230] is to overrule Stratton-Oakmont v. Prodigy and any other similar decisions which have treated such providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material. The conferees believe that such decisions create serious obstacles to the important federal policy of empowering parents to determine the content of communications their children receive through interactive computer services.

H.R. Conf. Rep. No. 104-458, at 194 (1996).

Ultimately, then, Section 230 represents a policy decision by Congress to immunize interactive service providers from liability for harmful third-party content not only to promote and preserve the development of the new electronic medium, but also out of a recognition that the threat of such liability actually represents a disincentive to responsible self-regulation. As one legislator put it, Section 230 was designed to give interactive service providers "a reasonable way to . . . help them self-regulate themselves without penalty of law." 141 Cong. Rec. H8470 (Aug. 4, 1995) (statement of Rep. Barton) (emphasis added); see also Zeran, 129 F.3d at 331 (Section 230 was designed "to encourage service providers to self-regulate the dissemination of offensive material over their services.").

2. Holding AOL Liable Here Would Defeat Congress’s Objectives.

A ruling that AOL is not immune from Doe’s claims would frustrate Section 230's core policy objectives. In particular, as recognized in Zeran, subjecting AOL to liability on the basis of allegations that it knew or should have known of the harmful nature of one of its subscriber’s communications -- what Doe now terms "distributor liability" (Doe Br. at 26) -- would "reinforce[] service providers’ incentives to . . . abstain from self-regulation." Zeran, 129 F.3d at 333. Under Doe’s proposed rule

[a]ny efforts by a service provider to investigate and screen material posted on its service would only lead to notice of potentially [harmful] material more frequently and thereby create a stronger basis for liability. Instead of subjecting themselves to further possible lawsuits, service providers would likely eschew any attempts at self-regulation.

Id.

Acceptance of Doe’s arguments also would frustrate Congress’ core objective of protecting and promoting the development of vibrant discourse over online services. Imposing liability on a service provider on the ground that it knew or should have known of the harmful nature of the content at issue would have "a chilling effect on the freedom of Internet speech." Id. Under such a rule, service providers "would face potential liability each time they received notice" of allegedly harmful content. Id. Confronted with the "impossible burden" of investigating such notices and making the "ceaseless choices of suppressing controversial speech or sustaining prohibitive liability" and the reality that they would be "subject to liability only for the publication of information, and not for its removal," service providers subject to notice-based liability "would have a natural incentive simply to remove messages upon notification, whether the contents were [tortious or otherwise unlawful] or not." Id. Such results would clearly frustrate Congress’s intent.

Courts must, of course, construe a federal statute in a manner that both accords with its plain meaning and also advances its purposes as expressed in its enacted findings and statements of policy and legislative history. See, e.g., Crandon v. United States, 494 U.S. 152, 158 (1990) ("In determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy."). Here, the only way to meet these twin objectives is to conclude that Section 230’s "publisher or speaker" provision immunizes online services from liability for harmful content originating with third parties.

II. SECTION 230 REQUIRED DISMISSAL OF DOE’S CLAIMS AGAINST AOL EVEN THOUGH THE EVENTS ALLEGED IN THE COMPLAINT PRECEDED ITS ENACTMENT

Doe’s argument that Section 230 is inapplicable because Russell’s alleged communications occurred before the statute was enacted (Doe Br. at 15-23) also fails. Section 230 was enacted on February 8, 1996, yet Doe’s suit was not filed until almost a year later, on January 23, 1997. This very issue was squarely decided in Zeran, where the communications at issue also predated enactment of Section 230 but suit was commenced after enactment. The federal court of appeals unanimously held that Section 230 applies to all cases that were commenced after its enactment, regardless of when the underlying conduct occurred. Zeran, 129 F.3d at 334-35.

Because Section 230's temporal reach is purely a matter of federal law, this Court may appropriately affirm this aspect of the Circuit Court’s decision with nothing more than a citation to Zeran. See Zorick v. Tynes, 372 So.2d 133, 139 (Fla. 1st DCA 1979) (Florida court construing federal statute "receive[s] the federal creature hide and hair, . . . [including] the federal judicial decisions . . . construing it . . . ."). In any event, as we show below, the holding of the Circuit Court that Section 230 applies to Doe’s claims, like the holding of Zeran, was indisputably correct.

A. Application of Section 230 Here Is Entirely Prospective.

Section 230 expressly 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(d)(3). Because Doe filed suit after Section 230 was enacted, application of this language to this case is really prospective in nature and no retroactivity issue is even presented. The court’s analysis in Zeran is directly on point:

Retroactivity concerns arise when a statute applies to conduct predating its enactment. Section 230 does not directly regulate the activities of interactive computer service providers like AOL. Instead, § 230 is addressed only to the bringing of a cause of action. Here, [Doe] did not file [her] complaint until [almost one year] after § 230's immunity became effective. Thus, the statute’s application in this litigation is in fact prospective.

