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.
Like other circuits, the Fourth Circuit randomly assigns three judges to a panel that reviews briefs, hears oral arguments, and issues decisions. The three judges assigned to the Zeran case were Donald S. Russell, a former South Carolina governor and U.S. Senator appointed by President Nixon in 1971; North Carolina district judge Terrence Boyle, a former assistant to Republican Sen. Jesse Helms who was sitting on the Fourth Circuit by designation; and Wilkinson.
At first glance, Wilkinson might not appear to be the most likely candidate to articulate robust online speech rights that would endure for decades. Wilkinson had served in the Reagan Justice Department, and was appointed to the Fourth Circuit by Reagan in 1984. Overall, Wilkinson had the reputation of a reliable conservative jurist.
But there was one tidbit in his biography that might provide some hope for the lawyers defending America Online: before joining the Justice Department, Wilkinson was the editorial page editor of the Virginian Pilot newspaper in Norfolk. And since joining the court, he has issued strong opinions in favor of free speech protections that often deviate from the rulings of other Republican appointees. In some cases, his First Amendment views have been stronger than those of solidly liberal jurists.
Wilkinson’s first major statement about free speech came less than three years after he joined the Fourth Circuit. In 1986, a panel of three Fourth Circuit judges (not including Wilkinson), affirmed a verdict against the publisher of Hustler magazine stemming from a parody of the plaintiff, Rev. Jerry Falwell. Hustler asked the full Fourth Circuit to review the three-judge panel’s opinion.
The Fourth Circuit declined to rehear the case, and Wilkinson issued a blistering dissent from the denial. Hustler, he acknowledged, is “a singularly unappealing beneficiary of First Amendment values and serves only to remind us of the costs a democracy must pay for its most precious privilege of open political debate,” Wilkinson wrote. Nonetheless, he wrote, the First Amendment prevents public figures such as Falwell from recovering damages from a magazine due to the publication of a parody. The panel’s opinion “surely will operate as a powerful inhibitor of humorous and satiric commentary and ultimately affect the health and vigor of all political debate,” Wilkinson wrote.
The Supreme Court agreed with Wilkinson. Writing for a unanimous court in 1988, Chief Justice Rehnquist reversed the panel decision.
Also in 1988, Wilkinson joined a unanimous three-judge panel opinion that affirmed the Espionage Act conviction of a former Navy employee who sent top-secret satellite information about Soviet naval preparations to an English defense publication. The court’s opinion, written by Judge Russell, swiftly dismissed the defendant’s claims that his conviction violated the First Amendment.
Wilkinson agreed with the ultimate outcome, but he wrote a separate concurring opinion to stress the importance of the First Amendment, even in national security cases. “I do not think the First Amendment interests here are insignificant,” Wilkinson wrote. “Criminal restraints on the disclosure of information threaten the ability of the press to scrutinize and report on government activity. There exists the tendency, even in a constitutional democracy, for government to withhold reports of disquieting developments and to manage news in a fashion most favorable to itself. Public debate, however, is diminished without access to unfiltered facts.”
A few years later, Judge Wilkinson wrote an opinion reversing a defamation and invasion of privacy judgment against a trade publication brought by the subject of one of its articles, a whistleblower who had worked at the National Cancer Institute. The court held that the whistleblower was a public figure who, under the First Amendment, must demonstrate that the publication acted with actual malice, a very high standard.
“It would be ideal if the truth or falsity of every charge could be instantly determined by the press,” Wilkinson wrote. “Unfortunately, however, truth or falsity is often not instantly ascertainable. In the hurly burly of political and scientific debate, some false (or arguably false) allegations fly. The press, however, in covering these debates, cannot be made to warrant that every allegation that it prints is true.”
True to his newspaper roots, many of Wilkinson’s opinions recognize the need for strong legal protections for the media to be a watchdog of the government. For instance, during the 1998 elections, the weekly St. Mary’s Today newspaper in Maryland was particularly critical of political allies of the county sheriff. On the night before the election, off-duty sheriff’s deputies visited 40 stores and 40 news boxes and bought out the copies of the newspaper. The newspaper sued the sheriff and other county officials, alleging a violation of the First Amendment. The district court granted summary judgment to the defendants. In a 2003 opinion, Judge Wilkinson wrote a unanimous opinion reversing the district court.
“The incident in this case may have taken place in America, but it belongs to a society much different and more oppressive than our own,” Wilkinson wrote. “If we were to sanction this conduct, we would point the way for other state officials to stifle public criticism of their policies and their performance.”
Unlike Wilkinson’ other free-speech cases, Zeran did not require him to apply the First Amendment; his decision was based entirely on his interpretation of §230. Yet Wilkinson managed to make similarly strong pronouncements about free speech, even when applying an obscure new communications statute.
Wilkinson read §230 as accomplishing Congress’s broad goal of fostering free and open online speech. “The amount of information communicated via interactive computer services is therefore staggering,” he wrote. “The specter of tort liability in an area of such prolific speech would have an obvious chilling effect. It would be impossible for service providers to screen each of their millions of postings for possible problems.”
Zeran, like Wilkinson’s other opinions, recognized a strong free speech right. But the result was not entirely predictable. In fact, Wilkinson’s background as a journalist might have made him more likely to rule in favor of Zeran. America Online was asking Wilkinson to recognize free speech rights for Internet companies that exceeded the protections of the First Amendment. When Wilkinson was editorial page editor, his newspaper did not receive the same protection for printing letters to the editor that America Online was seeking in Zeran’s case. Why should America Online receive immunity that the Virginian Pilot does not receive?
Still, Wilkinson continued his track record as a defender of free speech, even in a new medium. Another judge, working from a blank slate with no other appellate court interpretation of §230, might have adopted a much narrower view of §230. The judge could have agreed with Zeran’s lawyers that §230 no longer immunized online services once they received notice of illegal user content.
But once the Fourth Circuit issued Wilkinson’s opinion, it was impossible for other judges to ignore. In some of the early court rulings interpreting §230, judges reluctantly immunized online services for claims arising from user content. They cited Zeran and ultimately agreed with the outcome, but not always with the same level of enthusiasm as Wilkinson.
For instance, five months after the Fourth Circuit ruled against Zeran, District of Columbia federal judge Paul L. Friedman dismissed a defamation case against America Online filed by a former Bill Clinton aide. America Online had provided users with access to Drudge Report, which alleged that the aide had abused his wife. Section 230, Friedman ruled, required him to dismiss the case. He relied heavily on Wilkinson’s Zeran opinion, including a block quote from the opinion of more than 250 words.
But Friedman appeared unhappy with the outcome. He wrote that §230 is “some sort of tacit quid pro quo arrangement” between Congress and service providers.
“Because it has the fight to exercise editorial control over those with whom it contracts and whose words it disseminates, it would seem only fair to hold AOL to the liability standards applied to a publisher or, at least, like a book store owner or library, to the liability standards applied to a distributor,” Friedman wrote. “But Congress has made a different policy choice by providing immunity even where the interactive service provider has an active, even aggressive role in making available content prepared by others.”
Had a judge who shared Friedman’s reservations about §230 been the first to issue a binding interpretation of the statute, the next two decades of §230 precedent—and the landscape of the Internet—might have been quite different.
Jeff Kosseff is an assistant professor of cybersecurity law at the United States Naval Academy. He is writing a book about the history of §230, “The Twenty-Six Words that Created the Internet,” for Cornell University Press.
This essay is part of a larger collection about the impact of Zeran v. AOL curated by Eric Goldman and Kosseff.