Cyber Liberties
ACLU-NC Note: This is a brief submitted by the ACLU-NC on behalf of defendant Ryan Lathouwers, creator and webmaster of "Teacher Review," (www.teacherreview.com), an independent site that allows students to voice their opinions about professors at City College of San Francisco and San Francisco State University.

BERNARD A. BURK (No. 118083)

CELIA P. VAN GORDER (No. 195832)

SEAN A. PAGER (No. 202675)

HOWARD, RICE, NEMEROVSKI, CANADY,
FALK & RABKIN

A Professional Corporation

Three Embarcadero Center, 7th Floor
San Francisco, California 94111-4065
Telephone: 415/434-1600
Facsimile: 415/217-5910

ANN BRICK (No. 65296)

MARGARET C. CROSBY (No. 56812)

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.

1663 Mission Street, Suite 460

San Francisco, California 94103

Telephone: 415/621-2493

Facsimile: 415/255-1478

Attorneys for Defendant RYAN LATHOUWERS

(also erroneously sued as TEACHER REVIEW)

SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION

DANIEL CURZON BROWN, on behalf of himself and all similarly situated individuals,

Plaintiff,

v.

SAN FRANCISCO COMMUNITY COLLEGE DISTRICT; TEACHER REVIEW, business entity form unknown; RYAN LATHOUWERS, an individual; ASSOCIATED STUDENTS, entity form unknown; and DOES 1 through 25, inclusive,

Defendants.

No. 307335

Action Filed: October 21, 1999

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE AND DEMURRER OF DEFENDANT RYAN LATHOUWERS (also erroneously sued as TEACHER REVIEW)

(Code Civ. Proc. §§425.16, 430.10(e))

Date: March 29, 2000

Time: 9:30 a.m.

Dep’t: 301

Trial Date: None

    1. Introduction
    2. Teacher Review is an Internet website where students at City College of San Francisco can post and examine reviews of their instructors’ teaching performances. Defendant Ryan Lathouwers created and operates Teacher Review. The on-line forum has apparently been a welcome addition to the City College community: Since its inception in the fall of 1997, over 5,000 individual reviews of nearly 600 City College instructors have been posted to the site, and it has been visited over 100,000 times. Request for Judicial Notice of Associated Students ("AS RJN") Ex. 3; Lathouwers Decl. ¶13 & Ex. B; Request for Judicial Notice of Ryan Lathouwers ("Lathouwers RJN"). Significantly, none of the Defendants named in this action is alleged to have authored any of the content on the website to which Plaintiff Daniel Curzon Brown objects.

      Although Plaintiff has complained that the student opinions posted on Teacher Review are "usually" provided by "disgruntled (and thus pre-selected) individuals" (Lathouwers Decl. Ex. I), in fact over 60% of students’ reviews rate their instructors "Superior" or "Good." AS RJN Ex. 3. Plaintiff, who is an English professor at City College, has generally fared less well in his students’ eyes: While a number of Plaintiff’s reviews on Teacher Review are enthusiastic, the vast majority are sharply critical of his teaching performance. See id. Ex. 4. Overall, he is one of the lowest-rated of the nearly 600 City College instructors reviewed on the website. Lathouwers Decl. ¶17 & Ex. F; Lathouwers RJN ¶6.

      Whether for this or other reasons, Plaintiff has outspokenly opposed Teacher Review’s existence since its creation. He has publicly criticized its usefulness and reliability. He has complained that Teacher Review allows "[p]eople who are remedial students barely able to express themselves in basic English [to tell] people with degrees how to teach specific courses." Lathouwers Decl. ¶22 & Ex. L. He has demanded (half-facetiously, perhaps) that Teacher Review abandon its policy of allowing students to post their reviews anonymously so that teachers "may make similar public comments—by name—about students and their mannerisms, level of competence, perceived intelligence, any of their opinions expressed in class as well as their personal appearance." Id. ¶22 & Ex. I.

