19-3574
La Liberte v. Reid


                     United States Court of Appeals
                         for the Second Circuit
                                AUGUST TERM 2019
                                  No. 19-3574

                                ROSLYN LA LIBERTE,
                                Plaintiff-Appellant,

                                         v.

                                    JOY REID,
                               Defendant-Appellee.

                              ARGUED: MAY 14, 2020
                              DECIDED: JULY 15, 2020



Before:      KEARSE, JACOBS, CABRANES, Circuit Judges.

      Roslyn La Liberte appeals from the September 30, 2019 judgment of the

United States District Court for the Eastern District of New York (Irizarry, Ch. J.),

which both dismissed her defamation claim against Joy Reid under Rule 12(b)(6)

and “struck” the claim under California’s Anti-Strategic Lawsuits Against Public

Participation (anti-SLAPP) statute. We VACATE that judgment and REMAND

the case for further proceedings consistent with this opinion.




                                          1
      We hold (for the first time) that California’s anti-SLAPP statute is

inapplicable in federal court because it conflicts with Federal Rules of Civil

Procedure 12 and 56. We also vacate the dismissal of the defamation claim under

Rule 12(b)(6). As to one of the statements at issue, the court erroneously deemed

La Liberte to be a limited purpose public figure (and accordingly dismissed for

failure to plead actual malice); as to the other, the court mischaracterized it as

nonactionable opinion. We affirm the district court’s conclusion that Reid does

not qualify for immunity under section 230 of the Communications Decency Act.

                               ____________________

                          G. TAYLOR WILSON (L. Lin Wood, Nicole Jennings
                          Wade, on the brief), L. Lin Wood, P.C., Atlanta, GA, for
                          Plaintiff-Appellant Roslyn La Liberte.

                          JOHN H. REICHMAN (Jason L. Libou, on the brief),
                          Wachtel Missry LLP, New York, NY, for Defendant-
                          Appellee Joy Reid.

                          The Reporters Committee for Freedom of the Press and
                          21 Media Organizations, Washington, DC, (Bruce D.
                          Brown and Katie Townsend), filed a brief as Amici
                          Curiae, in support of Defendant-Appellee.




                                          2
JACOBS, Circuit Judge:

      Plaintiff Roslyn La Liberte spoke at a 2018 city council meeting to oppose

California’s sanctuary-state law; soon after, a social media activist posted a photo

showing the plaintiff with open mouth in front of a minority teenager; the

caption was that persons (unnamed) had yelled specific racist remarks at the

young man in the photo. Defendant Joy Reid, a personality on cable television,

retweeted that post, an act that is not alleged to be defamatory. The defamation

claim is based on Reid’s two later posts: her June 29 post showed the photograph

and attributed the specific racist remarks to La Liberte; her July 1 post, to the

same effect, juxtaposed the photograph with the 1957 image of a white woman in

Little Rock screaming execrations at a Black child trying to go to school.

      The teenager who was photographed with La Liberte soon after publicly

explained that La Liberte did not scream at him and that they were having a civil

discussion. La Liberte sued Reid for defamation in the United States District

Court for the Eastern District of New York.

      The district court (Irizarry, Ch. J.) rejected Reid’s defense of immunity

under section 230 of the Communications Decency Act, see 47 U.S.C. § 230(c)(1)

(“Section 230”), but nevertheless dismissed La Liberte’s defamation claim as to




                                          3
both of Reid’s posts. The court deemed La Liberte to be a limited purpose public

figure and held that she failed to allege actual malice as to the first post, and

rejected the claim as to the second post on the ground that it was nonactionable

opinion. Moreover, the court “struck” La Liberte’s defamation claim--and

imposed attorneys’ fees (to be assessed)--under California’s Anti-Strategic

Lawsuits Against Public Participation (“anti-SLAPP”) statute for failure to

establish “a probability that the plaintiff will prevail.” Cal. Civ. Proc. Code §

425.16(b)(1),(c)(1). La Liberte appeals on the grounds that she was not a limited

purpose public figure, that both posts were defamatory, and that California’s

anti-SLAPP statute is inapplicable in federal court. Reid argues that the court

erroneously denied Section 230 immunity as to her first post.

      As a matter of first impression in this Circuit, we hold that California’s

anti-SLAPP statute is inapplicable in federal court because it increases a

plaintiff’s burden to overcome pretrial dismissal, and thus conflicts with Federal

Rules of Civil Procedure 12 and 56 (Point I).

      As to the merits, we agree with the district court that Reid cannot claim

immunity under Section 230 of the Communications Decency Act (Point II). This

lawsuit does not treat Reid as “the publisher or speaker of any information




                                          4
provided by another information content provider.” 47 U.S.C. § 230(c)(1) (emphasis

added). To the contrary, she is the sole author of both allegedly defamatory

posts.

         We disagree with the rest of the district court’s analysis under Rule

12(b)(6). La Liberte was not a public figure on the matter in controversy,

primarily because she lacked the regular and continuing media access that is a

hallmark of public-figure status. (Point III). Accordingly, she was not required

to allege that Reid acted with actual malice as to either post. Moreover, the court

erred by characterizing Reid’s second post as nonactionable opinion (Point IV).

That post could be interpreted as accusing La Liberte of engaging in specific

racist conduct, which is a provable assertion of fact and therefore actionable.




