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Bad Words and Good Samaritans: Defamatory Speech in Cyberspace
Unformatted Document Text:  18 What makes this case particularly notable, however, is a vigorous dissent by Justice Lewis that echoed the themes previously identified by the critics of Zeran. According to the dissent, one of the primary goals of the CDA was to promote “decency” on the Internet. Given that fact, Justice Lewis wondered, “What conceivable good could a statute purporting to promote ISP self-policing efforts do if, by virtue of the courts’ interpretation of that statute, an ISP which is specifically made aware of child pornography being distributed by an identified customer through solicitation occurring on its service, may, with impunity, do absolutely nothing, and reap the economic benefits flowing from the activity?” (p. 1024-1025). Reasoning that such “an absurd interpretation is totally unwarranted” (p. 1025), Lewis concluded that “the blanket immunity interpretation adopted by the majority today thrusts Congress into the unlikely position of having enacted legislation that encourages and protects the involvement of ISP’s as silent partners in criminal enterprises for profit” (p. 1028). Instead of absolving AOL of all responsibility, the dissent would adopt a more pragmatic stance and hold AOL legally responsible once it had received formal notice. In this instance, AOL’s failure to promptly respond to Jane Doe’s complaint might be used to demonstrate negligence. While AOL could not be held liable as a publisher, the dissent claims that Zeran incorrectly extended Section 230 to preclude distributor liability. In the process, Zeran transformed the language “from an appropriate shield into a sword of harm and extreme danger which places technology buzz words and economic considerations above the safety and general welfare of our people” (p. 1020). To prevent this disastrous result, the dissent argues that Section 230 should be interpreted to hold AOL responsible for failing to remove Russell’s messages marketing child pornography once Jane Doe had complained about their content. Such an interpretation, Lewis suggests, would be consistent with the narrow legislative intent of

Authors: Herbeck, Dale.
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18
What makes this case particularly notable, however, is a vigorous dissent by Justice
Lewis that echoed the themes previously identified by the critics of Zeran. According to the
dissent, one of the primary goals of the CDA was to promote “decency” on the Internet. Given
that fact, Justice Lewis wondered, “What conceivable good could a statute purporting to promote
ISP self-policing efforts do if, by virtue of the courts’ interpretation of that statute, an ISP which
is specifically made aware of child pornography being distributed by an identified customer
through solicitation occurring on its service, may, with impunity, do absolutely nothing, and reap
the economic benefits flowing from the activity?” (p. 1024-1025). Reasoning that such “an
absurd interpretation is totally unwarranted” (p. 1025), Lewis concluded that “the blanket
immunity interpretation adopted by the majority today thrusts Congress into the unlikely position
of having enacted legislation that encourages and protects the involvement of ISP’s as silent
partners in criminal enterprises for profit” (p. 1028).
Instead of absolving AOL of all responsibility, the dissent would adopt a more pragmatic
stance and hold AOL legally responsible once it had received formal notice. In this instance,
AOL’s failure to promptly respond to Jane Doe’s complaint might be used to demonstrate
negligence. While AOL could not be held liable as a publisher, the dissent claims that Zeran
incorrectly extended Section 230 to preclude distributor liability. In the process, Zeran
transformed the language “from an appropriate shield into a sword of harm and extreme danger
which places technology buzz words and economic considerations above the safety and general
welfare of our people” (p. 1020). To prevent this disastrous result, the dissent argues that
Section 230 should be interpreted to hold AOL responsible for failing to remove Russell’s
messages marketing child pornography once Jane Doe had complained about their content. Such
an interpretation, Lewis suggests, would be consistent with the narrow legislative intent of


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