      All of that is a perfectly legitimate exercise of Plaintiff’s First Amendment rights, and no one has ever suggested that any greater sanction should result than the public opinion he so energetically elicits. But now he has brought the instant action to shut down Teacher Review by imposing damages and injunctive relief. And by gathering his intolerance of public criticism into a lawsuit designed to silence his critics, Plaintiff’s conduct, while all too understandable, has transgressed the limits that the Bill of Rights set long ago and that Congress and the California Legislature have recently reinforced. If the legal theories underlying Plaintiff’s claims had any merit, no on-line forum for the exchange of views on any topic interesting enough to be controversial could survive the risk of suit by self-appointed guardians of "correct" thinking like Plaintiff. Fortunately, Plaintiff’s theories lack any merit: This effort to punish Ryan Lathouwers for doing nothing more than creating a forum for the expression of others’ opinions on matters of public interest with which Plaintiff disagrees should be stricken for the SLAPP suit that it is (see Part A), and Defendant’s demurrer should also be sustained.

      There are numerous independent grounds for this relief. Plaintiff’s claims against Ryan are barred by the absolute immunity conferred on him under the Communications Decency Act, 47 U.S.C. §§230(c)(1) & (e)(3). See Part B. The effort to bring this action on behalf of a class of persons who have been "or will be" defamed by third-party postings to the Teacher Review site is so facially inconsistent with the requirements of a class action and the constitutional prohibitions against prior restraints that it must be summarily rejected. See Part C. Moreover, Plaintiff’s claims as to all but one of the statements about him of which he complains are time-barred (see Part D), and all of those statements comprise constitutionally protected opinion (see Part E). And if any statement complained of actually had any factual content, Plaintiff—who is a public official and a public figure—could not plead or prove the knowledge of falsity on Ryan’s part required to support a claim. See Part F.

    3. STATEMENT OF FACTS
    4. The Genesis Of Teacher Review. Teacher Review was born in the fall of 1997 out of the frustration that Ryan Lathouwers felt at the lack of information beyond occasional and haphazard word-of-mouth available to help City College Students choose their teachers. See Lathouwers Decl. ¶¶4-6. With an appreciation for the Internet’s accessibility and modest entry costs, as well as its freedom from the power dynamic of teacher-student relationships, Ryan—then a 24-year-old computer science major at City College—created an Internet website he called Teacher Review to allow City College students to share their opinions with one another about their instructors’ teaching performances. Id. ¶¶4, 7, 8.

      How Teacher Review Works. A visitor accessing Teacher Review’s initial interface (or "home page") can choose to see or contribute reviews of teachers at City College, or at other schools via a "link" to a separate and independent website. If the visitor chooses City College, an introductory page for that school allows the visitor to choose among a variety of content, including statistics and answers to Frequently Asked Questions ("FAQ") about the site, access to a Forum in which students may post messages of general interest regarding the school, an Event Calendar for the City College community, an online textbook exchange and, of course, teacher reviews. Id. ¶¶12-13 & Ex. A, B; Lathouwers RJN ¶¶1-2.

      A visitor wishing to read teacher reviews can search for them by instructor, department or other criteria. A visitor wishing to contribute a review is presented with a template questionnaire to complete, which asks for (among other things) information about the student (such as his or her major, educational goals and age, as well as the grade the student received in the instructor’s class), and the student’s assessment of the instructor, both in narrative form and summarized as a letter grade between "A" ("Superior") and "F" ("Failing"). Lathouwers Decl. ¶15 & Exs. C, D; Lathouwers RJN ¶¶3, 4.

      Ryan Lathouwers wrote the Guidelines that automatically appear at the beginning of the blank review template each time a visitor wishes to contribute a teacher review. The Guidelines illustrate the information Ryan wants students to submit, such as "was the teacher enthusiastic about the subject?" "what was the textbook like?" "was the teacher prepared?" and generally urges reviewers to "Think about what you would like to know about a teacher before taking a class . . . ." Lathouwers Decl. ¶15 & Ex. E; Lathouwers RJN ¶5.

