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Mary Anne Franks, Professor of Law at University of Miami School of Law.

Less than a week after the 1995 Oklahoma City bombing that left 168 people dead, Kenneth Zeran began receiving threatening phone calls at his home. He soon discovered the reason: without Zeran’s knowledge, an anonymous hoaxer had posted a message on an America Online (AOL) bulletin board advertising t-shirts and other paraphernalia glorifying the attack, providing Zeran’s home phone number for interested buyers to call. Although AOL complied with Zeran’s request that the message be removed, new messages with similar content continued to be posted to the site. At one point, Zeran was receiving threatening calls every two minutes. After an Oklahoma City radio station read the slogans on air and urged listeners to call Zeran, the phone calls became so threatening that Zeran’s house was placed under protective surveillance.

Zeran sued AOL for negligence, arguing that the company had failed to respond appropriately after being made aware of the nature of the posts. The case eventually made its way to the U.S. Court of Appeals for the Fourth Circuit, which held that Zeran’s claim was preempted by §230 of the Communications Decency Act (CDA). In reaching its decision, the court asserted that “Congress’ clear objective in passing §230 of the CDA was to encourage the development of technologies, procedures and techniques by which objectionable material could be blocked or deleted,” and holding AOL liable as a distributor for offensive content would conflict with this objective. The court reasoned that the possibility of distributor liability, which applies when a distributor is aware of the unlawful nature of the content, would prompt intermediaries like AOL to refrain from monitoring content at all.

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