Zeran v. AOL Appellate Brief

IN THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

KENNETH M. ZERAN,
Plaintiff-Appellant,

v.

AMERICA ONLINE, INC.,
Defendant-Appellee.

No. 97-1523

STATEMENT OF JURISDICTION

Appellee America Online, Inc. ("AOL") hereby adopts and incorporates by reference the "Statement of Subject Matter and Appellate Jurisdiction" set out in the brief of Appellant Kenneth M. Zeran ("Zeran"). (See Brief of Appellant ("Zeran Br.") at 1-2.)

STATEMENT OF ISSUES

1. Whether the District Court correctly concluded that 47 U.S.C. § 230, which prohibits treating providers of interactive computer services such as AOL as the "publisher or speaker" of third-party content, bars Plaintiff’s claims against AOL for allegedly failing to prevent the dissemination of messages created and posted on AOL’s system by a third party?

2. Whether 47 U.S.C. § 230 governs this action, which was filed after the statute’s enactment but which involves events that allegedly occurred before enactment, when (a) the statute expressly prescribes that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section" and (b) Plaintiff can show no reliance on pre-existing law?

STATEMENT OF THE CASE

Plaintiff Zeran filed this action against Defendant AOL claiming that AOL was liable in tort for damages allegedly resulting from its allegedly negligent failure to "screen" or "block" allegedly defamatory messages posted on its system by an unknown third party. (Joint Appendix 15-16 ("J.A.").) AOL moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) on the ground that Zeran’s action was barred by 47 U.S.C. § 230. (J.A. 36-37.) The District Court granted AOL’s motion and dismissed Zeran’s Complaint, holding that his suit sought to treat AOL as the "publisher or speaker" of third-party content in contravention of Section 230 and that Section 230 applied even though the events alleged in the Complaint occurred before the statute’s enactment. (J.A. 66-94.)

STATEMENT OF FACTS

AOL operates an interactive computer service over which millions of subscribers disseminate and receive information by means of computer modem connections to AOL’s computer network. Much of the information transmitted over AOL’s service originates with AOL subscribers, who may transmit information over AOL’s service through a variety of methods, including electronic mail (private electronic communications addressed to specific recipients) and message boards (topical fora in which subscribers may post messages that are then generally available for review by other subscribers). (Dist. Ct. Op., J.A. 68-69.)

According to the Complaint,^/ on April 25, 1995, a "currently unidentified person" using the screen name "Ken ZZ03"^/ posted on an AOL message board a message advertising "Naughty Oklahoma T-Shirts" with "grossly offensive" slogans referring to the bombing of the federal building in Oklahoma City. (Complaint ¶ 5, J.A. 6-7.) The message indicated that anyone interested in the t-shirts should contact "Ken" and listed a phone number that belonged to Zeran’s business. (Id. ¶ 5, Ex. A; J.A. 6-7, 18.) After Zeran learned of the message from a reporter’s phone call, he allegedly informed AOL that the posting was a hoax and asked that it be removed. (Id. ¶¶ 6-7, J.A. 7.) Zeran allegedly began receiving "derogatory" and threatening phone calls as a result of the posted message. (Id. ¶ 8, J.A. 7.)

Shortly after being contacted by Zeran, AOL deleted the posted message. (Id. ¶ 10, J.A. 8.) But over the next three days (April 26 to April 28, 1995), an unidentified person (or persons) using two slightly different screen names posted three similar messages. (Id. ¶¶ 10, 15, 26; J.A. 8, 10, 12.) During this period, Zeran allegedly telephoned AOL on a number of occasions to request removal of the messages. (Id. ¶¶ 12-14, J.A. 8-10.) He allegedly continued to receive unwanted calls about the messages. (Id. ¶¶ 9, 11-13, 18; J.A. 7-11.)

On May 1, 1995, someone sent by electronic mail a copy of one of the posted messages to Mark Shannon, an announcer for radio station KRXO in Oklahoma City. (Id. ¶ 19, Ex. D; J.A. 11, 21-22.) That day, KRXO allegedly aired a broadcast in which Shannon read out parts of the message, "incited the audience to call plaintiff and gave plaintiff’s business phone number over the air." (Id. ¶ 20, J.A. 11.) As a result of the broadcast, Zeran allegedly "was bombarded with death threats and other forms of recrimination as well as violent language from Oklahoma City." (Id. ¶ 21, J.A. 11; see also id. ¶ 24, J.A. 12.)