      When a visitor submits a review, the application software running the website automatically marks the review with the date and time and posts it without notification to or vetting by anyone. It is then immediately available for viewing by other visitors alongside any other reviews of the same professor. Lathouwers Decl. ¶16. Neither the identity of the reviewer nor the content of the review is ever verified before posting. No verification would be possible even if Ryan wished to, as neither he nor anyone else involved in Teacher Review has access to the student records that would be required. And as the Guidelines stress, the reviews are posted anonymously. This is both because their content cannot be verified, and to encourage candor by eliminating the risk of faculty retribution or reward. Id.

      The enthusiasm with which City College students have responded to Teacher Review suggests the extent of its contribution to the community. As noted above, the site has received over 5,000 reviews of close to 600 City College instructors, and well over 100,000 user sessions to date. AS RJN Ex. 3 at 1; Lathouwers Decl. ¶13 & Ex. B; Lathouwers RJN ¶2. While the majority of the reviews posted are positive, most (though by no means all) of Plaintiff’s reviews on Teacher Review are outspokenly critical of his classroom demeanor, fairness in grading and rapport with students. Overall, he is one of the lowest-rated instructors at City College, with a cumulative "grade-point average" in his students’ reviews of 1.37 on the traditional 4-point "A" to "F" scale. Lathouwers Decl. ¶17 & Ex. F; Lathouwers RJN ¶6.

      Ryan’s Role. Ryan Lathouwers created Teacher Review, personally sustains its operations, and currently acts as its "webmaster." He wrote the application software that makes the website function, and that automatically organizes and posts reviews as they are submitted. He wrote the Disclaimers, Guidelines, and other text describing the site. He personally contracted with an "Internet presence provider," currently PacOnline.net, to "host" the website, and pays the monthly charge for that service entirely out of his personal funds. Lathouwers Decl. ¶11.

      As "webmaster," Ryan reserves the right to delete submissions he considers inconsistent with the site’s Guidelines, and Teacher Review invites visitors to contact him and bring "objectionable" content to his attention. Id. ¶15 & Ex. E; Lathouwers RJN ¶5. He has exercised this power on a few occasions. Although he has occasionally deleted a posted review, he has never edited one that remained posted on the site. And although he regularly submitted reviews of his own professors while he was enrolled at City College, he has never taken a class from Plaintiff, and had no role in writing any of the reviews that are identified in the Complaint. Lathouwers Decl. ¶24.

      Plaintiff’s Complaint. Plaintiff’s Complaint, filed in October 1999, alleges that in 1997 Ryan, with funding and other assistance from Defendants City College and its Associated Students organization, set up Teacher Review. Compl. ¶9. Plaintiff alleges that several specified comments about him contained in student reviews posted on the Teacher Review website are false and defamatory. Id. ¶11. He further claims that reviews of other City College instructors also contain false and defamatory statements (id.), and purports to bring his Complaint on behalf of a class of "All San Francisco Community College District teachers, instructors, professors, and employees who have been or will be defamed by the content of Teach [sic] Review" (id. ¶¶6-8 (emphasis added)). He pleads claims for defamation (¶¶9-16) and intentional infliction of emotional distress (¶¶17-20), and seeks compensatory and punitive damages, as well as "injunctive relief prohibiting Defendants from posting defamatory comments on the web" (¶21).

    5. ARGUMENT
    6. plaintiff’s complaint both fails to state a cause of action, and is subject to a special motion to strike under code of civil procedure section 425.16
    7. Ryan’s demurrer and motion to strike are presented in tandem with similar motions brought by Defendants City College and Associated Students, and will be heard together with them. To avoid unnecessary repetition and to save the Court time and effort, Ryan hereby joins in and incorporates by reference the particular motions, and the points and authorities in support thereof, specified below. For each of the following reasons, Plaintiff’s efforts to censor his critics fail to state a cause of action and are subject to demurrer; those efforts also amount to a classic SLAPP suit that should be stricken under Code of Civil Procedure Section 425.16.

