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Bad Words and Good Samaritans: Defamatory Speech in Cyberspace
Unformatted Document Text:  17 against the interests of citizens harmed by defamatory statements posted to the Internet and around the world.” To prevent such an outcome, Boehm concludes “Future courts must attempt to strike a balance between regulating the Internet and providing relief to plaintiffs.” As this summary of the criticism of Zeran and its progeny is abstract, it may be helpful to consider a case that places these considerations in a graphic context: Jane Doe v. America Online (2001). While this Florida case does not involve defamation per se, it speaks to the question of whether section 230 should absolve ISPs of all responsibility for material that they distribute for their subscribers. In this case, Jane Doe filed suit on behalf of John Doe, her eleven-year-old son. The mother claimed that Richard Lee Russell had lured her son and two other minors to engage in sexual activity with Russell and with each other. The mother further asserted that Russell had photographed and videotaped these acts and used AOL to market this material. After Russell confessed to receiving and distributing child pornography, Jane Doe filed a complaint against AOL alleging, among other things, that the ISP was negligent for allowing Russell and others like him to market child pornography. Doe further alleged that AOL had been apprised of Russell’s activities and that the ISP had taken no action against Russell. In its defense, AOL argued that Section 230 of the Communications Decency Act barred the complaint. A Palm Beach court dismissed Doe’s suit claiming it was barred by federal law and this ruling was upheld by the 4th District Court of Appeals. Finding that there were legitimate concerns, the appeals court certified several issues for the state’s Supreme Court. Relying heavily on Zeran, the Florida Supreme Court upheld the dismissal in a narrow 4-3 decision. In the words of the majority, “Section 230 expressly bars ‘any actions’ and we are compelled to give the language of this preemptive law its plain meaning” (p. 1018). This meant that Jane Doe had no cause of action under state or local law against AOL.

Authors: Herbeck, Dale.
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against the interests of citizens harmed by defamatory statements posted to the Internet and
around the world.” To prevent such an outcome, Boehm concludes “Future courts must attempt
to strike a balance between regulating the Internet and providing relief to plaintiffs.”
As this summary of the criticism of Zeran and its progeny is abstract, it may be helpful to
consider a case that places these considerations in a graphic context: Jane Doe v. America Online
(2001). While this Florida case does not involve defamation per se, it speaks to the question of
whether section 230 should absolve ISPs of all responsibility for material that they distribute for
their subscribers. In this case, Jane Doe filed suit on behalf of John Doe, her eleven-year-old
son. The mother claimed that Richard Lee Russell had lured her son and two other minors to
engage in sexual activity with Russell and with each other. The mother further asserted that
Russell had photographed and videotaped these acts and used AOL to market this material. After
Russell confessed to receiving and distributing child pornography, Jane Doe filed a complaint
against AOL alleging, among other things, that the ISP was negligent for allowing Russell and
others like him to market child pornography. Doe further alleged that AOL had been apprised of
Russell’s activities and that the ISP had taken no action against Russell. In its defense, AOL
argued that Section 230 of the Communications Decency Act barred the complaint.
A Palm Beach court dismissed Doe’s suit claiming it was barred by federal law and this
ruling was upheld by the 4th District Court of Appeals. Finding that there were legitimate
concerns, the appeals court certified several issues for the state’s Supreme Court. Relying
heavily on Zeran, the Florida Supreme Court upheld the dismissal in a narrow 4-3 decision. In
the words of the majority, “Section 230 expressly bars ‘any actions’ and we are compelled to
give the language of this preemptive law its plain meaning” (p. 1018). This meant that Jane Doe
had no cause of action under state or local law against AOL.


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