                                   BACKGROUND

         The facts are plentiful but straightforward. Roslyn La Liberte is a

California citizen who avows that she is “passionate about this country’s

immigration policies.” (App. at 13.) She took a particular interest in California

Senate Bill 54 (“SB 54”), a controversial 2017 law that limits cooperation between

local law enforcement and federal immigration authorities. One provision is that




                                           5
state and local law enforcement officers are barred from disclosing (inter alia) an

alien’s address and date of release from prison. Cal. Gov’t Code § 7284.6(a)(1).

To register her opposition, La Liberte attended city council meetings in several

cities, speaking out at some of them to urge resistance. On June 25th, 2018, La

Liberte attended one such meeting in Simi Valley, California, along with

hundreds of other people, where she spoke for about two minutes (the “Council

Meeting”).

      At some point during the Council Meeting, La Liberte was photographed

interacting with a fourteen-year-old teenager who appears to be (and is)

Hispanic (the “Photograph”). (See App. at 265.) The Photograph showed La

Liberte with her mouth open and her hand at her throat in a gagging gesture.

On June 28th, a social media activist named Alan Vargas tweeted the Photograph

along with the following caption:

      “You are going to be the first deported” [and] “dirty Mexican” [w]ere
      some of the things they yelled they yelled [sic] at this 14 year old boy.
      He was defending immigrants at a rally and was shouted down.
      Spread this far and wide this woman needs to be put on blast.

(App. at 67.) The Photograph went viral. The next day, Joy Reid, a personality

on the MSNBC cable station, retweeted (i.e., shared) the Vargas tweet to her

approximately 1.24 million followers. (La Liberte is not alleging defamation by



                                         6
Reid as to that communication.)

      Later that same day (June 29), Reid posted the Photograph on her

Instagram with the following caption:

      He showed up to a rally to defend immigrants . . . . She showed up
      too, in her MAGA hat, and screamed, “You are going to be the first
      deported” . . . “dirty Mexican!” He is 14 years old. She is an adult.
      Make the picture black and white and it could be the 1950s and the
      desegregation of a school. Hate is real, y’all. It hasn’t even really gone
      away.

(the “June 29 Post”) (App. at 84.) Meanwhile, the teenager in the Photograph

stated during an interview with Fox 11 Los Angeles that La Liberte did not yell

any racial slurs and that their discussion was “civil.” (App. at 38, 47.) Still, La

Liberte began receiving hate mail, including threats of mutilation and

recommendations that she commit suicide.

      Two days later (July 1), Reid published another post about La Liberte, this

time on Instagram and Facebook. This post juxtaposed the Photograph of La

Liberte with the 1957 photograph showing one of the Little Rock Nine walking

past a screaming white woman. Reid added the following caption:




                                          7
      It was inevitable that this [juxtaposition] would be made. It's also
      easy to look at old black and white photos and think: I can't believe
      that person screaming at a child, with their face twisted in rage, is real.
      By [sic] every one of them were. History sometimes repeats. And it
      is full of rage. Hat tip to @joseiswriting. #regram #history
      #chooselove

(the “July 1 Post”) (App. at 87.) La Liberte hired a lawyer, who contacted Reid

on July 2 to demand that she take down the posts and apologize. Reid

responded that evening by removing them from her accounts and issuing the

following statement: “It appears I got this wrong. My apologies to Mrs. La

Liberte and [the teenager].” (App. at 116.)

      La Liberte sued Reid for defamation in the Eastern District of New York,

claiming that Reid’s June 29 and July 1 posts falsely accused her of yelling racist

slurs at the teenager in the Photograph. Applying California law by agreement

of the parties, the district court dismissed La Liberte’s claim under Rule 12(b)(6)

and struck it under California’s anti-SLAPP statute. And since that statute

mandates fee shifting, the court “granted [Reid] leave to seek attorneys’ fees and

costs.” (App. at 279.)




                                          8
                                     DISCUSSION

         We review de novo a district court’s grant of a motion to dismiss,

“constru[ing] the complaint liberally, accepting all factual allegations in the

complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.”

Palin v. New York Times Co., 940 F.3d 804, 809 (2d Cir. 2019) (quoting Elias v.

Rolling Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017)). Likewise, whether

California’s anti-SLAPP statute can be applied in federal court raises a question

of law, which we review de novo. Knight v. State Univ. of N.Y. at Stony Brook,

880 F.3d 636, 640 (2d Cir. 2018); Adelson v. Harris, 774 F.3d 803, 807, 809 (2d Cir.

2014).




                                          I

         We begin with the procedural issue posed by the court’s decision to strike

La Liberte’s defamation claim under California’s anti-SLAPP statute. For a

category of cases related to a defendant’s speech, that statute subjects any claim

to dismissal “unless the court determines that the plaintiff has established that

there is a probability that the plaintiff will prevail on the claim.” Cal. Civ. Proc.

Code § 425.16(b)(1). Many states have enacted “anti-SLAPP statutes” with the




                                              9
idea that they provide breathing space for free speech on contentious public

issues. See Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1332 (D.C. Cir.

2015). The aim is “to decrease the ‘chilling effect’ of certain kinds of libel

litigation and other speech-restrictive litigation . . . by making it easier to dismiss

defamation suits at an early stage of the litigation.” Id. (internal quotation marks

omitted) (quoting Eugene Volokh, The First Amendment and Related

Statutes 118 (5th ed. 2014)).

