Zeran v. America Online, Inc.

129 F.3d 327 (4th Cir. 1997), cert. denied, 524 U.S. 937 (1998)

In Zeran, a message was posted on an AOL bulletin board advertising and describing the sale of shirts with extremely offensive and tasteless slogans related to the Oklahoma City bombing. Persons interested in purchasing a T-shirt were instructed to call the plaintiff, Kenneth Zeran,whose home phone number was posted in the message but who had not posted the message nor had anything to do with the content of the ad or its posting. The plaintiff called AOL repeatedly to complain over a four-day period in which he continued to receive abusive phone calls. He eventually sued AOL, alleging it had unreasonably delayed in removing defamatory messages, and failed to screen for similar postings thereafter. Zeran.at 329-330.

The Fourth Circuit Court of Appeals gave an expansive reading of Section 230. The Court was concerned about the chilling effect that the possibility of tort liability for others’ speech would have on ICS providers. “Faced with potential liability for each message republished by their services, interactive computer service providers might choose toseverely restrict the number and type of messages posted.” Zeran, 129 F.3d at 331.

The court held Section 230 preempted plaintiff’s defamation and related claims, that AOL could not be treated as the “publisher” of the statements, and that even AOL’s decision not to remove the post did not render it a publisher. The court recognized that, in creating the immunity of Section 230(c)(1), Congress “made a policy choice . . . not to deter harmful online speechthrough the separate route of imposing tort liability on companies that serve as intermediaries for other parties’ potentially injurious messages.” Zeran, 129 F.3d at 330-31. In the words of the Zeran court:

[L]awsuits seeking to hold a service liable for its exercise of a publisher’s traditional editorial functions – such as deciding whether to publish, withdraw, postpone or alter content – are barred. The purpose of this statutory immunity is not difficult to discern. Congress recognized the threat that tort-based lawsuits pose to freedom of speech in the new and burgeoning Internet medium. . . . Section 230 was enacted, in part, to maintain the robust nature of Internet communication . . . .

Id., at 330-31.