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Bad Words and Good Samaritans: Defamatory Speech in Cyberspace
Unformatted Document Text:  10 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” (Zeran, 1997b, p. 330). The Fourth Circuit’s rationale was simple: There are millions of postings on computer bulletin boards. If ISPs were responsible for screening all such messages, providers would have no choice but to “severely restrict the number and type of messages posted. Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect” (p. 331). The Fourth Circuit was equally unimpressed by Zeran’s effort to navigate around Section 230 by distinguishing between publisher and distributor liability. “Assuming arguendo that Zeran has satisfied the requirements for imposition of distributor liability,” the court noted, “this theory of liability is merely a subset, or a species, of publisher liability, and is therefore also foreclosed by Section 230” (p. 332). Looking beyond the subset question, the court concluded, “Zeran simply attaches too much importance to the presence of the distinct notice element in distributor liability. The simple fact of notice surely cannot transform one from an original publisher to a distributor in the eyes of the law” (p. 332). The Supreme Court denied certiorari (Zeran, 1998). Internet Service Providers and Beyond Zeran provided “a clear First Amendment precedent for the view that ISPs enjoy broad immunity for such third-party material” (O’Neil, 1998, p. 628). Subsequent decisions have consistently cited this precedent to support the conclusion that Section 230 bars suit under federal

Authors: Herbeck, Dale.
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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” (Zeran, 1997b, p. 330). The Fourth Circuit’s rationale was simple: There
are millions of postings on computer bulletin boards. If ISPs were responsible for screening all
such messages, providers would have no choice but to “severely restrict the number and type of
messages posted. Congress considered the weight of the speech interests implicated and chose to
immunize service providers to avoid any such restrictive effect” (p. 331).
The Fourth Circuit was equally unimpressed by Zeran’s effort to navigate around Section
230 by distinguishing between publisher and distributor liability. “Assuming arguendo that
Zeran has satisfied the requirements for imposition of distributor liability,” the court noted, “this
theory of liability is merely a subset, or a species, of publisher liability, and is therefore also
foreclosed by Section 230” (p. 332). Looking beyond the subset question, the court concluded,
“Zeran simply attaches too much importance to the presence of the distinct notice element in
distributor liability. The simple fact of notice surely cannot transform one from an original
publisher to a distributor in the eyes of the law” (p. 332). The Supreme Court denied certiorari
(Zeran, 1998).
Internet Service Providers and Beyond
Zeran provided “a clear First Amendment precedent for the view that ISPs enjoy broad
immunity for such third-party material” (O’Neil, 1998, p. 628). Subsequent decisions have
consistently cited this precedent to support the conclusion that Section 230 bars suit under federal


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