Zeran, 129 F.3d at 334-35; see also St. Louis v. Texas Worker’s Compensation Comm’n, 65 F.3d 43, 46 (5th Cir. 1995) ("[I]ssue is not technically one of retroactivity" because statute "applied to conduct that occurred after the statute’s enactment -- the plaintiff’s filing of the complaint -- not to the allegedly discriminatory acts of the defendant."), cert. denied, 116 S. Ct. 2563 (1996); Vernon v. Cassadaga Valley Cent. Sch. Dist., 49 F.3d 886, 889-90 (2d Cir. 1995) (same).

B. Even If Application of Section 230 to This Case Raised a Retroactivity Issue, It Still Would Not Be Impermissibly Retroactive.

Even if application of Section 230 in this case did raise retroactivity concerns, the statute would still apply here. The U.S. Supreme Court set forth a two-part framework for analyzing the temporal reach of a federal statute in Landgraf v. USI Film Products, 511 U.S. 244 (1994).^/ First, if the statute "expressly prescribes" that it should apply to a suit involving events pre-dating its enactment, then courts must follow that prescription. 511 U.S. at 280; Levine v. FDIC, 651 So.2d 134, 137 (Fla. 4th DCA), review denied, 660 So.2d 713 (Fla. 1995). Second, even without such a prescription, the statute should still be applied to such a suit unless doing so would have an impermissible "retroactive effect." Landgraf, 511 U.S. at 280; Levine, 651 So.2d at 137. Under Landgraf, "retroactive effect" is a term of art that "does not describe all applications of a statute to preexisting causes of action or pending proceedings." Hunter v. United States, 101 F.3d 1565, 1570 (11th Cir. 1996), cert. denied, 117 S. Ct. 1695 (1997). Rather, "[t]he definition of ‘retroactive effect’ in this context is more narrow than that," and a court must engage in a "process of judgment" to determine whether application of a statute would have a "retroactive effect." Id.

As both the court below and the Zeran court recognized, Congress expressly prescribed that Section 230 govern any suit filed after its enactment. Moreover, even if this were not so, Section 230 still would govern Doe’s suit because its application here does not have a "retroactive effect" within the meaning of Landgraf.

1. Congress Expressly Prescribed that Section 230 Applies in Cases Involving Pre-Enactment Events.

Congress expressly provided that Section 230 govern any suit brought after its enactment, including those, such as the present case, in which the conduct at issue occurred before its enactment. By providing that "[n]o cause of action may be brought" under any inconsistent State law, 47 U.S.C. § 230(d)(3), "Congress clearly expressed its intent that the statute apply to any complaint instituted after its effective date, regardless of when the relevant conduct giving rise to the claims occurred." Zeran, 129 F.3d at 335; see also Wright v. Morris, 111 F.3d 414, 418 (6th Cir.) (statute providing that "[n]o action shall be brought with respect to prison conditions" until a prisoner has exhausted administrative remedies "expressly governs the bringing of new actions"), cert. denied, 118 S. Ct. 263 (1997); Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996) (statute providing that "[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action" if he has brought three previous frivolous actions or appeals "governs bringing new actions"). Given that Doe’s suit was filed after the effective date of Section 230, a straightforward interpretation of this provision requires the application of Section 230 to this case. See Zeran, 129 F.3d at 335.

Finding "a directive as plain as § 230(d)(3) to be ambiguous as to Congress’ intent" would constitute a "jurisprudential shift [that] would be both unwise and contrary to the Court’s admonitions in Landgraf."^/ Zeran, 129 F.3d at 335. Applying a statute to antecedent events "often serve[s] entirely benign and legitimate purposes" such as giving "comprehensive effect to a new law Congress considers salutary." Landgraf, 511 U.S. at 267-68. In this case, the plain language of Section 230 embodies Congress’ decision that "free speech on the Internet and self-regulation of offensive speech were so important that § 230 should be given immediate, comprehensive effect." Zeran, 129 F.3d at 335.

2. Application of Section 230 to This Case Does Not Have "Retroactive Effect."

Even if Congress had not expressly provided that Section 230 applies to cases involving events pre-dating its enactment, the statute still would control this case because its application to Doe’s claims does not have a "retroactive effect." Under Landgraf, application of a new statute to a pending case has a disfavored "retroactive effect" only when "it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed." Landgraf, 511 U.S. at 280; Levine, 651 So.2d at 137. As Doe concedes (Doe Br. at 21), Section 230 does not meet either the second or third prongs of this test: it neither "increase[s] [any] party’s liability" nor "impose[s] new duties" on anyone. Thus, the issue of "retroactive effect" turns on whether application of the statute would "impair" Doe’s pre-existing "rights . . . when [s]he acted."

