Court finds America Online protected from suit over content

VIRGINIA–In mid-November a unanimous panel of the federal appeals court in Richmond (4th Cir.) held that a section of the Communications Decency Act protects America Online from liability in a lawsuit filed by a Seattle businessman who claims he was libeled by messages posted on AOL.

The ruling, upholding the decision of a federal district court in Alexandria, was the first attempt by a federal appeals court to interpret Section 230 of the CDA, which insulates online service providers from liability for material posted by third parties.

Kenneth Zeran sued AOL for libel after an unidentified person posted a message on an AOL bulletin board advertising “Naughty Oklahoma T-Shirts.” The ad depicted shirts featuring slogans, described by the appeals court as “offensive and tasteless,” related to the 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, and invited those interested in purchasing the shirts to call “Ken” at Zeran’s home phone number. After the first appearance of the ad, Zeran began to receive angry, sometimes threatening, phone calls. For the next four days, the unidentified person continued to post messages offering T-shirts, key chains and bumper stickers with bombing-related slogans.

In response to complaints from Zeran, AOL removed the ads and closed the account from which they were posted. As a matter of policy, however, the service refused to post a retraction.

In both the district and appellate courts, AOL argued that Section 230, which was unaffected by the Supreme Court’s 1997 ruling that parts of the CDA were unconstitutional, prohibited lawsuits against anyone besides the person who actually posted the message.

According to Judge J. Harvie Wilkinson, author of the appeals court opinion, the law protected AOL from Zeran’s lawsuit in the interests of encouraging free speech on interactive computer services.

“The specter of tort liability in an area of such prolific speech would have an obvious chilling effect,” he wrote. “It would be impossible for service providers to screen each of their millions of postings for possible problems. … Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.” (Zeran v. America Online; Media Counsel: Patrick Carome, Washington)