Zeran does not allege that any of the messages at issue remained on AOL’s interactive computer service after May 1, 1995, or that any new offensive messages were posted after that date. (Id. ¶ 26, J.A. 12.) In addition, he does not allege that any particular message remained available on AOL’s service for longer than three days.^/ Although Zeran claims he continued to receive calls related to the message until May 14, 1995, he admits that some of those calls were apologies and even offers of assistance in the event of litigation. (Id. ¶¶ 29, 34, 36-39; J.A. 13-14.)

On January 4, 1996, Zeran filed suit in federal district court in Oklahoma against the owner of radio station KRXO.^/ (Dist. Ct. Op., J.A. 72.) In that suit, he alleges that the station’s broadcast in which Shannon read aloud portions of one of the posted messages constituted defamation, false light invasion of privacy, and intentional infliction of emotional distress. The suit against KRXO remains pending in Oklahoma.

On April 23, 1996, several months after suing KRXO and two months after enactment of 47 U.S.C. § 230, Zeran filed this separate action against AOL in the same Oklahoma district court. This suit seeks recovery for alleged reputational injury and emotional distress caused by the "incendiary, defamatory, and bogus postings." (Id. ¶ 47, J.A. 16.) Zeran alleges that, upon notice that the first message about Oklahoma City t-shirts was a hoax, AOL had a duty to take reasonable care not only to remove that message, but also to notify all AOL subscribers that it was fraudulent, and to employ some screening mechanism to prevent the posting of any subsequent messages containing Zeran’s name or telephone number. (Id. ¶¶ 42-43, J.A. 15.) Zeran posits these duties on the basis of his interpretation of a single district court decision applying the law of New York (id. ¶ 43, J.A. 15), a state whose law does not govern this suit. According to Zeran, AOL’s alleged failure to fulfill these purported duties constituted a tort of "negligent distribution." (Zeran Br. at 3.)

On October 16, 1996, the district court in Oklahoma entered an order granting AOL’s motion to transfer the case to the federal District Court for the Eastern District of Virginia.^/ After filing its Answer (J.A. 25-33), AOL moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) on the ground that 47 U.S.C. § 230, which prohibits treating interactive service providers such as AOL as the "publisher or speaker" of third-party content, barred Zeran’s action. (J.A. 36-37.)

On March 21, 1997, the District Court granted AOL’s motion and dismissed the Complaint. (J.A. at 66-94.) The court held that Section 230 preempted Zeran’s claim. (J.A. 82-90.) It concluded that Zeran’s cause of action for "negligent distribution" necessarily sought to treat AOL as the "publisher" of the allegedly harmful t-shirt messages because "liability for knowingly or negligently distributing defamatory material[] is merely a species or type of liability for publishing defamatory material." (Id. at 84-86.) The District Court also rejected Zeran’s argument that applying Section 230 to his suit would have an impermissible retroactive effect. (Id. at 90-93.) In particular, it found that Section 230’s command that "[n]o cause of action may be brought" under inconsistent state law "clearly reflects Congress’ intent to apply [Section 230] to all suits filed after its enactment, notwithstanding when the operative facts arose." (Id. at 92.)

SUMMARY OF ARGUMENT

Operation of Section 230: The District Court correctly held that Section 230 bars Zeran’s suit. Section 230 provides that "[n]o provider of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider" and further that "[n]o cause of action may be brought and no liability may be imposed" under any inconsistent state law. 47 U.S.C. §§ 230(c)(1), (d)(3). Zeran does not contest that AOL is the provider of an "interactive computer service" and that the messages at issue were "information provided by another information content provider." He contends only that his suit does not seek to treat AOL as the "publisher or speaker" of the third-party messages. But it clearly would do so in at least three different ways: (1) by putting AOL in the same legal position as the person who posted and thereby published the messages; (2) by imposing liability on AOL that, under well-settled common law principles, may be imposed only on a party who is deemed to have "published" harmful material; and (3) by requiring AOL to satisfy a standard of care that would compel it to undertake the quintessential duties of a traditional publisher.