      Specifically, California’s anti-SLAPP statute was enacted to provide “an

efficient procedural mechanism for the early and inexpensive dismissal of

nonmeritorious claims ‘arising from any act’ of the defendant ‘in furtherance of

the person’s right of petition or free speech . . . in connection with a public

issue.’” Annette F. v. Sharon S., 119 Cal. App. 4th 1146, 1159 (Cal. Ct. App. 2004)

(quoting Cal. Civ. Proc. Code § 425.16(b)(1)). A defendant is afforded 60 days

from service of the complaint to file a “special motion to strike,” which must be

granted “unless the court determines that the plaintiff has established that there

is a probability that the plaintiff will prevail on the claim.” Cal. Civ. Proc. Code §

425.16(b)(1),(f). Additionally, a prevailing defendant on this special motion

“shall be entitled” to recover attorney’s fees and costs. Id. § 425.16(c)(1).




                                          10
       California courts resolve these motions in two steps. “First, the court

decides whether the defendant has made a threshold showing that the

challenged cause of action is one arising from protected activity [i.e.,] . . . acts . . .

taken ‘in furtherance of the defendant’s right of petition or free speech . . . .’”

Equilon Enters. v. Consumer Cause, Inc., 29 Cal. 4th 53, 67 (Cal. 2002) (alteration

omitted) (quoting Cal. Civ. Proc. Code § 425.16(b)(1)). If so, the court

“determines whether the plaintiff has demonstrated a probability of prevailing

on the claim.” Id. In doing so, “the court shall consider the pleadings, and

supporting and opposing affidavits stating the facts upon which the liability or

defense is based.” Cal. Civ. Proc. Code § 425.16(b)(2).

       Our sister circuits split on whether federal courts may entertain the

various state iterations of the anti-SLAPP special motion. The Fifth, Eleventh,

and D.C. Circuits hold that they are inapplicable in federal court on the ground

that they conflict with Federal Rules of Civil Procedure 12 and 56. See Klocke v.

Watson, 936 F.3d 240, 242 (5th Cir. 2019) (Texas); Carbone v. Cable News

Network, Inc., 910 F.3d 1345, 1350 (11th Cir. 2018) (Georgia); Abbas v. Foreign

Policy Grp., LLC, 783 F.3d 1328, 1335 (D.C. Cir. 2015) (D.C.).1 The First and


1For our purposes, these anti-SLAPP statutes are analogous to California’s. Each
raises the bar for plaintiffs to overcome a pretrial dismissal motion. See Carbone,


                                            11
Ninth Circuits see no such conflict with the statutes of Maine and California,

respectively. See Godin v. Schencks, 629 F.3d 79, 86-87 (1st Cir. 2010); 2 United

States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 972 (9th

Cir. 1999). We have decided some cases involving these special motions, but we

have not yet decided the question of applicability.3


910 F.3d at 1348 (addressing Georgia’s anti-SLAPP statute, which imposes the
identical requirement: plaintiffs must “establish[] that there is a probability that
the nonmoving party will prevail on the claim”); Abbas, 783 F.3d at 1332
(addressing D.C.’s anti-SLAPP statute, which similarly requires plaintiffs to
demonstrate that “the claim is likely to succeed on the merits”); see also Klocke,
936 F.3d at 244 (addressing Texas’s anti-SLAPP statute, which requires the non-
movant to “establish[] by clear and specific evidence a prima facie case for each
element of the claim in question”).

2Maine’s special motion requires dismissal “unless the party against whom the
special motion is made shows that the moving party’s exercise of its right of
petition was devoid of any reasonable factual support or any arguable basis in
law and that the moving party’s acts caused actual injury to the responding
party.” Godin, 629 F.3d at 82.

3Reid argues that we already held (or implied) that these special motions can be
applied in federal court. Not so. She relies on Liberty Synergistics Inc. v.
Microflo Ltd., 718 F.3d 138, 157 (2d Cir. 2013) (“Liberty I”), which vacated the
denial of a California special motion to strike. But that case turned on choice-of-
law principles under the Rules of Decision Act. Id. at 142, 157. The question on
appeal was whether the district court could entertain California’s special motion
to strike notwithstanding that it was applying New York substantive law. (The
case originated in California state court. It was removed to federal court and
then transferred to the Eastern District of New York.) Id. at 143. Liberty I
therefore did not consider whether the special motion conflicts with any Federal
Rule, and a later decision in that case clarified as much, noting that Liberty I


                                         12
      The test is whether “a Federal Rule of Civil Procedure ‘answer[s] the same

question’ as the [special motion to strike].” Abbas, 783 F.3d at 1333 (alteration in

original) (quoting Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559

U.S. 393, 398–99 (2010)). If so, the Federal Rule governs, unless it violates the

Rules Enabling Act. Id. Applying that test, we first conclude that the special

motion to strike in California’s anti-SLAPP statute answers the same question as

Federal Rules 12 and 56.

      The special motion to strike requires outright dismissal unless the plaintiff

can “establish[] a probability that he or she will prevail on the claim.” Cal. Civ.