Although Doe claims she had a vested right in her unfiled tort claim against AOL (Doe Br. at 20-23), "[n]o person has a vested right in a nonfinal tort judgment, much less an unfiled tort claim." Zeran, 129 F.3d at 335. "Because rights in tort do not vest until there is a final, unreviewable judgment, Congress abridge[s] no vested rights of the plaintiff by . . . retroactively abolishing [plaintiff’s] cause of action in tort." Hammond v. United States, 786 F.2d 8, 12 (1st Cir. 1986); see also Clausell v. Hobart Corp., 515 So.2d 1275, 1276 (Fla. 1987) (plaintiff has "no vested right in his [accrued] cause of action"); In re TMI, 89 F.3d 1106, 1113 (3d Cir. 1996), cert. denied, 117 S. Ct. 739 (1997) (even a statute that eliminates a pending tort claim does not impair a vested right); Hyundai Merchant Marine Co. v. United States, 888 F. Supp. 543, 551 (S.D.N.Y. 1995) (statute that eliminates tort claim applies to claim arising from pre-enactment events because such a claim is not a vested right until reduced to final judgment), aff’d, 75 F.3d 134 (2d Cir.), cert. denied, 117 S. Ct. 51 (1996).

Applying Section 230 in this case could not "impair rights [Doe] possessed when [s]he acted," because, like the plaintiff in Zeran, Doe "cannot point to any action [s]he [or her son] took in reliance on the law prior to § 230's enactment." Zeran, 129 F.3d at 335. The only "reliance" interest Doe can claim is that she "chose to wait" to bring her suit, rather than "tak[ing] a more aggressive approach and fil[ing] her suit earlier." (Doe Br. at 22.) Thus, Doe asserts not that she relied in any way on pre-Section 230 law in planning her conduct, but only that she has relied on her understanding of that law to determine the timing of her suit.

But this is not the type of "reliance" or "unfairness" the presumption against retroactivity protects. Indeed, the Zeran court rejected precisely the same claim of reliance. As it explained, "there . . . is a significant contrast between statutes that impose new liabilities for already-completed conduct and statutes that govern litigants’ access to courts." 129 F.3d at 335. Courts often apply statutes to suits involving pre-enactment events even though the effect is to eliminate the possibility of bringing a suit the plaintiff could have filed before passage of the statute. For example, the general rule is that a statute eliminating jurisdiction is applied to cases involving pre-enactment events, even though doing so "can deny a litigant a forum for his claim entirely." Landgraf, 511 U.S. at 292-93 (Scalia, J., concurring). Similarly, courts routinely apply changes in statutes of limitations retroactively even when doing so eliminates the plaintiff’s claim. See, e.g., Texas Worker’s Compensation Comm’n, 65 F.3d at 46; Vernon, 49 F.3d at 889-90.

Doe relies heavily on Maitland v. University of Minnesota, 43 F.3d 357 (8th Cir. 1994), for her assertion that she had a vested right in her unfiled tort claim.^/ (Doe Br. at 21-22.) But Maitland only highlights the absence of any relevant reliance by Doe. Maitland, a plaintiff with a prospective cause of action for employment discrimination, participated in a limited way in consent decree hearings involving other discrimination claims against his employer. When he did so, "the law did not even hint that [his involvement in the consent decree proceeding] would jeopardize his cause of action." 43 F.3d at 362. Congress subsequently passed a statute providing that anyone with an opportunity to present objections to a consent order resolving a claim of employment discrimination could not challenge any action taken within the scope of that order -- a statute that, if applied to Maitland, would bar his cause of action. Id. at 361. The court found that the statute should not extinguish Maitland’s claim because he had "reasonably relied" on the preexisting law and would have acted differently had he known the law would change. Id. at 363. Clearly, in sharp contrast to Maitland, Doe does not and cannot point to any actions predating the enactment of Section 230 that she took in reliance on pre-existing law and that she would have changed had she known Section 230 would be enacted.

For all of the foregoing reasons, Section 230 governed this case and required dismissal of all of Doe’s claims against AOL.

