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The First Amendment and the Internet:

Zeran v. America On-Line, Inc., 129 F.3d 327 4th Cir. 1997


In this much discussed case, the court held that the CDA provided immunity to the defendant for claims arising from defamatory messages placed on its service by a third party and preempted similarly based state law claims.


The plaintiff in Zeran was the victim of an electronic hoax. An unknown person, acting without Zeran’s knowledge or permission ran a series of notices on an AOL bulletin board purporting to offer for sale t-shirts and other items which supported or made light of the bombing of the Murrah Federal Building in Oklahoma City. The notices featured Zeran’s first name and phone number; not surprisingly, he received numerous outraged calls and death threats. After the first notice was posted, Zeran complained to AOL, which removed it but declined to post a retraction. Additional notices continued to appear for several weeks despite Zeran’s request that AOL block such notices. Zeran then brought suit against AOL claiming that it had been negligent in allowing the notices to remain and to reappear on its bulletin board.


The United States Court of Appeals for the Fourth Circuit upheld the lower court’s dismissal of the case on the ground that § 230 of the Communications Decency Act of 1996 ("the CDA"), which addresses issues concerning protection for private blocking and screening of offensive material, confers immunity on Internet providers with respect to information placed on their services by third parties and specifically provides that "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." The court thus held that § 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service.


The court discerned that Congress’ purpose in creating this immunity was two-fold. First, Congress sought to avoid the threat that tort-based lawsuits "pose to freedom of speech in the new and burgeoning Internet medium." The court noted that the amount of information communicated via interactive computer services was staggering and that the specter of tort liability for items that might be posted on a provider’s system would have an obvious chilling effect on speech. Absent the immunity, such providers would arguably be liable for any message posted on their service and might well decide to severely restrict the number and/or type of messages posted. Second, Congress sought to remove disincentives which included the liability that an interactive computer service provider might have under state law if it undertook to do content screening and editing and a defamatory statement by a third party escaped its notice. The court’s concern was not hypothetical: under such circumstances, Prodigy had been held to have published a defamatory statement two years earlier. Stratton-Oakmont, Inc. v. Prodigy Service Co., 1995 WL 805178 (N.Y. Sup. Ct. May 24, 1995)


. Congress passed § 230 to prevent the imposition of liability out of fear that such rulings would induce interactive computer companies to refrain from editing or blocking content.


The court premised its decision on the Commerce and Supremacy Clauses of the U.S. Constitution. It declined to apply an approach to statutory interpretation that favors retention of state common law unless Congress directly speaks to the issue in part because that approach would significantly lessen Congress’ power, derived from the Commerce Clause, to act in a field with national or international implications. Thus, while the CDA permits the enforcement of any state law consistent with § 230, it also forbids any state law cause of action or liability that is inconsistent with § 230. In addition, the court held that Zeran’s law suit, as it was based on state law inconsistent with the purposes of § 230 -- e.g., to promote unfettered speech on the Internet -- was preempted by the CDA. The doctrine of preemption, derived from the Supremacy Clause of the U.S. Constitution, provides that federal law is supreme when it conflicts with state law. Where Congress ordains, as it did in the CDA, that its laws are to regulate an area of commerce, state laws regulating that area of commerce must fall.


(In a similar case, Blumenthal v. Drudge and America On-Line, Inc., 992 F.Supp. 44 (D. D.C.), the court interpreted the immunity conferred by § 230(c)(1) even more broadly. In Blumenthal, Sidney Blumenthal, Assistant to President Clinton, and his wife Jacqueline Blumenthal, Director of the President’s Commission on White House Fellowships, sued Matt Drudge whose Drudge Report was sent by Drudge’s co-defendant, America On-Line, to all of its subscribers. The suit alleged, among other things, that Drudge and AOL defamed the Blumenthals by stating that Mr. Blumenthal had a history of spousal abuse. In particular, AOL was charged with publishing this information with reckless disregard for its truth.

The United States District Court for the District of Columbia granted summary judgment for AOL on the basis of § 230 (c)(1) immunity. The facts that 1) Drudge was not an anonymous person but rather an individual with whom AOL contracted to provide his report and whom AOL promoted to its subscribers and potential subscribers as a reason to subscribe to AOL, 2) Drudge’s sole income was derived from AOL, and 3) AOL’s contract with Drudge gave AOL the right to remove, or direct Drudge to remove, any content that violated AOL’s standard Terms of Service or that adversely affected operations of the AOL network were unavailing in light of Congress’ clear intent. Although the court noted that, if it were writing on a clean slate, it would side with the Blumenthals, it nevertheless concluded that § 230(c)(1) granted AOL immunity.

Copyright SRBC 1998 up