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Bad Words and Good Samaritans: Defamatory Speech in Cyberspace
Unformatted Document Text:  15 (Boehm, 1998; Butler, 1999/2000; Davis, 2002; “Developments in the Law,” 1999; Goldstein, 2000; Hallett, 2001; Holmes, 2001; Kane, 1999; Langdon, 1999; Masur, 2000; Mirmira, 2000; Pantazis, 1999; Patel, 2002; Sheridan, 1997; Slitt, 1998; Spencer, 2000; Waldman, 1999; and Wiener, 1999) of both Section 230 and the Zeran interpretation in the legal literature. Although a comprehensive summary of this critique is beyond the scope of this analysis, several broad strands of argument have emerged. Zeran and the Critics First, critics have argued that the line of cases commencing with Zeran goes well beyond Congressional intent. According to this line of reasoning, Congress only intended to exempt ISPs from publisher liability, not from distributor liability when it adopted Section 230. The significance of this point was more fully elaborated in a note appearing in the Harvard Law Review that thoughtfully observed The legislation did not explicitly exempt ISPs from distributor liability, and its specific reference to “publisher or speaker” is evidence that Congress intended to leave distributor liability intact. Nevertheless, in the first case to test the legislation, Zeran v. America Online, Inc., the Fourth Circuit held that 230 immunized defendant America Online from both publisher and distributor liability for alleged defamatory statements on its electronic bulletin boards. The court based its holding on a questionable interpretation of the word “publisher,” stating that “distributor” was merely a subset of the word “publisher” (“Developments in the Law,” 1613). “This judicial gloss on defamation liability,” Spencer (2000) continues, “shifted provider liability from the strict application in Stratton Oakmont, to the prerequisite standard of knew or should

Authors: Herbeck, Dale.
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(Boehm, 1998; Butler, 1999/2000; Davis, 2002; “Developments in the Law,” 1999; Goldstein,
2000; Hallett, 2001; Holmes, 2001; Kane, 1999; Langdon, 1999; Masur, 2000; Mirmira, 2000;
Pantazis, 1999; Patel, 2002; Sheridan, 1997; Slitt, 1998; Spencer, 2000; Waldman, 1999; and
Wiener, 1999) of both Section 230 and the Zeran interpretation in the legal literature. Although a
comprehensive summary of this critique is beyond the scope of this analysis, several broad
strands of argument have emerged.
Zeran and the Critics
First, critics have argued that the line of cases commencing with Zeran goes well beyond
Congressional intent. According to this line of reasoning, Congress only intended to exempt
ISPs from publisher liability, not from distributor liability when it adopted Section 230. The
significance of this point was more fully elaborated in a note appearing in the Harvard Law
Review that thoughtfully observed
The legislation did not explicitly exempt ISPs from distributor liability, and its specific
reference to “publisher or speaker” is evidence that Congress intended to leave distributor
liability intact. Nevertheless, in the first case to test the legislation, Zeran v. America
Online, Inc., the Fourth Circuit held that 230 immunized defendant America Online from
both publisher and distributor liability for alleged defamatory statements on its electronic
bulletin boards. The court based its holding on a questionable interpretation of the word
“publisher,” stating that “distributor” was merely a subset of the word “publisher”
(“Developments in the Law,” 1613).
“This judicial gloss on defamation liability,” Spencer (2000) continues, “shifted provider liability
from the strict application in Stratton Oakmont, to the prerequisite standard of knew or should


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