III. THE CIRCUIT COURT PROPERLY ADJUDICATED AOL’S SECTION 230 DEFENSE IN THE CONTEXT OF A MOTION TO DISMISS

Doe argues that the Circuit Court committed "clear error" because its decision was, in Doe’s view, "based upon numerous references to facts outside the four corners of the complaint as if it were considering a Motion for Summary Judgment rather than a Motion to Dismiss." (Doe Br. at 11.) While a court deciding a motion to dismiss of course must confine itself to the allegations in the complaint, Doe’s contention that the Circuit Court here did otherwise is meritless.

The conclusion that AOL is immune from Doe’s claims is a legal conclusion that flows inexorably from facts that Doe herself affirmatively pled. As demonstrated above (see supra at 10- 11), the sole factual predicates for immunity under Section 230 are (1) that the defendant is a provider of an "interactive computer service" and (2) that the content at issue was "provided by another information content provider."^/ Both of these facts are easily found within the four corners of Doe’s Complaint. The first is set out in paragraph 9 of the Complaint, which describes the "AOL Service," as a "a computer on-line, interactive information, communications and transactions service." The second is alleged throughout the Complaint, including in paragraphs 25, 26, 31, 40, and 45, in which Doe repeatedly states that all of the allegedly injurious material that appeared on AOL’s service originated with Russell. See supra at 11 n. 7.

These factual predicates, averred on the face of the Complaint, provided a complete and sufficient basis for dismissal under Section 230. These facts -- and no others -- were the factual foundation on which the Circuit Court relied in its analysis of the operation of Section 230, which is set out in its entirety in Part II of the Order of Dismissal. The Circuit Court’s own framing of the issue at the outset of Part II of the Order confirms that these were the only facts on which its legal analysis was based.

AOL is an "interactive computer service" as defined in Section 230(e)(2), and the communications allegedly made by Russell in AOL chat rooms are "information provided by another information content provider" within the meaning of Section 230(c)(1). . . . Accordingly, the issue of whether Section 230 operates to bar Doe’s claims against AOL reduces to the question of whether imposing liability under state law on the provider of an interactive computer service for injury allegedly resulting from a third party’s online communications would treat the provider as "the publisher or speaker" of those communications.

(Order of Dismissal at 4.)

Doe’s assertion that the Circuit Court rendered its immunity decision on the basis of "facts and other matters" outside the Complaint (Doe Br. at 12) is demonstrably false. The only "facts" that Doe points to are the statements, in the introductory section of the Order of Dismissal, that AOL has "millions of subscribers" who use AOL’s service "through computer modem connections" and that Russell was convicted and is serving prison sentences based on events relating to those alleged in the Complaint. (See id. at 11-12.) The Circuit Court obviously recited these facts (which Doe has not even suggested she disputes) merely to provide background and context for its decision. None of these facts played any role in, or was relevant to, the Circuit Court’s legal analysis. Where, as here, all of the facts on which the Circuit Court’s legal analysis was premised appeared on the face of the Complaint, the Circuit Court’s passing mention of other background facts that were plainly irrelevant to the court’s legal analysis does not constitute reversible error. See, e.g., Weaver v. Leon County Classroom Teachers Ass’n, 680 So.2d 478, 481 (Fla. 1st DCA 1996) (trial court commits reversible error only where it "go[es] beyond the four corners of the complaint in testing the legal sufficiency of the allegations").

The infirmity of Doe’s argument is further demonstrated by her assertion that it was impermissible for the Circuit Court’s Order to refer to the actual language of Section 230 itself, the statute’s legislative history, and the Zeran precedent. (Doe Br. at 12.) It is unquestionably appropriate -- indeed essential -- for any court considering a motion to dismiss that is based on a statute to determine what the statute means. It is absurd to suggest, as Doe does, that the most useful (and in this case only) sources for discerning a statute’s meaning -- namely its language, legislative history and pertinent judicial precedents -- are off limits on a motion to dismiss.

Ultimately, Doe falls back to arguing that it is always impermissible for a Circuit Court to grant a motion to dismiss on the basis of an affirmative defense. (See Doe Br. at 9 n.2, 10.) But even assuming that Section 230 may be characterized as an "affirmative defense,"^/ it is proper to grant a motion to dismiss on the basis of an affirmative defense when, as in this case, the predicate for that defense is pled in the complaint itself. The applicable rule of civil procedure could not be clearer:

Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under rule 1.140(b).

Fla. R. Civ. P. 1.110(d) (emphasis added).