“expressly declined to reach” the issue of “whether California’s anti-SLAPP
statute is applicable in federal court.” Liberty Synergistics Inc. v. Microflo Ltd.,
637 F. App’x 33, 34 n.1 (2d Cir. 2016) (summary order) (alteration omitted).

       Reid also relies on Adelson v. Harris, 774 F.3d 803, 809 (2d Cir. 2014),
which approved certain aspects of Nevada’s anti-SLAPP statute. That case is
inapposite because Nevada’s statute is quite different. As the district court in
Adelson recognized, “[t]he Nevada statute does not establish a ‘reasonable
probability of success’ standard that must be met without discovery, like the
California Anti–SLAPP law.” Adelson v. Harris, 973 F. Supp. 2d 467, 493 n.21
(S.D.N.Y. 2013). Instead, “the Nevada statute immunizes ‘good faith
communication[s]’--defined as communications that are ‘truthful or . . . made
without knowledge of . . . falsity’--thereby effectively raising the substantive
standard that applies to a defamation claim.” Id. Accordingly, “even if
the procedural elements of certain Anti–SLAPP statutes present [conflicts with the
Federal Rules of Procedure], those problems [were] not presented in [Adelson],
where the effects of the [Nevada] Anti–SLAPP law . . . are substantive.” Id.
(citation omitted).


                                         13
Pro. Code § 425.16(b)(3). The statute thus “establishes the circumstances under

which a court must dismiss a plaintiff’s claim before trial,” a question that is

already answered (differently) by Federal Rules 12 and 56. Abbas, 783 F.3d at

1333-34. Under Rule 12(b)(6), the pleading burden is to allege “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007). This “does not impose a probability

requirement at the pleading stage. . . . [A] well-pleaded complaint may proceed

even if it strikes a savvy judge that actual proof of those facts is improbable.” Id.

at 556. California’s anti-SLAPP statute, however, “abrogates that entitlement . . .

by requiring the plaintiff to establish that success is not merely plausible but

probable.” Carbone, 910 F.3d at 1353.

      It also conflicts with Rule 56, which permits summary judgment only if

“the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The

Rule thus enables plaintiffs to proceed to trial by identifying any genuine dispute

of material fact, whereas California’s anti-SLAPP statute “nullif[ies] that

entitlement by requiring the plaintiff to prove that it is likely, and not merely

possible, that a reasonable jury would find in his favor.” Carbone, 910 F.3d at




                                           14
1353. Together, Rules 12 and 56 “express ‘with unmistakable clarity’ that proof

of probability of success on the merits ‘is not required in federal courts’ to avoid

pretrial dismissal.” Id. at 1351 (quoting Hanna v. Plumer, 380 U.S. 460, 470

(1965)). Therefore, California’s special motion requires the plaintiff to make a

showing that the Federal Rules do not require.

      Reid urges us to follow the Ninth Circuit, which holds that California’s

anti-SLAPP statute and the Federal Rules “can exist side by side . . . without

conflict.” Newsham, 190 F.3d at 972 (internal quotation marks omitted). We

disagree--as do a number of Ninth Circuit judges.4

      Amici curiae argue that “[a]s compared to Rules 12 and 56, the anti-SLAPP

motion to strike ‘serves the entirely distinct function of protecting those specific




4 See Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1188 (9th Cir. 2013) (Watford,
J., joined by Kozinski Ch. J., Paez J., and Bea, J., dissenting from denial of
rehearing en banc). Judge Watford explained that Newsham is no longer good
law (to the extent it ever was) in light of the Supreme Court’s intervening
decision in Shady Grove. See id. at 1189 (“Just as the New York statute in Shady
Grove impermissibly barred class actions when Rule 23 would permit them, so
too California’s anti-SLAPP statute bars claims at the pleading stage when Rule
12 would allow them to proceed.”); see also id. (“The anti-SLAPP statute
eviscerates Rule 56 by requiring the plaintiff to prove that she will probably
prevail if the case proceeds to trial--a showing considerably more stringent than
identifying material factual disputes that a jury could reasonably resolve in the
plaintiff’s favor.”).



                                         15
defendants that have been targeted with litigation on the basis of their protected

speech’” and that it “‘supplements rather than conflicts with the Federal Rules.’”

(Amici Br. at 22 (first quoting Godin, 629 F.3d at 89; then quoting Makaeff v.

Trump University, LLC, 736 F.3d 1180, 1182 (9th Cir. 2013) (Wardlaw, J.,

concurring in the denial of rehearing en banc)).)5 The idea that the more

stringent requirement of the anti-SLAPP standard is a beneficial “supplement” to

the Federal Rules is a policy argument--and fatal, because the more permissive

standards of the Federal Rules likewise reflect policy judgments as to what is

sufficient. See Shady Grove, 559 U.S. at 401 (explaining that because “Rule 23

permits all class actions that meet its requirements, . . . a State cannot limit that

permission by . . . impos[ing] additional requirements”). Finally, amici warn that

refusal to apply the anti-SLAPP statute will “encourage forum shopping” and

lead to “an increased burden on federal courts in this Circuit.” (Amici Br. at 11.)

That may be so; but our answer to a legal question does not turn on our

workload; and in any event, the incentive to forum-shop created by a circuit split

can be fixed, though not here.




5Amici moved for leave to file their brief on February 19, 2020. That motion is
now granted.


