Batzel

Opinion by Judge BERZON. Opinion concurring in part and dissenting in part by Judge GOULD.

There is no reason inherent in the technological features of cyberspace why First Amendment and defamation law should apply differently in cyberspace than in the brick and mortar world. Congress, however, has chosen for policy reasons to immunize from liability for defamatory or obscene speech “providers and users of interactive computer services” when the defamatory or obscene material is “provided” by someone else. This case presents the question whether and, if so, under what circumstances a moderator of a list-serv and operator of a website who posts an allegedly defamatory e-mail authored by a third party can be held liable for doing so. The case also presents a novel procedural question — whether the denial of an Anti-SLAPP motion filed pursuant to California law can be appealed prior to a final judgment in the underlying case. After recounting the unusual tale underlying this case, we address each of these questions in turn.

I.

In the summer of' 1999, sometime-handyman Robert Smith was working for Ellen Batzel, an attorney licensed to practice in California and North Carolina, at…

concurring in part, dissenting in part:

I respectfully dissent from the majority’s analysis of the statutory immunity from libel suits created by § 230 of the Communications Decency Act (CDA). 1 The majority gives the phrase “information provided by another” an incorrect and unworkable meaning that extends CDA immunity far beyond what Congress intended. Under the majority’s interpretation of § 230, many persons who intentionally spread vicious falsehoods on the Internet will be immune from suit. This sweeping preemption of valid state libel laws is not necessary to promote Internet use and is not what Congress had in mind.

*1037 Congress in 1996 was worried that excessive state-law libel lawsuits would threaten the growth of the Internet. Congress enacted the CDA, which immunizes “provider[s] or user[s]” of “interactive computer service[s]” from civil liability for material disseminated by them but “provided by another information content provider.” 47 U.S.C. § 230 (c). Under the CDA, courts must treat providers or users of interactive computer services differently from other information providers, such as newspapers, magazines, or television and radio stations, all of which may…