        1. Plaintiff’s Effort To Penalize Free Expression On Matters Of Public Concern Is Properly Subject To A "Special Motion To Strike" Under Code Of Civil Procedure Section 425.16.
        2. As explained in more detail at pages 8-10 of Defendant Associated Students’ Memorandum filed January 21, 2000 ("AS MPA") and incorporated herein by reference, Section 425.16 of the Code of Civil Procedure authorizes a "special motion to strike" a complaint that improperly threatens the exercise of constitutional rights:

          "A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (Code Civ. Proc. §425.16(b)(1))

          Once a defendant has shown that a plaintiff’s claims arise from acts in furtherance of the right of free speech, the plaintiff must present detailed admissible evidence—as opposed to mere allegations and conclusions—establishing that the claims are meritorious. Evans v. Unkow, 38 Cal. App. 4th 1490, 1497-98 (1995).

          Teacher Review provides an open forum for the students of a taxpayer-funded institution of higher learning to disseminate their views about the nature and quality of the instruction they are being provided, and to debate the merits of their public education. AS RJN Ex. 1. As Associated Students explains (AS MPA at 8-10), it is difficult to imagine claims that more directly target "conduct in furtherance of the exercise of the constitutional right of . . . free speech in connection with a public issue or an issue of public interest" than Plaintiff’s. Code Civ. Proc. §425.16(e)(4).

        3. Federal Legislation Provides Ryan And Teacher Review Absolute Immunity From Plaintiff’s Claims.
        4. In 1996, Congress enacted the Communications Decency Act, which includes the special immunity provisions of 47 U.S.C. §230. The purpose of those provisions was twofold: "to maintain the robust nature of Internet communication and, accordingly, keep government interference in the medium to a minimum" (Zeran v. America Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997), cert. denied, 118 S. Ct. 2341 (1998)); and "to encourage service providers to self-regulate the dissemination of offensive material over their services" without fear of incurring liability for reserving the power to do so or for having exercised that power imperfectly (id. at 331). In adopting this legislation, Congress "made a policy choice . . . not to deter harmful online speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages." Id. at 330-31.

          Section 230 serves that purpose by providing that

          "[n]o 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" (47 U.S.C. §230(c)(1))

          and 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." (id. §230(e)(3))

          As a federal appellate court recently explained,

          "By its plain language, §230 creates a federal immunity to any cause of action that would make service providers or users liable for information originating with a third-party user of the service. Specifically, §230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions—such as deciding whether to publish, withdraw, postpone or alter content—are barred." (Zeran, 129 F.3d at 330 (emphasis added))

          1. Ryan Lathouwers Is A Statutorily Protected "Provider" And "User" Of An "Interactive Computer Service."
          2. The Complaint does not—and could not—allege that Ryan personally authored any of the reviews complained of. The sole basis on which Ryan is sued is that he created and maintains the on-line forum where third parties have posted the few reviews (out of the thousands available there) of which Plaintiff disapproves. In providing statutory immunity to those who are "providers" or "users" of an "interactive computer service," Congress defined an "interactive computer service" broadly 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 and such systems operated or services offered by libraries or educational institutions." (47 U.S.C. §230(f)(2))

            Teacher Review is just such an "interactive computer service." Congress’s explicit inclusion of libraries and educational systems—which provide hardware and software that enables access by members of the public to the host servers for myriad websites, message boards and chat rooms—makes clear that the term "interactive computer service" encompasses all of the links in the chain of participants between an end user and a host server. Here, Teacher Review is quite literally an "information system . . . that enables access by multiple users to a computer server"—specifically, access to the server that hosts Teacher Review. See Lathouwers Decl. ¶¶9-12.

            Equally plainly, Ryan Lathouwers is the "provider" of that "interactive computer service." Perhaps because its import is obvious, Congress saw no need to further define "provider" in Section 230. Given that Ryan wrote and maintains the software that presents Teacher Review, and personally contracted and pays for the space on the host server where it resides (see Lathouwers Decl. ¶11), he is—again quite literally—its "provider." See Zeran, 129 F.3d at 328-29 (deeming AOL, which served as message board’s webmaster and host, a "provider"); Blumenthal v. Drudge, 992 F. Supp. 44, 49-50 (D.D.C. 1998) (plaintiff conceded AOL, as webmaster and host, was a "provider").