Doe’s brief fails even to mention Rule 1.110(d). Instead, Doe erroneously relies on Staples v. Battisti, 191 So.2d 583, 585 (Fla. 3d DCA 1966), cert. denied, 196 So.2d 926 (Fla. 1967), a thirty-year-old case construing an earlier -- and long-since superseded -- version of the Florida rules. Doe cites Staples for the proposition that affirmative defenses may not be raised on a motion "even though availability may appear on the face of the complaint." (Doe Br. at 11.) Staples, however, was based on the 1954 version of former Fla. R. Civ. P. 1.8(d), which provided that affirmative defenses had to be raised initially by answer rather than motion to dismiss. Rule 1.110, which replaced former Rule 1.8 in 1967, expressly permits affirmative defenses that appear on the face of the complaint to be raised on a motion to dismiss. See Popwell v Abel, 226 So.2d 418, 421 n.5 (Fla. 4th DCA 1969); see also Fla. R. Civ. P. 1.110, Historical Note to 1967 Amendments.

Thus, under the rule now in effect, courts are prohibited from considering an affirmative defense on a motion to dismiss only "[w]here [the] motion to dismiss the complaint rests on facts outside the scope of the allegations contained in the complaint." Reed v. Sampson, 349 So.2d 684, 685 (Fla. 4th DCA 1977). Not surprisingly, then, in every case (save Staples) that Doe cites for the proposition that affirmative defenses may not be raised on a motion to dismiss, resolution of the defense required consideration of facts outside the complaint.^/ Where, as here, "the facts showing [the affirmative defense’s] application are clearly and indisputably set forth on the face of the complaint," the court should grant a motion to dismiss on that ground. Waters v. Nu-Car Carriers, Inc., 500 So.2d 224, 227 (Fla. 1st DCA 1986). See also Timmins v. Firestone, 283 So.2d 63, 65 (Fla. 4th DCA 1973).

The appropriateness of adjudicating AOL’s Section 230 defense on a motion to dismiss is further strengthened -- not weakened, as Doe erroneously asserts (Doe Br. at 10) -- by the fact that Section 230 expressly preempts state law causes of action. Florida courts have routinely granted motions to dismiss based on a defense of federal preemption. For example, this Court recently upheld a dismissal "on the basis [that] federal law . . . preempted state law by implication." Eirman v. Olde Discount Corp., 697 So.2d 865, 865 (Fla. 4th DCA), and cert. denied, 697 So.2d 865 (Fla. 1997).^/ In contrast, the preemption case on which Doe relies, Martin v. Eastern Airlines, Inc., 630 So.2d 1206 (Fla. 4th DCA 1994), concerned whether a preemption defense had been waived because the defendant had failed to raise it in its answer before raising it in a motion to dismiss filed several years into the litigation. Thus, the issue in Martin was not whether the preemption defense had been raised too early, but rather whether it had been raised too late.

Doe’s contention that the Circuit Court erred in adjudicating AOL’s Section 230 defense at the threshold is wrong not just as a matter of Florida procedural law, but as a matter of federal law as well. Section 230(d)(3) expressly prohibits any court -- federal or state -- from entertaining a state law cause of action in the face of a well-grounded claim of immunity. It creates immunity not only from the imposition of liability at the end of a case (i.e., "no liability may be imposed"), but also from having to defend against such a case in the first instance (i.e., "no cause of action may be brought"). 47 U.S.C. § 230(d)(3). As the federal court of appeals recently ruled in Zeran, Section 230 "precludes courts from entertaining claims that would place a computer service in a publisher’s role. Thus, [such] lawsuits . . . are barred." Zeran, 129 F.3d. at 330 (emphasis added). See also Weinberger v. Salfi, 422 U.S. 749, 756-57 (1975) (statute providing that "[n]o action . . . shall be brought" is jurisdictional and bars claim ab initio). In light of this federal requirement, as well as the foregoing principles of Florida law, it was not only appropriate, but necessary, for the Circuit Court to hear and decide AOL’s Section 230 defense at the earliest possible juncture.

IV. THE COMPLAINT WAS APPROPRIATELY DISMISSED WITH PREJUDICE BECAUSE AMENDMENT WOULD HAVE BEEN FUTILE

Doe is also wrong in her contention that it was error for the Circuit Court to dismiss her claims against AOL with prejudice and without leave to amend. (Doe Br. at 13-14.) Doe’s brief does not even attempt to identify, much less support, any amendment that could have remedied the fatal defects that required dismissal of each of her four claims against AOL. The Circuit Court properly concluded that Section 230 would bar any claim that Doe might attempt to assert against AOL, and therefore properly dismissed Doe’s complaint with prejudice.