                                          16
      Since Rules 12 and 56 answer the same question as California’s special

motion to strike, they “govern in diversity cases in federal court, unless Rules 12

and 56 violate the Rules Enabling Act.” Abbas, 783 F.3d at 1336.

“So far, the Supreme Court has rejected every challenge to the Federal Rules that

it has considered under the Rules Enabling Act.” Id. Neither Reid nor amici

curiae invite us to deviate. Still, we briefly address the question for the sake of

completeness. The test is “whether a rule really regulates procedure,--the

judicial process for enforcing rights and duties recognized by substantive law

and for justly administering remedy and redress for disregard or infraction of

them.” Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941). Like the Eleventh Circuit,

“[w]e have little difficulty concluding” that Rules 12 and 56 “comply with the

Rules Enabling Act,” particularly because they “‘affect[] only the process of

enforcing litigants’ rights and not the rights themselves.’” Carbone, 910 F.3d at

1357 (second alteration in original) (quoting Burlington N. R.R. Co. v. Woods,

480 U.S. 1, 8, (1987)). Accordingly, federal courts must apply Rules 12 and 56

instead of California’s special motion to strike.

                                              ***




                                         17
        Finally, Reid and amici curiae contend that she is entitled to attorneys’ fees

under the anti-SLAPP statute based on the district court’s separate Rule 12(b)(6)

dismissal. We disagree. “The Act does not purport to make attorney’s fees

available to parties who obtain dismissal by other means, such as under

Federal Rule 12(b)(6).” Abbas, 783 F.3d at 1337 n.5; see also Klocke, 936 F.3d at

247 n.6. (“Suffice to say that because [Texas’s anti-SLAPP statute] does not apply

in federal court, the district court erred by awarding fees and sanctions pursuant

to it.”).

        California’s anti-SLAPP statute likewise awards attorneys’ fees only to “a

prevailing defendant on a special motion to strike.” Cal. Civ. Pro. Code §

425.16(c)(1) (emphasis added). So Reid cannot recover attorneys’ fees based on

the district court’s Rule 12(b)(6) dismissal (which was nevertheless erroneous, as

we explain below in Points III and IV). Nor may she recover them under the

anti-SLAPP statute if she later prevails by other means. 6




6The California Legislature presumably could have awarded attorneys’ fees to
the prevailing party in any defamation action, but it chose not to do so. See
Abbas, 783 F.3d at 1335 (“Had the D.C. Council simply wanted to permit courts
to award attorney’s fees to prevailing defendants in these kinds of defamation
cases, it easily could have done so.”).


                                          18
                                         II

      We agree with the district court that Reid does not enjoy immunity under

Section 230 of the Communications Decency Act. See 47 U.S.C. § 230(c)(1) (“No

provider or user of an interactive computer service shall be treated as the

publisher or speaker of any information provided by another information

content provider.”). This immunity has three elements: “(1) [the defendant] is a

provider or user of an interactive computer service, (2) the claim is based on

information provided by another information content provider and (3) the claim

would treat [the defendant] as the publisher or speaker of that information.”

FTC v. LeadClick Media, LLC, 838 F.3d 158, 173 (2d Cir. 2016) (alteration in

original) (internal quotation marks omitted) (quoting Jane Doe No. 1 v.

Backpage.com, LLC, 817 F.3d 12, 19 (1st Cir. 2016)). An “information content

provider” is “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.” 47 U.S.C. § 230(f)(3).

      The second element is dispositive here. La Liberte’s claim is based on

posts of which Reid is the author, not on “information provided by another

content provider.” Vargas had tweeted about vile remarks that “they yelled” at




                                         19
the meeting. (App. at 67 (emphasis added).) Vargas did not attribute the

remarks to La Liberte. The following day, Reid authored and published her own

Instagram post (the June 29 Post), which attributed to La Liberte (albeit not by

name) what Vargas attributed only generally to the unnamed “they.” (See App.

at 84 (“She . . . screamed, ‘You are going to be the first deported’ . . . ‘dirty

Mexican!’” (emphasis added)).) The post also included Reid’s commentary on

the conduct alleged: “Make the picture black and white and it could be the 1950s

and the desegregation of a school. Hate is real, y’all. It hasn’t even really gone

away.” (App. at 84.)

      As sole author of the June 29 Post, Reid alone was “responsible . . . for [its]

creation or development,” which makes her the sole “information content

provider.” 47 U.S.C. § 230(f)(3). Moreover, she went way beyond her earlier

retweet of Vargas in ways that intensified and specified the vile conduct that she

was attributing to La Liberte. She accordingly stands liable for any defamatory

content. And she is similarly the sole “information content provider” for her July

1 Post, a point she does not contest.7




7By only addressing the June 29 Post, Reid concedes that her July 1 Post does not
qualify for Section 230 immunity.


                                           20
      Reid argues that “[t]he issue . . . is not whether a defendant posted or

authored a publication, . . . but rather whether the publication is materially

different from a prior internet publication.” (Appellee’s Br. at 42.) Thus Reid

seeks Section 230 immunity on the ground that the June 29 Post “merely repeated

what countless others had previously published before her, including Vargas

and at least eight other individuals who specifically stated that La Liberte made

racial slurs at the Council Meeting.” (Appellee’s Br. at 47.)