            In addition to being a "provider" of an "interactive computer service," Ryan is also a "user" of such a service. The Internet presence provider that hosts Teacher Review is, under the statutory definition, as much an "interactive computer service" as is Teacher Review, providing access by Ryan and by Teacher Review’s visitors to the host server where Teacher Review is stored. See Zeran, 129 F.3d at 328-29; Blumenthal, 992 F. Supp. at 49-50. In creating and maintaining the Teacher Review website, Ryan used and uses the host’s facilities and services as well as using Teacher Review itself. See Lathouwers Decl. ¶¶9-12.

            As both a "provider" and a "user" of an "interactive computer service" who did not personally write any of the content to which Plaintiff objects, Ryan thus falls squarely within the class of actors Congress expressly chose to shield from liability under the very state tort-law claims Plaintiff asserts against him here. This result is consistent with Congress’s purpose in enacting Section 230. By providing students with a forum to debate and promote the quality of public education, Teacher Review is realizing what Congress explicitly recognized to be the Internet’s potential: making widely available "educational and informational resources" (47 U.S.C. §230(a)(1)) and "offer[ing] a forum for true diversity of political discourse . . . and myriad opportunities for intellectual activity." Id. 47 U.S.C. §230(a)(3).

          3. Section 230 Provides Ryan Absolute Immunity From All Of Plaintiff’s Claims.

          The immunity Section 230 confers is absolute, and protects service providers and users such as Ryan and Teacher Review from civil liability no matter how blatantly false or how grievously injurious a third party’s postings to their "interactive computer service" may be, no matter how well advised the service’s "provider" may have been of the falsehood or injury, and no matter how creatively the plaintiff states his claims.

          These principles are vividly illustrated by the facts of the Zeran case itself. In Zeran, an unidentified third party posted a series of messages on an America Online bulletin board, falsely advertising that Zeran was selling shirts and other items with "tasteless and offensive slogans" relating to the then-recent bombing of the federal building in Oklahoma City in which over a hundred people had died. Although Zeran had nothing whatsoever to do with the messages or the goods referred to, the messages included Zeran’s name, and invited interested buyers to call his telephone number. Zeran also alleged that he repeatedly requested that AOL remove the messages and block the third party from posting additional notices, which AOL failed to do for days on end. As a result, Zeran was publicly reviled and received literally hundreds of abusive and threatening telephone calls because of the unidentified third party’s outrageous and defamatory prank. He needed police protection against threatened violence for weeks. 129 F.3d at 329-30.

          Zeran sued AOL, seeking to hold it liable both for "publishing" or "distributing" the unidentified third party’s false statements about him, and for AOL’s failure to remove the postings and close the third party’s account quickly enough once he had brought the problem to AOL’s attention. For the reasons just described, the federal District Court held Section 230 to be an absolute bar to any liability on AOL’s part on either theory, and the Court of Appeals affirmed. Id. at 330-34.

          The application of this holding to the instant facts could hardly be clearer. Like AOL, Ryan and Teacher Review automatically post to a message board content provided by third parties without verification or review. See Lathouwers Decl. ¶16. Like the plaintiff in Zeran, Plaintiff here claims that some content posted to the service by third parties is false and defamatory, but does not claim that any named Defendant personally authored it. Id. ¶24. Even if Plaintiff’s complaints about that third-party content were correct (which for several independent reasons discussed below they are not), Section 230 would absolutely preclude Ryan’s liability on the defamation and emotional distress theories alleged in the Complaint.

          No allegation Plaintiff has made nor evidence he could adduce can avoid the sweep of Section 230’s absolute protections. Ryan’s motion to strike should be granted and his demurrer sustained forthwith.

