Here’s a twist. The plaintiff in this case, Jonathan Affleck, was the plaintiff in Martillo v. Twitter, but he sued then under a nom de plume. The court issues him a chastising warning against using unauthorized pseudonyms.
In this case, Affleck posted 38 comments on Harvard Crimson articles, using 2 different names (not specified by the court). The court implies that perhaps Affleck’s comments were anti-Zionist? Harvard Crimson first removed the comments and suspended his posting ability; later they removed the commenting feature altogether. (Cue the phrase, “this is why we can’t have nice things”). Affleck sued the Harvard Crimson on a variety of dubious theories, including violations of his free speech rights under the US and Massachusetts constitutions, “common carriage discrimination,” and “public accommodation discrimination.”
The court disposes of this case purely on Section 230 grounds. The court says simply: “the deletion of content posted by Affleck and the disabling of his account are well within the Crimson’s traditional editorial functions protected by the CDA.” Cites to Duffer, Spreadbury v. Bitterroot, Collins v. Purdue, Miles v. Raycom, and more.
But what about his allegations of First Amendment violations? Section 230 can’t resolve those, even though the Harvard Crimson clearly isn’t a state actor. The court says breezily that “As Section 230’s barrier to suit is evident from the face of Affleck’s complaint, regardless of the content of his posts, the Crimson is immune from Affleck’s state and federal constitutional claims, as well as claims under federal law.” That’s not how Section 230 and the federal constitution interact….
Add this to the scrapheap of failed account termination/content removal cases, of which Affleck/Martillo now gets special status as a two-time entrant. Also add this to the list of times traditional newspapers benefit from Section 230 for the online comments sections they run (but RIP Harvard Crimson’s comment section).
Case Citation: Affleck v. The Harvard Crimson, Inc., 2025 WL 330577 (D. Mass. Jan. 29, 2025).