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Bad Words and Good Samaritans: Defamatory Speech in Cyberspace
Unformatted Document Text:  6 not kept pace with the technology) so that there is a real need for some precedent” (Stratton Oakmont, 1995b, p. 850). Although the Stratton Oakmont case was never tried, the holding that Prodigy is a publisher raised difficult First Amendment issues. Even if the precedent was narrowly limited to New York State, “its effect could reach far beyond the Empire State. For example, if a Prodigy customer in Memphis or Phoenix writes a libelous message about a person in New York, the New Yorker could sue Prodigy, and win” (Bray, 1995, p. 51). Moreover, the precedent created the real possibility that on-line services might be held responsible when subscribers used their bulletin boards to violate the rights of third parties. “By equating content control with fault,” Siver (1997) explained, “Stratton presents online service providers with two unenviable options for avoiding defamation liability: providers must either bear the immense burden of comprehensive screening for defamation or abandon all content control efforts in order to avoid being labeled a publisher” (p. 17). Section 230 and Zeran v. America Online The Stratton Oakmont decision was very much on legislators’ minds when Congress considered adopting the Communications Decency Act (CDA) in 1996. If, as some legislators wanted, an ISP actively screened content for sexually explicit speech, future plaintiffs might claim the ISP had become a “publisher,” and therefore liable for the contents of defamatory postings made by users. Fearing that this possibility would discourage ISPs from aggressively enforcing the CDA, legislators included Section 230 which stipulates that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (Section 230 (c)(1)). Congress also added a

Authors: Herbeck, Dale.
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not kept pace with the technology) so that there is a real need for some precedent” (Stratton
Oakmont, 1995b, p. 850).
Although the Stratton Oakmont case was never tried, the holding that Prodigy is a
publisher raised difficult First Amendment issues. Even if the precedent was narrowly limited to
New York State, “its effect could reach far beyond the Empire State. For example, if a Prodigy
customer in Memphis or Phoenix writes a libelous message about a person in New York, the
New Yorker could sue Prodigy, and win” (Bray, 1995, p. 51). Moreover, the precedent created
the real possibility that on-line services might be held responsible when subscribers used their
bulletin boards to violate the rights of third parties. “By equating content control with fault,”
Siver (1997) explained, “Stratton presents online service providers with two unenviable options
for avoiding defamation liability: providers must either bear the immense burden of
comprehensive screening for defamation or abandon all content control efforts in order to avoid
being labeled a publisher” (p. 17).
Section 230 and Zeran v. America Online
The Stratton Oakmont decision was very much on legislators’ minds when Congress
considered adopting the Communications Decency Act (CDA) in 1996. If, as some legislators
wanted, an ISP actively screened content for sexually explicit speech, future plaintiffs might
claim the ISP had become a “publisher,” and therefore liable for the contents of defamatory
postings made by users. Fearing that this possibility would discourage ISPs from aggressively
enforcing the CDA, legislators included Section 230 which stipulates that “No provider or user
of an interactive computer service shall be treated as the publisher or speaker of any information
provided by another information content provider” (Section 230 (c)(1)). Congress also added a


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