        5. Plaintiff’s Class Allegations And Prayer for Injunctive Relief Are Facially Invalid And Improper Attempts to Impose A Prior Restraint.
        6. As explained in more detail by Associated Students (AS MPA at 17-19) and incorporated herein by reference, Plaintiff’s effort to seek relief for a class of hundreds or thousands of City College instructors "who have been or will be defamed by the content of Teacher Review" (Compl. ¶6) is so obviously fraught with proliferating, individualized determinations that it may be disposed of here as a matter of law. Ryan joins in the other Defendants’ demurrers to and motions to strike the class allegations.

          In addition, Plaintiff’s purported claims on behalf of all those who "will be defamed" on Teacher Review, and his prayer for "injunctive relief prohibiting Defendants from posting defamatory comments on the web" (id. ¶21) are flagrantly improper attempts to impose an unconstitutional prior restraint. Injunctions restraining general categories of speech, such as defamation, rather than a particular statement that has already been judicially determined to be wrongful, violate both the First Amendment and the free expression guarantees of the California Constitution. See, e.g., Alexander v. United States, 509 U.S. 544, 550-51 (1993) ("injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints"); Near v. Minnesota, 283 U.S. 697, 706 (1931) (injunction restraining future dissemination of any "malicious, scandalous or defamatory" publication held an unconstitutional prior restraint); Wilson v. Superior Court, 13 Cal. 3d 652, 656-62 (1975) (prior restraints are also forbidden by Article I, Section 2 of the California Constitution). For this additional reason, the class allegations and prayer for injunctive relief should be stricken, and the demurrer to the class claims sustained.

        7. Plaintiff’s Claims As To All But One Of The Statements About Him Are Time-Barred.
        8. The statute of limitations for each of Plaintiff’s causes of action is one year. Code Civ. Proc. §340(3) (one-year limitations period for libel and slander and for personal injury). A defamation claim accrues upon the first publication of the defamatory material. E.g., Wiener v. Superior Court, 58 Cal. App. 3d 525, 529 (1976).

          All but one of the statements Plaintiff cites as the basis for his claims (see Compl. ¶11) were published more than one year prior to October 21, 1999, the date he filed his Complaint. Based on the date "stamp" automatically affixed to a review by the website’s software at the time it is posted, the statements of which Plaintiff complains were first published on the following dates: "racist" on October 6, 1997; "Homo maniac" on January 20, 1998; "mentally ill" on January 22, 1998; "emotionally unbalanced" and "violent mood swings, irrational personal attacks on students and insane progressions of thought" on April 14, 1999. See Lathouwers Decl. ¶16; AS RJN Ex. 4 at 32, 24, 22, 12. Accordingly, claims based on all but the last of these statements are time-barred.

        9. All Of The Statements About Him Of Which Plaintiff Complains Are Constitutionally Protected Opinion.
        10. As Associated Students explains (AS MPA at 19-25), each of the statements about him of which Plaintiff complains is an expression of opinion protected by the federal and state Constitutions. While Plaintiff is clearly unhappy with the forceful and colorful manner in which many of his students have registered their distaste for his teaching style, their expression still amounts to nothing more than the personal, subjective judgments the Constitution authorizes each of us to express freely. Ryan hereby incorporates Associated Students’ detailed points and authorities by reference, and joins in its demurrer and motion to strike on this ground.

        11. Plaintiff Is A Public Official And A Public Figure, And Cannot Show The Knowledge Of Falsity Constitutionally Required To Hold Ryan Liable For The Third-Party Postings That Appear On Teacher Review.

      Associated Students also explains in detail (AS MPA at 25-30) why Plaintiff is both a "public official" and a "public figure," constitutionally requiring him to plead and prove by clear and convincing evidence that each Defendant knew of each challenged statement’s falsity or recklessly harbored subjective doubts as to its truth. Ryan hereby joins in and incorporates those points and authorities by reference.

