New Hampshire’s Top Court Says Section 230 Shields Retweeters From Defamation Lawsuit

Section 230 isn’t just some unearned privilege enjoyed by tech companies to shield them from angry, incoherent lawsuits filed by banned white nationalists. It’s also for the little people, as Eric Goldman points out while bringing us this recent decision by the New Hampshire Supreme Court.

This ruling is a fabulous reminder that Section 230 doesn’t just protect “Big Tech”; it protects all Americans who use the Internet. Perhaps the defendants would have ultimately defeated this case anyways, but having Section 230 on their sides gave them–and all of us–a little more freedom to engage each other on social media without fearing that every casual interaction might trigger a financial cataclysm. So the next time you hear politicians claiming that Section 230 benefits only Google and Facebook, cite this case as additional proof that they misunderstand what Section 230 actually does, or they are lying, or both.

And it is a solid decision [PDF] that wastes little time determining who’s shielded from this lawsuit and why. In just seven pages, the New Hampshire court covers a lot of ground quickly, ultimately finding in favor of these defendants.

Here’s the backstory: A student defaced a school website and added some additional information about one teacher (the plaintiff in this case). The added post “suggest[ed] that [the plaintiff] was sexually perverted and desirous of seeking sexual liaisons with […] students and their parents.” Another student took a screenshot of the altered site and tweeted it. The defendants being dismissed in this ruling did nothing more than retweet the original tweet.

The trial court found that Section 230 of the CDA immunized these retweeters from the teacher’s lawsuit. The teacher disagreed, appealing the decision to the state’s top court (which is also its only appeals court).

A second pass has changed nothing. The state Supreme Court says the word “user,” found in Section 230(c)(1) means exactly that: user. These defendants were Twitter users and the immunity applies to them. The state’s top court quotes a California Supreme Court case from 2006 — one of the first to apply Section 230 immunity to individual users.

Given that Congress declared that “‘[n]o provider or user of an interactive computer service shall be treated as [a] publisher or speaker,’” the court found no basis “for concluding that Congress intended to treat service providers and users differently,” and that “the statute confers immunity on both.” Thus, the court concluded, “Congress employed the term ‘user’ to refer simply to anyone using an interactive computer service,” and held that section 230(c)(1) immunizes such individual users.

Given this background, the top court finds the lower court’s reasoning persuasive. Simply retweeting someone else’s tweet is not actionable under Section 230.

Despite the plaintiff’s assertion to the contrary, we conclude that it is evident that section 230 of the CDA abrogates the common law of defamation as applied to individual users. The CDA provides that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” 47 U.S.C. § 230(e)(3). We agree with the trial court that the statute’s plain language confers immunity from suit upon users and that “Congress chose to immunize all users who repost[] the content of others.” That individual users are immunized from claims of defamation for retweeting content that they did not create is evident from the statutory language.

That leaves the plaintiff with one option: asking the nation’s Supreme Court to take a look at this case. It seems unlikely SCOTUS would be interested in delivering a final ruling on a state-level defamation case that offers multiple options for dismissal, even if it’s Section 230 taking center stage here. Certain justices may be acting weird about 230’s immunity, but this lawsuit was a loser when the plaintiff decided to start suing people who did not create the inflammatory post observed (and distributed) by others.