      The contention is unsupported by fact or law. The June 29 Post did not

“merely repeat[]” what Vargas had “previously published.” Among other

salient differences, Reid’s post accused La Liberte of yelling racist insults at the

teenager. Nor did Reid simply retweet or share a post that someone else

authored.8 In effect, Reid is arguing that a plaintiff can sue only the first

defamer. If that were so, a post by an obscure social media user with few

followers, blogging in the recesses of the internet, would allow everyone else to

pile on without consequence. No one’s reputation would be worth a thing.


8La Liberte’s initial complaint included Reid’s retweet of the Vargas tweet; but
since La Liberte later dropped that claim, we need not decide whether a retweet
qualifies for Section 230 immunity. Nor are we called to decide whether Section
230 protects a social media user who copies verbatim (and without attribution)
another user’s post, a question that may be complicated by issues as to malice
and status as a public figure.


                                          21
      Reid relies more persuasively on the “material contribution” test that we

recognized in LeadClick. See Force v. Facebook, Inc., 934 F.3d 53, 68 (2d Cir.

2019) (“[W]e have recognized that a defendant will not be considered to have

developed third-party content unless the defendant directly and ‘materially’

contributed to what made the content itself ‘unlawful.’” (quoting LeadClick, 838

F.3d at 174)). We apply this test to “draw[] the line at the crucial distinction

between, on the one hand, taking actions . . . to . . . display . . . actionable content

and, on the other hand, responsibility for what makes the displayed content

[itself] illegal or actionable.” Id. (alterations in original) (internal quotation

marks omitted) (quoting Kimzey v. Yelp! Inc., 836 F.3d 1263, 1269 n.4 (9th Cir.

2016)).

      That test does not serve Reid because she did not pass along or edit “third-

party content”; she authored both Posts at issue. To illustrate: in Force, victims

of Hamas-organized terrorist attacks in Israel sought to hold Facebook

responsible on the ground that “Hamas . . . used Facebook to post content that

encouraged terrorist attacks in Israel.” 934 F.3d at 59. Facebook was immune

under Section 230, as we held, because Facebook did not “‘develop’ the content

of the . . . postings by Hamas”; nor does Facebook “edit (or suggest edits) for the




                                           22
content that its users . . . publish.” Id. at 69-70. On the other hand, in LeadClick,

the defendant “had ‘developed’ third parties’ content by giving specific

instructions to those parties on how to edit ‘fake news’ that they were using in

their ads.” Id. at 69 (summarizing LeadClick, 838 F.3d at 176).

      Since Reid cannot claim immunity, we turn to the substance of the

defamation claim.




                                           III

      The district court ruled that La Liberte was a limited purpose public figure

on the California sanctuary-state controversy, and dismissed her claim as to the

June 29 Post for failure to plead actual malice. See Ampex Corp. v. Cargle, 128

Cal. App. 4th 1569, 1577 (Cal. Ct. App. 2005) (noting the actual malice

requirement for limited purpose public figures).

      There are two kinds of public figures. “The all-purpose public figure . . .

has achieved such pervasive fame or notoriety that he or she becomes a public

figure for all purposes . . . . The limited purpose public figure . . . voluntarily

injects him or herself or is drawn into a specific public controversy, thereby

becoming a public figure on a limited range of issues.” Ampex Corp., 128 Cal.




                                          23
App. 4th at 1577. No one argues that La Liberte is an all-purpose public figure;

the question is whether she became a limited purpose public figure with respect

to California’s sanctuary-state law (SB 54), that is, did she “thrust [herself] to the

forefront” of the controversy, “invite attention and comment[,] . . . [and] assume

special prominence in [its] resolution.” Khawar v. Globe Int'l, Inc., 19 Cal. 4th

254, 263 (Cal. 1998) (internal quotation marks omitted) (quoting Gertz v. Robert

Welch, Inc., 418 U.S. 323, 345, 351 (1974)). The district court answered

affirmatively because La Liberte “attended and spoke about SB 54 at multiple

city council meetings” and “appeared in a photograph in the Washington Post

about the SB 54 controversy” one month before the Simi Valley Council Meeting.

(App. at 273.)

      That is not nearly enough. Thin as the findings are to begin with, the

district court did not take into account the requirement that a limited purpose

public figure maintain “regular and continuing access to the media.”

Hutchinson v. Proxmire, 443 U.S. 111, 136 (1979). One reason for imposing the

actual malice burden on public figures and limited purpose public figures is that

“[t]hey have media access enabling them to effectively defend their reputations

in the public arena.” Khawar, 19 Cal. 4th at 265 (citing Gertz, 418 U.S. at 344-45).




                                          24
We have therefore made “regular and continuing access to the media” an

element in our four-part test for determining whether someone is a limited

purpose public figure. Contemporary Mission, Inc. v. New York Times Co., 842

F.2d 612, 617 (2d Cir. 1988). The California cases cited by the district court

similarly turn on media access.9

      La Liberte plainly lacked such media access. The earlier photograph,

which showed her conversing, was in a Washington Post photo spread of

attendees at an SB 54 protest. The article did not name La Liberte, let alone

mention her views. The single caption described everyone depicted as

“[s]upporters and opponents of [SB 54] rally[ing] and debat[ing] outside Los

Alamitos City Hall.” (App. at 140-41.) Such incidental and anonymous

treatment hardly bespeaks “regular and continuing access to the media.”