      Plaintiff has not alleged facts that could defeat Ryan’s demurrer, nor can he possibly provide the evidence required to survive the scrutiny of Section 425.16. Even if there were some factual assertion concerning Plaintiff at issue in this case not already barred by the statute of limitations (which for the reasons set out in the previous two sections and in AS MPA at 19-25 there surely is not), Plaintiff has not pled, and could not prove, that Ryan Lathouwers knew that factual statement was false. As stressed above, Ryan did not write any of the statements complained of in Plaintiff’s pleading; all he ever did was write the software that automatically posts third parties’ reviews on the website as they are received. Lathouwers Decl. ¶¶16, 24. Ryan thus could not have known that any of the challenged statements even existed at the time they were first published, and a fortiori knew nothing of their factual accuracy. And even if there were some relevant scintilla of fact buried somewhere in the opinions of which Plaintiff complains, so many students have written so negatively about Plaintiff’s teaching performance (see AS RJN Ex. 4) that Ryan would hardly be in a position to doubt the accuracy of that factual assertion (whatever it might be). Accordingly, Ryan’s motion to strike must be granted and his demurrer sustained.

    8. CONCLUSION

For all of the foregoing reasons, Defendant Ryan Lathouwers’ demurrer should be sustained, and his Special Motion to Strike granted, with an award of attorneys’ fees and costs

under Code of Civil Procedure Section 425.16(c).

 

DATED: January 28, 2000.

Respectfully,

HOWARD, RICE, NEMEROVSKI, CANADY,
FALK & RABKIN

A Professional Corporation

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA,

INC.

By:

BERNARD A. BURK

Attorneys for Defendant RYAN LATHOUWERS (also erroneously sued as TEACHER REVIEW)

 

 

Introduction 1

STATEMENT OF FACTS 2

ARGUMENT 7

plaintiff’s complaint both fails to state a cause of action, and is subject to a special motion to strike under code of civil procedure section 425.16 7

A. Plaintiff’s Effort To Penalize Free Expression On Matters Of Public Concern Is Properly Subject To A "Special Motion To Strike" Under Code Of Civil Procedure Section 425.16. 7

B. Federal Legislation Provides Ryan And Teacher Review Absolute Immunity From Plaintiff’s Claims. 8

1. Ryan Lathouwers Is A Statutorily Protected "Provider" And "User" Of An "Interactive Computer Service." 9

2. Section 230 Provides Ryan Absolute Immunity From All Of Plaintiff’s Claims. 11

C. Plaintiff’s Class Allegations And Prayer for Injunctive Relief Are Facially Invalid And Improper Attempts to Impose A Prior Restraint. 12

D. Plaintiff’s Claims As To All But One Of The Statements About Him Are Time-Barred. 13

E. All Of The Statements About Him Of Which Plaintiff Complains Are Constitutionally Protected Opinion. 14

F. Plaintiff Is A Public Official And A Public Figure, And Cannot Show The Knowledge Of Falsity Constitutionally Required To Hold Ryan Liable For The Third-Party Postings That Appear On Teacher Review. 14

CONCLUSION 15

Cases

Alexander v. United States, 509 U.S. 544 (1993) 13

Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998) 10

Cantu v. Resolution Trust Corp., 4 Cal. App. 4th 857 (1992) 13

Conroy v. Spitzer, 70 Cal. App. 4th 1446 (1999) 8

Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, 47 Cal. App. 4th 777 (1996) 8

Evans v. Unkow, 38 Cal. App. 4th 1490 (1995) 8

Near v. State of Minnesota, 283 U.S. 697 (1931) 13

Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) 8

Strick v. Superior Court, 143 Cal. App. 3d 916 (1983) 13

Wiener v. Superior Court, 58 Cal. App. 3d 525 (1976) 13

Wilson v. Superior Court, 13 Cal. 3d 652 (1975) 13

Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997), cert. denied, 118 S. Ct. 2341 (1998) 8, 9, 10, 11, 12

Statutes

Code Civ. Proc.
§425.16(b)(1)) 8
§425.16(c) 8
§425.16(e)(4) 8

47 U.S.C.
§230(a)(1) 11
§230(a)(3) 11
§230(c)(1) 9
§230(e)(1) 11
§230(e)(3) 9
§230(f)(2) 9

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