While hard cases often make bad law, occasionally they also make good law, often by accident. And few cases are harder or made better law than Zeran v. America Online, Inc.(4th Cir. 1997), in which the court held that §230 of the Communications Decency Act of 1996 (CDA) exempts internet service providers (ISPs) from liability for statements made by third parties.

Many commentators believe Zeran “saved the internet” by enabling ISPs to permit unfiltered speech. But others argue Zeran misinterpreted §230, which was intended to encourage ISPs to filter speech. I think Zeran reached the right result, whatever Congress intended §230 to accomplish, because AOL wasn’t liable under the common law rule, either.

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