9In Nadel v. Regents of the University of California, 28 Cal. App. 4th 1251 (Cal.
Ct. App. 1994), one plaintiff was deemed to be a limited purpose public figure
because he had “spoke[n] to print media reporters who included his comments
in articles about the [controversy]” and had “been on 6 radio stations,”
underscoring his “‘more realistic opportunity to counteract false statements than
private individuals normally enjoy.’” Nadel, 28 Cal. App. 4th at 1269-70 (quoting
Gertz, 418 U.S. at 344); see also Rudnick v. McMillan, 25 Cal. App. 4th 1183, 1190
(Cal. Ct. App. 1994) (reasoning that a cattle rancher became a limited purpose
public figure by successfully prompting two newspapers to write articles about
his dispute with California’s Bureau of Land Management).


                                         25
      Nor does La Liberte’s participation at city council meetings. La Liberte is

said to have “testif[ied] eight times around the state” (Appellee’s Br. at 26 (citing

App. at 102-05)); but Reid does not identify instances in which the media singled

out La Liberte’s participation as newsworthy. Nor does speech, even a lot of it,

make a citizen (or non-citizen) fair game for attack. Imposition of the actual

malice requirement on people who speak out at government meetings would

chill public participation in politics and community dialogue.

      True, La Liberte received media attention. Reid emphasizes that La

Liberte appeared for a television interview after Vargas published his tweet but

before Reid’s posts were published. However, media access that becomes

available only “after and in response to” damaging publicity does not make

someone a public figure. Khawar, 19 Cal. 4th at 266. By the time of the

interview, the Photograph had gone viral, along with accusations that La Liberte

had screamed vile racist remarks at a child. The interview was “only the media

access that would likely be available to any private individual who found

himself the subject of sensational and defamatory accusations.” Id. “If such

access were sufficient . . . , any member of the media . . . could confer public




                                         26
figure status simply by publishing sensational defamatory accusations against

any private individual.” Id.

      It makes little sense to deem La Liberte a limited purpose public figure

when she stepped forward solely to defend her reputation. People become

limited purpose public figures only when they “voluntarily invite[] comment and

criticism” by “injecting themselves into public controversies.” Id. at 265

(emphasis added) (citing Gertz, 418 U.S. at 344-45). La Liberte, however, did not

use the interview to inject herself to the forefront of the sanctuary-state

controversy; she was pulled into a spotlight. Her experience suggests why the

Supreme Court has only hypothetically recognized the notion of an involuntary

public figure.10


10The Court acknowledged the possibility of becoming an involuntary public
figure but cautioned that “the instances of truly involuntary public figures must
be exceedingly rare.” Gertz, 418 U.S. at 345. As the Supreme Court of California
elaborated, “assuming a person may ever be accurately characterized as an
involuntary public figure, we infer . . . that the [Supreme Court] would reserve
this characterization for an individual who, despite never having voluntarily
engaged the public’s attention in an attempt to influence the outcome of a public
controversy, nonetheless has acquired such public prominence in relation to the
controversy as to permit media access sufficient to effectively counter media-
published defamatory statements.” Khawar, 19 Cal. 4th at 265 (last emphasis
added). La Liberte is clearly not that exception. In any event, since Gertz, the
Supreme Court has “emphasized the voluntary nature of the public-figure
status.” Sack on Defamation: Libel, Slander, and Related Problems at 5-68 (5th
ed. 2017).


                                         27
      Since La Liberte was not a limited purpose public figure, the district court

erred by requiring her to allege actual malice, and her claim as to the June 29 Post

should not have been dismissed for failing to do so. On remand, the district

court may assess whether La Liberte adequately alleged that Reid acted

negligently with respect to that post, the standard for private-figure plaintiffs.

See Khawar, 19 Cal. 4th at 274; Brown v. Kelly Broadcasting Co., 48 Cal. 3d 711,

742 (Cal. 1989) (“[A] private person need prove only negligence (rather than

malice) to recover for defamation.”).




                                          IV

      The district court dismissed La Liberte’s claim as to the July 1 Post on the

ground that it “express[ed] nonactionable statements of opinion.” (App. at 275.)

We disagree. A reader could have understood the July 1 Post as equating La

Liberte’s conduct with archetypal racist conduct, which is a provable assertion of

fact, and therefore actionable.

      Whether a statement is nonactionable opinion “is a question of law to be

decided by the court.” Baker v. L.A. Herald Examiner, 42 Cal. 3d 254, 260 (Cal.

1986). The test is “whether a reasonable fact finder could conclude the published




                                         28
statement declares or implies a provably false assertion of fact.” Franklin v.

Dynamic Details, Inc., 116 Cal. App. 4th 375, 385 (Cal. Ct. App. 2004) (citing

Milkovich v. Lorain Journal Co., 497 U.S. 1, 19 (1990)); see also Overhill Farms,

Inc. v. Lopez, 190 Cal. App. 4th 1248, 1260 (Cal. Ct. App. 2010) (“Statements of

opinion which imply a false assertion of fact are actionable.”).