Section 230's preamble and legislative history support the District Court’s ruling. They show that Congress intended to permit interactive computer services to develop unfettered by federal or state regulation and to deter harmful online speech through enforcement of laws against the originators of the speech, rather than by imposing liability on providers of interactive computer services, who are merely intermediaries. They also demonstrate Congress’s goal of removing disincentives for these providers to monitor for, and limit access to, harmful third-party material -- a goal that would be undermined by making them liable for injuries caused by third-party material whenever it could be said that they had "knowledge" or "notice" of such material.

Zeran cannot evade Section 230 by characterizing his suit as a claim for "negligent distribution." Regardless of how it is labeled, Zeran’s suit is, in essence, a defamation or related tort action that by definition treats AOL as the "publisher or speaker" of the allegedly false third-party messages. Zeran’s heavy reliance on Cubby v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991), a case decided years before enactment of Section 230 under New York law, is entirely misplaced. Indeed, Cubby itself stands for the proposition that an interactive computer service may not be held liable for harmful third-party content without being treated as the "publisher or speaker" of the content. At bottom, as the District Court properly recognized, Zeran’s notion of "distributor liability" is simply a species of "publisher liability" that treats the defendant as "the publisher" of third-party content in violation of Section 230.

Section 230’s Temporal Reach: Section 230 governs this case even though the events at issue allegedly occurred before its enactment. Under Landgraf v. USI Film Prods., 511 U.S. 244 (1994), Section 230 must be applied to cases involving pre-enactment events if Congress expressly prescribed that result. Congress did precisely that in Section 230 by providing that "[n]o cause of action may be brought and no liability may be imposed" under any inconsistent state law. 47 U.S.C. § 230(d)(3). This language clearly controls all suits filed after the enactment of Section 230, including Zeran’s.

Even if Congress’s intent were not clear, Section 230 would nonetheless control this case, because application of the statute to bar Zeran’s claim does not have a "retroactive effect" as defined in Landgraf. The presumption against statutory retroactivity serves to protect a party from the unfairness of changing the legal consequences of actions that he took in reliance on then-existing legal rules. But Zeran does not (and cannot) claim that his actions at the time of the events at issue were taken in reliance on pre-Section 230 law. The only action Zeran claims he took in reliance on pre-existing law -- namely planning to sue AOL -- is irrelevant to the retroactivity inquiry. Moreover, even if Zeran could show that pre-existing law would have supplied him with a cause of action against AOL, it is well settled that a statute that simply deprives a would-be plaintiff of an unfiled cause of action does not impair any "vested right" and therefore does not, under the basic Landgraf test, have a "retroactive effect." Accordingly, Section 230 controls this case and bars Zeran’s claim.

ARGUMENT

Standard of Review: The questions of how Section 230 operates and whether it applies to this case are both questions of law that this Court reviews de novo. See Alexander S. v. Boyd, 113 F.3d 1373, 1381 (4th Cir. 1997).

I. THE DISTRICT COURT CORRECTLY RULED THAT SECTION 230 BARS ZERAN’S SUIT BECAUSE IT SEEKS TO TREAT AOL AS THE "PUBLISHER OR SPEAKER" OF INFORMATION PROVIDED BY A THIRD PARTY.

Interactive computer services -- which enable people to communicate with one another with unprecedented speed and efficiency through the Internet and related electronic networks -- are rapidly revolutionizing how people and businesses share and receive information. "The Internet is a unique and wholly new medium of worldwide human communication." Reno v. American Civil Liberties Union, No. 96-511, 1997 WL 348012, at *4 (U.S. June 26, 1997) (quotation omitted). Unlike traditional media such as television, radio, newspapers, and books, where content typically flows from a single, centralized "publisher," information and content on interactive computer services is created and disseminated by millions of individual subscribers. One of the great challenges of this revolution is to develop legal rules to govern this new medium that recognize this fundamental distinction between traditional media and interactive services. In February 1996, Congress enacted the Communications Decency Act of 1996 ("CDA") as a response to this challenge.^/

Section 230 of the CDA, 47 U.S.C. § 230, was designed to eliminate uncertainties in the law governing whether providers of interactive computer services, such as AOL, could be liable for harms resulting from the dissemination of tortious content that other persons or entities create and transmit using such services. As we show below, Congress determined in Section 230 that providers of such services are immune from such liability. Congress made this decision because it recognized that saddling interactive computer services with liability for harm caused by third-party communications would be inconsistent with the vigorous and vibrant development of this new and important medium of communication.