While Florida courts generally are liberal in permitting amendment, even the cases that Doe herself cites make clear that leave to amend should not be granted when "no viable cause of action can be stated." Brumer v. HCA Health Servs. of Fla., Inc., 662 So.2d 1385, 1386 (Fla. 4th DCA 1995). Where "amendment would be futile," the Florida courts routinely refuse to permit amendment, and instead dismiss with prejudice. Lee v. Paxson, 641 So.2d 145, 146 (Fla. 5th DCA 1994); Hotchkiss v. FMC Corp., 561 So.2d 1261, 1263 (Fla. 2d DCA 1990). None of the cases Doe cites is to the contrary.^/

Amendment is usually futile when, as in this case, the plaintiff’s claims have foundered on grounds of federal preemption and immunity.^/ Typically, dismissals on such grounds cannot be cured by recharacterizing the theory for relief, for they are premised on a statutory regime that requires dismissal no matter how the claim is styled. As the court noted in Shearson Haydon Stone, Inc. v. Sather, 365 So.2d 187, 188 (Fla. 3d DCA 1978), cert. dismissed, 374 So.2d 100 (Fla. 1979), "[w]here the facts disclosed in the complaint show[] the action to be" preempted by federal law, the specific allegations in the complaint cannot be restyled so as to avoid preemption. Indeed, dismissal with prejudice appears to be the rule in Florida cases where state law claims are found to be preempted. See Eirman, 697 So.2d at 865; Local Union #2135, Int’l Assn. of Firefighters v. City of Ocala, 371 So. 2d 583, 585 (Fla. 1st DCA 1979).^/

The futility of amendment is especially clear here. Based on the allegations already in the Complaint, it is evident that no matter how Doe might recast her claims, they inevitably would continue to seek to hold AOL liable for harm allegedly suffered by John Doe as a result of online material that originated with Russell, a third party. Any such claim, no matter how it might be labeled or presented, would treat AOL as the "publisher or speaker" of third-party content in contravention of Section 230. As the federal appellate court unanimously held in Zeran, Section 230 plainly "creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." 129 F.3d at 328 (emphasis added).

Doe’s suggestion during oral argument below that she might amend her complaint to add an invasion of privacy claim only highlights the futility of amendment in this case. (See Transcript of Oral Argument (June 13, 1997) ("Transcript") at 37.) The most basic element of such a claim is a "publication" by the defendant of offensive private facts concerning the plaintiff. See Cape Publications, Inc. v. Hitchner, 549 So.2d 1374, 1377 (Fla.), appeal dismissed, 493 U.S. 929 (1989). Thus, a claim against AOL for invasion of privacy explicitly would treat AOL as a "publisher" of content originating with Russell. The Circuit Court therefore was eminently correct in determining that Section "230 would also preclude that action." (Transcript at 47.)

Doe has not contested the correctness of the Circuit Court’s ruling that amending the Complaint to add an invasion of privacy claim would be futile, nor has she identified any other change she could make to the Complaint to overcome Section 230. Instead, she simply suggests that she should be given carte blanche to amend, essentially because she failed to know about or consider Section 230 when she filed suit. (Doe Br. at 14.) But ignorance of the impact of Section 230’s preemptive and immunizing effects cannot alter those effects or change the fundamental fact that any claim she might bring against AOL would impermissibly seek to make AOL liable for a third party’s (Russell’s) communications. Accordingly, any amendment would necessarily have been futile, and dismissal with prejudice was required.

V. THE CIRCUIT COURT’S RULING ALSO SHOULD BE AFFIRMED ON THE ALTERNATIVE GROUNDS FOR DISMISSAL THAT AOL PRESENTED BELOW

AOL also presented the Circuit Court with independent, non-federal grounds for dismissal. If this Court were to find (contrary to all of the foregoing arguments) that the Circuit Court erred in its Section 230 ruling, it still should affirm on the basis of these alternative grounds. An appellate court must affirm "if the record as a whole discloses any reasonable basis, reason or ground on which the judgment can be supported." Turner v. Turner, 383 So.2d 700, 702 (Fla. 4th DCA) (citing Firestone v. Firestone, 263 So.2d 223 (Fla. 1972)), review denied, 392 So.2d 1381 (Fla. 1980); see also In re Estate of Yohn, 238 So.2d 290, 295 (Fla. 1970); Landis v. Allstate Ins. Co., 546 So.2d 1051, 1053 (Fla. 1989).

A. All of Doe’s Claims Alleged Only Emotional Injury Without Meeting the Strict Standards Governing Recovery for Such Injury.

All of Doe’s claims against AOL were independently subject to dismissal as a matter of Florida law because Doe failed to plead a basis for recovery for emotional injury. (See Transcript at 15-20.) Each of Doe’s four counts against AOL sought recovery only for purely emotional injuries, which the Complaint characterized as "humiliation, embarrassment, mental anguish, loss of the capacity for the enjoyment of life, and expense of psychological care." (Complaint ¶¶ 30, 34, 39, 44.)

