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Online free speech case appealed to Supreme Court

June 2, 1998
Web posted at: 5:45 p.m. EDT

by Patrick Thibodeau

(IDG) -- Shortly after the 1995 Oklahoma City bombing, someone posted a message on an America Online, Inc. bulletin board advertising "Naughty Oklahoma T-shirts. The T-shirts sporting their tasteless slogans prompted many people to call "Ken," the name signed on the message, to complain.

Kenneth Zeran's phone was soon ringing once every two minutes, as callers dished out abuse and occasional death threats. He complained to AOL, which deleted the message. New ones appeared.

Zeran later sued America Online, arguing the company was legally liable for the online messages. But so far, he's been fighting a losing battle, most recently as the case reached the U.S. Fourth Circuit Court of Appeals in North Carolina. He's now taking his case to the Supreme Court to challenge the law that has, so far, been his foe - the Communications Decency Act.

Zeran's attorney, John S. Edwards in Roanoke, Va., argued that the CDA wasn't intended to provide blanket immunity, and that its legal protections apply only when an Internet service provider acts in good faith to block material that causes harm.

"Unless you can hold them [an Internet service provider] accountable through civil liability ... there is no way to induce them to carry out their responsibilities in blocking in good faith," Edwards said.

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The CDA essentially treats Internet service providers as common carriers - much like telephone companies. This means they are information conduits and aren't liable for messages that their services carry. America Online has previously prevailed against a similar argument raised in a libel suit filed by White House adviser Sidney Blumenthal against Internet columnist Matt Drudge over material he published.

But if Zeran prevails, "then [Internet service providers] would be in the same situation as all other media," such as newspapers, television and radio, said David Sobel, legal counsel at the Electronic Privacy Information Center, a nonprofit advocacy group in Washington. As it now stands, he said, an access provider could knowingly post false information on its opening page and "then throw up their hands and say they didn't generate it, we're not the publisher of it."

Sobel, citing previous court rulings, said congressional action may be needed to change the law. "I think the implications of this provision were not well understood at the time it was enacted," he said.

In a recent brief to the Supreme Court, America Online argued that the appeals court reached the correct decision, and that the case "raises no significant legal issue worthy of review."

America Online also said Congress' intent was not to deter online speech by punishing the intermediary, "but by strengthening the enforcement of legal remedies against the culpable source of the unlawful content."