DATE: Decided November 12, 1997

COURT: United States Court of Appeals, Fourth Circuit (before Wilkinson, Chief Judge, Russell, Circuit Judge, and Boyle, Chief District Judge for the Eastern District of North Carolina, sitting by designation. Opinion by Wilkinson, Chief Judge)

PLAINTIFF: Kenneth M. Zeran (“Zeran”)

DEFENDANT: America Online, Incorporated (“AOL”)

INTERACTIVE COMPUTER SERVICE: “The parties do not dispute that AOL falls within the CDA’s ‘interactive computer service’ definition.”

ORIGINAL PUBLISHER/SPEAKER: An unidentified third party that posted offensive messages on AOL (the parties do not dispute that such third party “fits the definition of an ‘information content provider’”).

CAUSE OF ACTION: “AOL unreasonably delayed in removing defamatory messages posted by an unidentified third party, refused to post retractions of those messages, and failed to screen for similar postings thereafter.” The panel added, however, that “[a]lthough Zeran attempts to artfully plead his claims as ones of negligence, they are indistinguishable from a garden variety defamation action.”

MATERIAL ALLEGATIONS: “[A]n unidentified person posted a message on an AOL bulletin board advertising “Naughty Oklahoma T-Shirts.” The posting described the sale of shirts featuring offensive and tasteless slogans related to . . . the bombing of the Alfred P. Murrah Federal Building in Oklahoma City. Those interested in purchasing the shirts were instructed to call “Ken” at Zeran’s home phone number in Seattle . . . Later that day, Zeran called AOL and informed a company representative of his predicament . . . [t]he next day, an unknown person posted another message advertising additional shirts with new tasteless slogans related to the Oklahoma City bombing. Again, interested buyers were told to call Zeran’s phone number, to ask for “Ken,” and to “please call back if busy” due to high demand. Over the next four days, an unidentified party continued to post messages on AOL’s bulletin board, advertising additional items . . . with still more offensive slogans. During this time period, Zeran called AOL repeatedly . . ..”

PROCEDURAL HISTORY: AOL answered Zeran’s complaint and interposed 47 U.S.C. §230 as an affirmative defense. AOL’s motion for judgment on the pleadings was granted by Judge T.S. Ellis, III (E.D. Va), and Zeran appealed.

PROCEDURAL ACTION TAKEN HERE: Affirmed.

OUTCOME: Section 230 “plainly immunizes computer service providers like AOL from liability for information that originates with third parties.” By its “plain language,” §230, an exercise of Congress’ commerce power, “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. Specifically, §230 precludes courts from entertaining claims that would place a computer service provider in a publisher’s role. Thus, lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions-such as deciding whether to publish, withdraw, postpone or alter content-are barred.” More succinctly put, “§230 forbids the imposition of publisher liability on a service provider for the exercise of its editorial and self-regulatory functions.”

OPINION: The panel considered the purposes for enacting §230, a practical consideration, and Zeran’s arguments regarding (i) distributor liability, (ii) notice, and (iii) the common law in reaching its unanimous decision.

Purposes of §230 immunity. Express findings and policy statements contained in §230 demonstrate that it was enacted, in part, to keep government interference in Internet communications to a minimum and to encourage service providers to self-regulate the dissemination of offensive material over their services.

Practical consideration. The panel noted that “[i]t would be impossible for service providers to screen each of their millions of postings for possible problems.”

Distributor liability. Zeran argued that §230 immunity leaves distributor liability intact. However, “this theory of liability is merely a subset, or a species, of publisher liability, and is therefore also foreclosed by §230.” “Every one who takes part in the publication … is charged with publication. . . [e]ven distributors are considered to be publishers for purposes of defamation law.” Thus AOL is legally considered to be a publisher. Furthermore, AOL “falls squarely within [the] traditional definition of a publisher,” and “Zeran’s complaint treats AOL as a publisher.”

Notice. “The simple fact of notice surely cannot transform one from an original publisher to a distributor in the eyes of the law. To the contrary, once a computer service provider receives notice of a potentially defamatory posting, it is thrust into the role of a traditional publisher . . . [and] must decide whether to publish, edit, or withdraw the posting.” Furthermore, “notice-based liability for interactive computer service providers would provide third parties with a no-cost means to create the basis for future lawsuits.” “Because the probable effects of distributor liability on the vigor of Internet speech and on service provider self-regulation are directly contrary to §230’s statutory purposes, we will not assume that Congress intended to leave liability upon notice intact.”

Common law principles. The panel rejected application of an “interpretive canon favoring retention of common law principles.” “Here, Congress has indeed spoken directly to the issue by employing the legally significant term “publisher,” which has traditionally encompassed distributors and original publishers alike.”