      Relatedly, “accusation[s] of concrete, wrongful conduct” are actionable

while “general statements charging a person with being racist, unfair, or unjust”

are not. Overhill Farms, 190 Cal. App. 4th at 1262. Overhill Farms is instructive:

a press release and leaflets discussing a company’s termination of immigrant

workers were actionable because they did not “merely accuse [the company] of

being ‘racist’ in some abstract sense.” Id. Rather, the press release “contain[ed]

language which expressly accuse[d] [the company] of engaging in racist firings,”

and the leaflets “refer[red] to [the company’s] conduct as ‘racist and

discriminatory abuse against Latina women immigrants.’” Id.

      A reader could interpret the juxtaposition of the Photograph with the 1957

Little Rock image to mean that La Liberte likewise screamed at a child out of

racial animus--particularly in light of Reid’s comment that “[h]istory sometimes

repeats.” (App. at 87.) That interpretation is bolstered by Reid’s description of




                                         29
the white woman in the Little Rock photograph as a “person screaming at a

child, with [her] face twisted in rage” and Reid’s comment that it was

“inevitable” that the photos would be juxtaposed. Reid thus portrayed La

Liberte as a latter-day counterpart of the white woman in 1957 who verbally

assaulted a minority child. Like the defendants in Overhill Farms, Reid “did not

merely accuse [La Liberte] of being ‘racist’ in some abstract sense.” 190 Cal. App.

4th at 1262. Rather, her July 1 Post could be understood as an “accusation of

concrete, wrongful conduct,” which can be proved to be either true or false. Id.

That makes it potentially defamatory.

      Reid argues that readers could not understand the July 1 Post as

defamatory absent familiarity with Reid’s June 29 Post or the Little Rock image,

and that La Liberte was therefore required to plead defamation by implication

and special damages. We disagree.

      To be sure, California defamation law (which governs) recognizes two

categories of libel, one of which requires proof of special damages. A publication

is libelous “per se” when “a reader would perceive a defamatory meaning

without extrinsic aid beyond his or her own intelligence and common sense.”

Bartholomew v. YouTube, LLC, 17 Cal. App. 5th 1217, 1226 (Cal. Ct. App. 2017)




                                        30
(quoting Barnes-Hind, Inc. v. Superior Court, 181 Cal. App. 3d 377, 386-87 (Cal.

Ct. App. 1986)). A publication is libelous “per quod” if a “reader would be able to

recognize a defamatory meaning only by virtue of his or her knowledge of

specific facts and circumstances, extrinsic to the publication, which are not

matters of common knowledge rationally attributable to all reasonable persons.”

Id. at 1226-27 (quoting Barnes-Hind, Inc., 181 Cal. App. 3d at 386-87). And

unlike libel per se, libel per quod “is not actionable unless the plaintiff alleges and

proves that he has suffered special damage as a proximate result thereof.” 11 Cal.

Civ. Code § 45a.

      Reid’s argument confuses libel per quod, which imposes the special

damages requirement, with libel by implication, which can be libel per se

nevertheless. “A statement can also be libelous per se if it contains a charge by

implication from the language employed by the speaker and a listener could

understand the defamatory meaning without the necessity of knowing extrinsic




11“‘Special damages’ means all damages that plaintiff alleges and proves that
he or she has suffered in respect to his or her property, business, trade,
profession, or occupation, including the amounts of money the plaintiff alleges
and proves he or she has expended as a result of the alleged libel, and no other.”
Cal. Civ. Code § 48a(d)(2).



                                          31
explanatory matter.” McGarry v. Univ. of San Diego, 154 Cal. App. 4th 97, 112

(Cal. Ct. App. 2007).

      Readers who were unfamiliar with the June 29 Post could still interpret the

July 1 Post to mean that Liberte engaged in racist conduct. The Little Rock

encounter is a “matter[] of common knowledge rationally attributable to all

reasonable persons.” Bartholomew, 17 Cal. App. 5th at 1226-27. Far from an

obscure episode, it is a landmark event in one of the most vital historic

developments of twentieth-century America, and the 1957 photograph is an

indelible image of it. Presumably, that is why and how Reid used it.

      Moreover, even those with an impoverished frame of reference could

interpret the post as accusing La Liberte of engaging in racist conduct. There

was no need for “extrinsic aid beyond [a reader’s] own intelligence and common

sense.” Id. at 1226. The 1957 photograph shows a white woman “screaming at a

[Black] child, with [her] face twisted in rage.” (App. at 87.) When viewing that

image next to La Liberte’s Photograph and reading Reid’s comment that

“[h]istory sometimes repeats,” a reader could believe that La Liberte had

likewise engaged in racist conduct. And Reid “is liable for what is insinuated, as

well as for what is stated explicitly.” Bartholomew, 17 Cal. App. 5th at 1227.




                                        32
Because that accusation is capable of being proven or disproven, the district

court erred by characterizing the July 1 Post as nonactionable opinion.

                                        ***

      Since the district court concluded that La Liberte adequately alleged malice

with respect to the July 1 Post,12 it follows that La Liberte adequately alleged

negligence, the standard for private-figure plaintiffs. Her claim as to this post

should proceed to discovery.




                                  CONCLUSION

      For the reasons stated above, the district court’s judgment is VACATED

and REMANDED for further proceedings consistent with this opinion.




12The court reasoned that “it is plausible that [Reid] learned about the falsity of
the content of the July 1 Post before publication,” including by way of emails
from La Liberte’s son. (App. at 275.)


                                         33