Zeran’s lawsuit seeks to impose on AOL liability for allegedly tortious messages that a third party created and posted on AOL’s interactive computer service. The District Court correctly ruled that his action is barred by Section 230.

A. Section 230’s Plain Terms Bar Zeran’s Suit.

The District Court’s conclusion that Section 230 bars Zeran’s suit is compelled by the plain terms of the statute. Section 230(c)(1) states:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Section 230(d)(3) further provides that

No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

Zeran has conceded most aspects of Section 230’s operation and application to the present case. He acknowledges that Section 230 "was enacted to provide immunity from publisher liability to interactive computer services." (Zeran Br. at 7.) Likewise, he accepts the District Court’s eminently correct holding (see J.A. 80-82) that Section 230, by virtue of both the Supremacy Clause of the United States Constitution and the plain language of Section 230(d)(3), preempts and precludes any cause of action based on state law that is inconsistent with the express prohibition set out in Section 230(c)(1). (Zeran Br. 26.)

Zeran also has not contested that the threshold requirements for Section 230(c)(1) immunity are met here. Specifically, he does not -- and cannot -- challenge the District Court’s conclusion that AOL is a "provider . . . of an interactive computer service" within the meaning of Section 230(c)(1).^/ (J.A. 83.) Nor does he question the District Court’s conclusion that the bulletin board messages that are the subject of his suit were "information provided by another information content provider" within the meaning of Section 230(c)(1).^/ (J.A. 83.) As the Complaint alleges, the messages at issue here were created and placed on AOL’s service not by AOL, but by an "unidentified person." (Complaint ¶¶ 5, 10, 15; J.A. 6-8, 10.)

Zeran’s view of the scope of Section 230 differs from that of the District Court on only one issue: whether holding AOL liable for allegedly failing to remove or block defamatory messages posted on its service by a third person, as Zeran seeks to do, would "treat [AOL] as the publisher or speaker" of these messages within the meaning of Section 230(c)(1). The District Court correctly ruled that Zeran’s suit would do just this.

Zeran’s effort to impose liability on AOL for the harm these messages allegedly caused would treat AOL as the "publisher or speaker" of the messages in at least three important ways. First, it would put AOL in precisely the same legal position as the person who posted -- and thereby "published" -- the messages on AOL’s service. In cyberspace, each individual speaker is a "publisher" in his or her own right. Reno, 1997 WL 348012 at *6. Obviously, if Zeran had been able to identify the "publisher" of these messages, he could have sued that person for precisely the same relief sought here from AOL. To permit Zeran simply to substitute AOL as the defendant in a suit for this same relief would thus "treat [AOL] as the publisher or speaker" of the messages.

Second, under well-settled common law principles, liability for harm flowing from the dissemination of defamatory or otherwise tortious material may be imposed only on a party who is deemed to have "published" the material. Basic hornbook law provides that an entity may be liable for harm caused by a defamatory statement if and only if the entity "published" the statement. The essential elements of any defamation action include both "an unprivileged publication to a third party" and "fault amounting to at least negligence on the part of the publisher." Restatement (Second) of Torts § 558 (1977) (emphasis added). Similarly, other tort actions arising out of the dissemination of harmful information, such as the torts of injurious falsehood or invasion of privacy, can be brought only against defendants who are deemed to have "published" the information. See id. § 623A (tort of injurious falsehood applies only to "one who publishes a false statement harmful to the interests of another") (emphasis added); §§ 652D & 652E (invasion of privacy actions based on revelation of private facts or placing person in false light require showing that defendant gave "publicity" to allegedly harmful information). Accordingly, under basic common law concepts, holding AOL liable for dissemination of the messages at issue here would treat AOL as the "publisher or speaker" of those messages.

Third, Zeran’s suit explicitly seeks to impose on AOL a standard of care that would require AOL "to screen, block, or edit" the content of information appearing on its system and to issue retractions after being notified of an error. (Zeran Br. at 31; Complaint ¶¶ 42-45, J.A. 15-16.) These are the quintessential duties in which traditional publishers -- such as newspapers and magazines -- engage with respect to their own content and content supplied by third parties (such as letters to the editor, advertisements, etc.). Adoption of a legal standard that would require AOL to perform these functions with respect to third-party content effectively would compel AOL to act like a traditional publisher of that content, and in this sense as well would treat AOL as a "publisher" of that content.

