Bodies of the victims of the April 19, 1995, bombing of the A. P. Murrah Federal Building in Oklahoma City were still being removed from the rubble on April 25 when an anonymous post appeared on AOL advertising “Naughty Oklahoma T-Shirts” for sale. The post used the screen name “Ken ZZ03” and said that items could be purchased by calling a Seattle phone number and asking for “Ken.” Similar posts advertising T-shirts and other items, from screen names “Ken ZZ033” and “Ken Z033,” appeared during the few days following. Each of the posts listed the same Seattle phone number and directed a caller to “Ask for Ken.” The phone number belonged to Ken Zeran, a Seattle resident who knew nothing about the posts.
The T-shirts being advertised bore tasteless slogans referring to the bombing (among the least offensive was “Visit Oklahoma–It’s a Blast”). Needless to say, AOL users were appalled–more accurately, angry–at the posts. So many decided to call “Ken” at the Seattle number and share their disgust that the phone rang incessantly for weeks, gradually tapering off in mid–May after local press in Oklahoma City exposed the postings as a cruel hoax using fake AOL accounts.
Around May 1, an AOL user emailed a copy of the April 25 post to Mark Shannon, who co–hosted a morning–drive talk show called “Shannon and Spinozi” on “classic rock” radio station KRXO in Oklahoma City. Shannon read the post on the air on May 1, including the Seattle phone number, and he and Spinozi expressed their views about the crude person who would post something so offensive online. They urged KRXO listeners to call the Seattle number, “ask for Ken,” and tell Ken what they thought of him. Zeran, of course, didn’t hear the broadcast, but he heard from lots of callers who did. Zeran called the KRXO general manager and, after learning of the content of the AOL post, demanded a retraction. The station didn’t do a retraction, but during drive time on the afternoon of May 1 and again the next morning, KRXO said that the man at the Seattle phone number claimed he was not connected to the AOL posts. That apparently didn’t satisfy Zeran; he sued KRXO, owned by Diamond Broadcasting, in January 1996, four months before he sued AOL.
Zeran alleged in the suit, filed in federal court in Oklahoma City, that the KRXO broadcast about the AOL post defamed him, invaded his privacy by placing him in an offensive false light, and intentionally inflicted emotional distress on him. The station, of course, didn’t have a Section 230 defense, but it moved to dismiss the complaint, arguing that Zeran had failed to state a claim. The court denied the motion, saying that the complaint “barely satisfies” the federal pleading standards. After discovery, KRXO moved for summary judgment.
The court granted the summary judgment motion (19 F. Supp.2d 1249 (W.D. Okla. 1997)). As for Zeran’s defamation claim, the court said it didn’t need to deal with some of the subtleties of Oklahoma defamation law such as special damages or whether KRXO’s broadcast was “of and concerning” Zeran that were part of KRXO’s argument; the simple fact was that defamation law protected reputation, and the court bought into KRXO’s argument that Zeran couldn’t identify a single person in the world who thought less of him after the broadcast than they did before. The false light claim fell, too, because there was no evidence that at the time of the broadcast Shannon or KRXO knew or recklessly disregarded the fact the AOL post was a hoax, and Zeran’s proof of that “actual malice” was essential to his recovery. Finally, the intentional infliction claim was not supported by any evidence, the court said, that Shannon’s publication of the AOL post was extreme and outrageous under the circumstances, a requirement for recovery of damages under Oklahoma law. The court wrote that it sympathized with the unfortunate events Zeran experienced, but it concluded that he had no legal remedy against KRXO.
Zeran wasn’t satisfied with the district court’s judgment, so he appealed to the U.S. Court of Appeals for the Tenth Circuit. The appellate court was overly solicitous of Zeran–describing him as “an accomplished artist, photographer, and film maker”–but it was no more inclined to find him entitled to legal relief than was the district court. The Tenth Circuit affirmed the judgment in favor of Diamond Broadcasting (203 F.3d 714 (10th Cir. 2000)). With respect to the defamation claim, the circuit court affirmed on the ground that the evidence was insufficient to establish that Zeran suffered any loss of reputation; no one who heard the broadcast or called him even knew his last name. It also affirmed on the ground mentioned only in passing by the district court (but that seemed to capture the attention of the appellate panel during oral argument): that the particular kind of defamation claim asserted by Zeran–slander per quod–required proof of special damages under Oklahoma law, and neither emotional distress nor de minimis medical expenses qualified.
Zeran’s false light and intentional infliction claims didn’t pass muster, either, in the Tenth Circuit. The court affirmed the judgment on the false light claim on the ground there was no evidence of reckless disregard of falsity; and it rejected Zeran’s call to employ a negligence fault standard in place of the “actual malice” requirement adopted by the Oklahoma Supreme Court. (The Tenth Circuit declined to certify the question to the Oklahoma court.) The appellate court concluded that there was no evidence that Shannon and Spinozi had actual knowledge of probable falsity of the AOL post, and the court said that such subjective actual knowledge could not be established by the proffer of expert testimony. The intentional infliction claim also failed, the Tenth Circuit said, because proof of reckless disregard of falsity was required for the IIED claim just like it was for false light. The court also concluded that as a matter of law that Zeran’s emotional distress was not so severe that a reasonable person should not be expected to endure it, a conclusion that was also fatal to the intentional infliction claim.
The Tenth Circuit gave KRXO a small bonus on top of affirming the judgment in its favor. The district court, saying it did not condone Shannon’s on–air commentary, denied an award of costs to KRXO. The station cross–appealed the denial of its costs motion. The appellate court, while recognizing that an award of costs lies within the discretion of the district court, concluded that in this case the lower court had abused its discretion in denying costs because of the court’s personal disapprobation of the defendant’s conduct. The Tenth Circuit held “that the district court’s own view of extra–judicial conduct, which the law does not recognize as legally actionable, should play no part in the district court’s decision whether to override the presumption that the prevailing party receives costs.”
The name Zeran will always be famously associated with his case against AOL, because the seminal decision broadly interpreting the protections of Section 230 had a universal impact beyond the affirmance of summary judgment in favor of KRXO in a traditional speech–based tort case under Oklahoma law. The Diamond Broadcasting case, however, at least for those in Oklahoma, will be remembered and appreciated as well. The case against KRXO started before Zeran sued AOL, and the Tenth Circuit did not render its opinion until 26 months after the Fourth Circuit issued the AOL opinion and nearly 19 months after the U.S. Supreme Court denied Zeran’s petition for certiorari. Zeran v. Diamond Broadcasting is often cited by Oklahoma defendants in defamation and other cases for the helpful principles that underlie both the district court and Tenth Circuit opinions. In their own way, those pinpoint holdings in Diamond Broadcasting are almost as impactful as the far–reaching decision in AOL. Zeran should be appreciated for having advanced the law the way he did; and in a strange way, First Amendment practitioners and internet users should be thankful for the anonymous poster who used the Oklahoma City bombing to offend us all.
Robert “Bob” D. Nelon, a shareholder at Hall Estill in Oklahoma City, is a leading resource on Media and First Amendment Law issues. Nelon has been named Best Lawyers’ 2013 Oklahoma City Litigation – First Amendment “Lawyer of the Year”, a Best Lawyer in America in First Amendment Law and Litigation-First Amendment and has been recognized as an Oklahoma Super Lawyer in First Amendment, as well as Media and Advertising Law.