by Paul Levy
The Ninth Circuit has retracted some of the dangerous dictum in its recent decision in Barnes v. Yahoo!, discussed in this blog last month here and here. The panel opinion had asserted – in dictum which, under Ninth Circuit procedure, actually constituted binding precedent – that Internet Service Providers’ section 230 immunity from suit cannot be raised on a motion to dismiss. In response to a petition for rehearing filed by Yahoo!, and to an amicus brief filed by Public Citizen along with several other organizations, the court issued an amendment that simply deleted that part of its opinion. The court also attempted, a bit grudgingly, to clean up some text and a footnote of its previous opinion, which had apparently stated that section 230 immunity applies only to state law claims, even though courts generally (including a Ninth Circuit en banc opinion last year) had held that it extends to federal law claims as well. The cleanup is not ideal — the text of the opinion still states “[S]ubsection (c)(1) only protects from liability . . . a provider or user . . . whom a plaintiff seeks to treat, under a state law cause of action4 as a publisher or speaker.” But the new footnote 4 plainly recognizes that 230(c)(1) extends to federal law causes of action, albeit rather in contradiction to the text which retains the word "only." It is fair to assume that other courts will recognize what the panel’s intent was. Props to Eric Goldman for calling attention to this second flaw in the opinion.