B. The Legislative Intent of Section 230 Confirms that Congress Intended to Bar Suits Such as Zeran’s.

Section 230’s preamble and legislative history strongly support the District Court’s construction of the statute’s "publisher or speaker" prohibition. The preamble and history both demonstrate that Congress enacted Section 230 to foster robust discourse over interactive computer services by ensuring that the intermediaries of such discourse -- service providers such as AOL -- are not held liable for harm caused by third-party content.

Section 230’s preamble announces a congressional finding that "interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity" and that these services have "flourished, to the benefit of all Americans, with a minimum of government regulation." 47 U.S.C. §§ 230(a)(3)-(4) (emphasis added). The preamble also declares that it is "the policy of the United States . . . to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation." Id. §§ 230(b)(2) (emphasis added). Viewed in the context of the whole of Section 230, these declarations reflect Congress’s view that a legal regime under which interactive computer service providers could face tort liability for dissemination of content produced by others inevitably would hurt the development of an emerging communications medium that obviously holds great promise for the Nation.

At the same time, Section 230’s preamble reflects that Congress recognized the need to deter and punish truly harmful online speech and chose to do so by strengthening enforcement of federal criminal laws against the actual wrongdoers who originate such speech. The preamble declares that it is the "policy of the United States . . . to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer." Id. § 230(b)(5). Thus, Congress made the policy decision to deter tortious online speech not by punishing the intermediary, but by strengthening the enforcement of legal remedies against the culpable source of the unlawful content.

The legislative history of Section 230 further confirms Congress’s intent to immunize interactive computer services from liability for dissemination of third parties’ tortious online speech. Debate on the bill on the House floor revealed a congressional understanding that interactive service providers should not be responsible for harmful third-party content because the nature of the medium makes it impossible for them to review and edit third-party content:

There is no way that any of those entities, like Prodigy, can take the responsibility to edit out information that is going to be coming in to them from all manner of sources onto their bulletin board. We are talking about something that is far larger than our daily newspaper. We are talking about something that is going to be thousands of pages of information every day, and to have that imposition imposed on them is wrong. [Section 230] will cure that problem . . . .

141 Cong. Rec. H8471 (Aug. 4, 1995) (statement of Rep. Goodlatte). Accordingly, Section 230 was intended to provide online services "a reasonable way to . . . help them self-regulate themselves without penalty of law." Id. at H8470 (statement of Rep. Barton) (emphasis added).

Congress’s intention to immunize interactive service providers from liability for third-party content is further demonstrated by the CDA’s conference report, which states that one of the purposes of Section 230 was to overrule the only reported case in which an interactive service provider had ever been found potentially liable for tortious third-party content. In Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710, at *1, *5 (N.Y. Sup. Ct. May 24, 1995), a state trial court had concluded that Prodigy, which is another interactive service provider, could be liable for an allegedly defamatory message posted by an unidentified bulletin board user. The court decided to treat Prodigy as a publisher of the message because Prodigy had held itself out to the public as a family-oriented service and attempted to exercise editorial control over third-party content. See id. at **3-4. As the Conference Report stated:

One of the specific purposes of [Section 230] is to overrule Stratton-Oakmont v. Prodigy and any other similar decisions which have treated such providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material. The conferees believe that such decisions create serious obstacles to the important federal policy of empowering parents to determine the content of communications their children receive through interactive computer services.

H.R. Conf. Rep. No. 104-458, at 194 (1996).

Courts must, of course, construe the terms of a federal statute in a manner that both accords with the plain meaning of its terms and also advances the purposes of the statute as expressed in its enacted findings and statements of policy and legislative history. See, e.g., Crandon v. United States, 494 U.S. 152, 158 (1990) ("In determining the meaning of the statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy."). Here, the only way to meet these twin objectives is to conclude that Section 230’s "publisher or speaker" prohibition operates to immunize online services from tort liability arising out of harmful content originating with third parties.

