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<i>Zeran v. AOL</i> and Its Inconsistent Legacy

By Ian C. Ballon

In January 1996, shortly after it was enacted, I wrote one of the first articles on the Good Samaritan exemption created by the Telecommunications Act of 1996 (47 U.S.C. §230(c) — popularly referred to as the Communications Decency Act (CDA)), correctly arguing that it preempted claims against interactive computer service providers and users, not merely for defamation, but for a broad array of claims. I did not, however, envision that subsection 230(c)(1) would be construed as broadly as it has been over the past two decades, or that subsection 230(c)(2) would be applied as infrequently. Indeed, when the district court and then the circuit court decided Zeran v. AOL, 129 F.3d 327 (1997), I was critical of their analytic approach, as some may remember from early articles in The Cyberspace Lawyer.

The law, however, is written by courts, not commentators, and the rule of Zeran has been uniformly applied by every federal circuit court to consider it and by numerous state courts. And it has never been rejected in any precedential opinion. Indeed, it is perhaps a fitting tribute to the viability of Zeran that 20 year later the U.S. Court of Appeals for the Ninth Circuit, in its 12th opinion construing the CDA, barely spent even a sentence affirming dismissal of a defamation claim brought against Facebook over user content, pursuant to the CDA and the rule first developed in Zeran. See, Caraccioli v. Facebook, _ F. App'x _, 2017 WL 2445063 (9th Cir. 2017).

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