Florida law narrowly confines the circumstances in which emotional injury is compensable. In general, there can be no recovery for such injury unless the defendant also has caused both a physical impact and a resulting physical injury. See Zell v. Meek, 665 So.2d 1048, 1052 (Fla. 1995); R.J. v. Humana of Fla., Inc., 652 So.2d 360, 362 (Fla. 1995); Gilliam v. Stewart, 291 So.2d 593, 595 (Fla. 1974). Doe conceded before the Circuit Court that her Complaint alleged neither physical impact nor physical injury. (See Transcript at 36-42.)

There are very limited exceptions to this so-called "impact rule," but none is even remotely applicable here. The principal exception permits recovery for emotional damages where there has been intentional misconduct that is "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized [society]." Metropolitan Life Ins. Co. v. McCarson, 467 So.2d 277, 278-79 (Fla. 1985) (citation omitted). Doe’s Complaint plainly did not satisfy this standard, and she did not contend otherwise below. The claims against AOL alleged no intentional misconduct on AOL’s part, but rather sounded entirely in negligence.^/ Moreover, AOL’s alleged failure to adequately monitor how a third party used its service cannot be said to be so outrageous as to be "utterly intolerable in a civilized [society]."^/

The few other exceptions to the impact rule are also very narrowly defined and entirely inapplicable to Doe’s claims against AOL. They are limited to cases of emotional injury stemming from one’s witnessing a physical trauma or death to a loved one, see Champion v. Gray, 478 So.2d 17, 18-19 (Fla. 1985) (permitting recovery only for physical injury flowing from the emotional injury) and to a handful of specific torts that have been identified as foreseeably causing "emotional damages [as] an additional ‘parasitic’ consequence of conduct that itself is a freestanding tort apart from any emotional injury." Kush v. Lloyd, 616 So.2d 415, 422 (Fla. 1992) (wrongful birth); see Miami Herald Pub’g Co. v. Brown, 66 So.2d 679, 681 (Fla. 1953) (defamation); Cason v. Baskin, 155 Fla. 198, 20 So.2d 243 (1944) (intentional invasion of privacy); Tanner v. Hartog, 696 So.2d 705 (Fla. 1997) (negligent stillbirth). The mere listing of these exceptions is sufficient to demonstrate their complete irrelevance to this case. Not surprisingly, then, Doe has never argued that any existing exception to the impact rule applies to her claims against AOL.

In the Circuit Court, therefore, Doe was reduced to arguing that an entirely new and unprecedented exception to the impact rule, tailored specially to the facts of her case, should be created -- out of whole cloth -- to permit her purely emotional claims to proceed against AOL. (Transcript at 36-42.) There is no basis for amending Florida law in this manner. In recognizing the extremely limited exceptions to the impact rule, the Florida Supreme Court always has been careful to "reaffirm [the] conclusion that the impact rule continues to serve its purpose of assuring the validity of claims for emotional or psychic damages, and [to] find that the impact rule should remain part of the law of this state." R.J., 652 So.2d at 363; see Champion, 478 So.2d at 19 n.1; Tanner, 696 So.2d at 707-08. In rejecting a similar invitation to create a new exception to the impact rule, the Florida Supreme Court said: "The consequences of such an exception are too far reaching in a modern society where it is recognized that not all wrongs can be compensated through litigation or the courts." Gonzalez v. Metropolitan Dade County Public Health Trust, 651 So.2d 673, 676 (Fla. 1995).

Given the Florida Supreme Court’s strong and repeatedly reaffirmed policy of upholding the impact rule, all of Doe’s claims against AOL were fatally defective.

B. Doe’s Claims Also Fail Because the Statutes on Which They Were Based Do Not Support a Civil Cause of Action.

Even if this Court, notwithstanding all of the foregoing, were to conclude that neither 47 U.S.C. § 230 nor Florida’s "impact rule" barred all of Doe’s claims, the Court should still affirm the dismissal of three of Doe’s four counts against AOL on yet another basis. Counts I-III of the Complaint purportedly were based on AOL’s alleged violations of Florida Statutes §§ 847.011(1)(a) and 847.0135(2). As AOL demonstrated below, each of these claims must fail because neither of these penal statutes creates a private cause of action. (Transcript at 20-22.)

Florida law rejects a "per se rule of construction that implicit in every penal statute is a concomitant civil remedy." Roger Rankin Enters., Inc. v. Green, 433 So.2d 1248, 1250 (Fla. 3d DCA 1983). The Florida Supreme Court has held that a penal statute does not create a private cause of action unless either the explicit language of the statute or its legislative history indicates a clear intention to create such a right of action and corresponding civil liability. Murthy, 644 So.2d 983 (Fla. 1994); Fischer v. Metcalf, 543 So.2d 785, 791 (Fla. 3d DCA 1989).