The rule of law advocated by Zeran -- that an interactive computer service should be liable for injury caused by a series of false third-party messages once it is somehow "on notice" that one of its millions of users has posted such a message (Zeran Br. at 21, 25-26, 32) -- would undermine the purposes of Section 230. Such a rule would run directly counter to the express statutory policy that such services be "unfettered by Federal or State regulation." 47 U.S.C. § 230(b)(2). Moreover, as the District Court accurately discerned (J.A. 86-90), it would also have the perverse effect of undermining the statute’s clear objective to remove disincentives for interactive computer services voluntarily to engage in "Good Samaritan" activities designed to "restrict access to or availability of" material that they consider to be "objectionable." 47 U.S.C. § 230(c)(2)(A).^/

For example, under the legal regime advocated by Zeran, an online service that might otherwise voluntarily provide an "800" number telephone line for receipt of complaints concerning online content -- as AOL is alleged to have done in the present case (Complaint ¶¶ 7, 12; J.A. 7-9) -- would be discouraged from doing so because complaints received on that line might create a basis for claiming -- as Zeran does here -- that the service had been put on notice of the presence of harmful material on its system. In much the same way, Zeran’s proposed regime would also discourage online services from making voluntary "Good Samaritan" efforts to monitor their systems for the purpose of detecting content they find to be inappropriate, because the very act of monitoring might create a basis for claiming that the service "knew or should have known" about any allegedly harmful material that was not immediately removed. Such results would frustrate Congress’s intent.

C. Zeran Cannot Circumvent the Bar of Section 230 by Characterizing His Suit as a Claim of "Negligence" or "Negligent Distribution."

If Zeran had cast his suit against AOL as a defamation claim, as he did with his parallel (and still ongoing) lawsuit against radio station KRXO and as would be most consistent with his own repeated assertions that the messages at issue were "defamatory," it obviously would have fallen within the proscription of Section 230.^/ As set out above, the basic elements of any claim for defamation include that the defendant be the "publisher" of the allegedly defamatory material and that he have "publishe[d]" it with a level of fault amounting to (at least) negligence. (See supra at 12.) Therefore, a fortiori, if Zeran had sued AOL for defamation, his claim would have been barred by Section 230’s "publisher or speaker" prohibition. Similarly, had Zeran tried to cast his suit as a claim for "injurious falsehood" or "invasion of privacy," Section 230 would have barred the suit because those torts also, by definition, treat the defendant as the "publisher" of the allegedly harmful material. (See supra at 12-13.)

Zeran does not argue that a defamation (or injurious falsehood or invasion of privacy) suit against AOL could escape the bar of Section 230. Instead, he contends that his suit does not really rest on a theory of defamation liability, but rather on a supposedly distinct theory that AOL was "negligent" in permitting a third party’s allegedly false messages to be available on its system after it was notified of the first message and told it was a hoax. (Complaint ¶¶ 42-45, J.A. 15-16; Zeran Br. at 26.) Zeran contends that holding AOL liable on such a theory avoids the bar of Section 230 by treating AOL as a "distributor" -- but not a "publisher" -- of the allegedly false messages. (Zeran Br. at 21-22, 24-28.) As the District Court properly held, this attempt by Zeran to semanticize a way around Section 230’s prohibition is totally without merit.

First, Section 230 would be rendered meaningless if it could be avoided by the sleight of hand of recasting a claim for "negligently publishing" a third party’s false message (i.e., a defamation claim) as a claim for negligently allowing the offending messages to appear on its system. As a practical matter, the claims are indistinguishable. If Section 230 were construed so as to permit Zeran’s "negligence" claim to survive, then virtually any claim that is barred by Section 230 could be restated in the same fashion. Congress obviously did not intend for the protections it created in Section 230 to be so easily eviscerated.

In analogous contexts, courts have routinely rejected attempts by creative plaintiffs to evade the many protections that the law affords to defamation defendants by repackaging defamation claims in the guise of other torts, including invasion of privacy. See Hustler Magazine v. Falwell, 485 U.S. 46, 56-57 (1988) (plaintiff cannot circumvent First Amendment defenses to defamation action by pleading a claim for intentional infliction of emotional distress); Time, Inc. v. Hill, 385 U.S. 374, 390 (1967) (applying First Amendment defamation standards to invasion of privacy); Moldea v. New York Times Co., 22 F.3d 310, 319 (D.C. Cir.), cert. denied, 513 U.S. 875 (1994) (plaintiff may not "avoid the strictures of the burdens of proof associated with defamation by resorting" to invasion of privacy (quotations omitted)). "Without such a rule, virtually any defective defamation claim . . . could be revived by pleading it as one for [another tort]." Dworkin v. Hustler Magazine, Inc., 668 F. Supp. 1408, 1420 (C.D. Cal. 1987), aff’d, 867 F.2d 1188, cert. denied, 493 U.S. 812 (1989). For the same reasons that courts have traditionally blocked plaintiffs from evading common law and First Amendment constraints on defamation claims through tricks of pleading, Section 230 must be construed to bar Zeran’s "negligent distribution" claim.

