The conventional wisdom about §230 is that the tech sector is lucky that Zeran v. America Online was the first federal appellate decision to interpret the statute. By affirming the dismissal of Ken Zeran’s lawsuit against America Online, the U.S. Court of Appeals for the Fourth Circuit set a precedent that would be difficult for other federal and state courts to overlook. A case involving circumstances that were even more tragic than Zeran’s might have resulted in a different first interpretation of §230.
But the outcome in Zeran v. America Online is not entirely a result of the facts of the case. Section 230 caselaw might look very different today had other judges been assigned to Zeran v. America Online. In particular, then-Chief Judge J. Harvie Wilkinson III’s authorship of the Zeran opinion was crucial.
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