In analyzing whether a penal statute created a private cause of action, the Florida Supreme Court in Murthy rejected the approach previously adopted in some cases, including deJesus v. Seabord Coast Line Railroad Co., 281 So.2d 198 (Fla. 1973), on which Doe primarily relied below. (Transcript at 42-43.) The Court in Murthy observed that some courts had applied a dual inquiry into "whether the statute at issue imposed a duty to benefit a class of individuals" and whether "a class member was injured by a breach of that duty." 644 So.2d at 985. Noting that this approach had been criticized by both the U.S. Supreme Court and most Florida courts, Murthy held that "legislative intent, rather than the duty to benefit a class of individuals, should be the primary factor considered by a court in determining whether a cause of action exists when a statute does not expressly provide for one." Id.

Neither the language nor the legislative history of either criminal obscenity statute on which Doe based her statutory claims contains anything that may be read, explicitly or implicitly, to create a private cause of action. Section 847.011 contains no reference whatsoever to a private cause of action. Even a civil injunction of a violation of Section 847.011 may be sought only by the State or a municipality acting in concert with the State. Fla. Stat. Ann. § 847.011(8) (West Pocket Part 1998). This is so despite repeated amendments of the statute since 1961. "[T]he unchanged nature of the penalty, in the face of repeated reenactments and revisions, implies an intention on the part of legislature not to provide a private right of action." Fischer, 543 So.2d at 790.

The legislative history of Section 847.011 similarly provides no support for implying a private cause of action. It focuses solely on criminal justice concerns and makes no mention of any private civil remedy. See, e.g., Fla. H. Comm. on Criminal Justice, Staff Report on HB 935, "Criminal Penalty Classifications" (Apr. 13, 1971). This absence of an expressed intent by the Legislature to create civil liability is decisive evidence that no civil remedy was implicitly created. See, e.g., Murthy, 644 So. 2d at 986; Johnson v. Walgreen Co., 675 So.2d 1036 (Fla. 1st DCA 1996); Finkle v. Mayerchak, 578 So.2d 396, 398 (Fla. 3d DCA 1991); Fischer, 543 So.2d at 790.

Section 847.0135(2), on which Doe based Counts II and III of the Complaint, likewise is a penal statute that creates no private cause of action. Here again, the text of the statute contains no reference whatsoever to a private cause of action. Its legislative history is similarly silent with respect to a civil cause of action, speaking exclusively of "[c]rime prevention efforts." Fla. H. Comm. on Criminal Justice, Staff Analysis of CS/HB 731, "Computer Pornography," at 2 (Apr. 4, 1986). The Legislature noted that Section 847.0135 "supports the overall goals of Policy Statements (2) Children and (7) Public Safety," id., which explicitly include penal concerns, such as "protect[ing] the public by . . . punishing criminal behavior." Fla. Stat. Ann. § 187.201(7)(a) (West Pocket Part 1998).^/

Clearly, the legislative intent of both these penal statutes was to have the State enforce them to protect society generally from obscenity, including specifically child pornography. No private cause of action was implied, nor has one ever been found to exist by any Florida court. This fact independently required dismissal of Counts I, II, and III of the Complaint, which were dependent on these statutes.

CONCLUSION

For all of the foregoing reasons, the Circuit Court’s Order dismissing all of Doe’s claims against AOL with prejudice, and its corresponding Final Judgment, must be affirmed.

Respectfully submitted,

WILMER, CUTLER & PICKERING

Patrick J. Carome
John Payton
Lynn R. Charytan
Samir Jain
2445 M St., N.W.
Washington, D.C. 20037
(202) 663-6000

and

STEEL HECTOR & DAVIS, LLP

L. Martin Reeder, Jr.
Florida Bar Member 308684
1900 Phillips Point West
777 South Flagler Drive
West Palm Beach, Fl 33401-6198
(561) 650-7232

Of Counsel

Randall J. Boe
America Online, Inc.
22000 AOL Way
Dulles, Va 20166-9323

Attorneys for Appellee America Online, Inc.

January 7, 1998

CERTIFICATE OF SERVICE

I hereby certify that I have this ____th day of January 1998 served a copy of Appellee America Online, Inc.’s Initial Brief on

Brian W. Smith, Esq.
Smith, Russo & Alofs, P.A.
580 Village Boulevard, Suite 260
West Palm Beach, Florida 33409

by hand delivery and on

Richard Russell
2055 Mass. Ave., N.E.
St. Petersburg, Florida 33703-3403

by first class mail, postage pre-paid.

L. Martin Reeder, Jr.