Second, no matter how Zeran labels his claim, its essence is that AOL (a) failed to act with sufficient speed in removing certain defamatory messages that it knew were exhibited on its system and/or (b) failed to screen for and block subsequent messages that were similar to the original message.^/ The clear import and effect of both of these components of Zeran’s claim is to treat AOL as the "publisher" of the allegedly harmful messages. The "failure to remove" component of Zeran’s claim falls squarely within the classic common law definition of "publication." The Restatement (Second) of Torts, in defining "[w]hat constitutes publication," characterizes a defendant’s "fail[ure] to remove" a statement from property he controls as constituting "publication" of the statement by the defendant:

(1) Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed.

(2) One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on land or chattels in his possession or under his control is subject to liability for its continued publication.

Restatement § 577 (emphasis added). Thus, under traditional common law principles, holding AOL liable for failing to remove from its property (i.e., its interactive system) messages that it knew to be false and injurious would treat AOL as the "publisher" of those messages.^/

The "failure to screen" component of Zeran’s claim also fundamentally seeks to treat AOL as a "publisher" of third-party content. As already noted, "screening" in this medium is just another term for editing, and editing is a quintessential function of a "publisher." (See supra at 21.) Moreover, in Stratton-Oakmont, a case that Congress explicitly overruled when it enacted Section 230, the very fact that Prodigy had a practice of advance screening of bulletin board messages led the court to treat Prodigy as a "publisher" and hold that it could be liable for defamation if it performed such screening negligently. By enacting a provision barring treatment of interactive computer services as "publishers or speakers" of third-party content and overruling Stratton-Oakmont, Congress obviously precluded liability for "negligently failing to screen."

Third, the conclusion that Section 230 encompasses -- and thus bars -- Plaintiff’s "negligence" claim is underscored by the very case on which Zeran most heavily relies, Cubby, Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991). Zeran identifies this supposedly "seminal" case as the singular source of the duties to remove and to screen that he alleges AOL negligently failed to fulfill.^/ (See Complaint ¶ 43, J.A. 15; Zeran Br. at 6-7, 21, 24, 28.) He erroneously argues that Cubby, which was decided more than four years before enactment of Section 230 by a district court applying New York common law, ruled that an interactive computer service may be liable for harm caused by defamatory information that a third party transmits over the service without being treated as the "publisher or speaker" of the information. (Id. at 21, 28.) He builds this argument upon the demonstrably false premise that Cubby recognized a special cause of action -- wholly distinct from defamation or other causes of action applicable to those who "publish" false or injurious information -- for "negligent distribution" of such information. (Id.) Zeran’s interpretation of Cubby is totally wrong.

Cubby did not even discuss, much less recognize, any cause of action that would subject an interactive computer service to liability for harmful third-party information without treating it as the "publisher or speaker" of that information. The plaintiff in Cubby sought to hold CompuServe, another interactive service provider, liable under three tort theories, each of which would have treated CompuServe as the publisher or speaker of allegedly false information posted by a third party. Cubby’s primary claim was for defamation, a tort that may be committed only by the "publisher" of false information. (See supra at 12.) In discussing this claim, the Cubby court framed the issue as being whether there was a factual basis for treating CompuServe as if it had "originally published" a third-party’s defamatory statements. 776 F. Supp. at 139 (citation omitted, emphasis added). Similarly, in considering Cubby’s two other tort claims -- business disparagement and unfair competition -- the court said that no liability could be imposed absent a showing that CompuServe had made a "knowing publication of false matter" or that CompuServe had "intentionally uttered" an injurious falsehood. Id. at 141, 142 (emphasis added). Thus, Cubby simply cannot be interpreted as having created a new cause of action for "negligent distribution" that would impose liability on an interactive computer service without treating it as a "publisher or speaker."

Instead, drawing on precedents protecting distributors of information such as news vendors, book stores and libraries from tort liability, Cubby held that interactive computer services enjoy special constitutional protection that requires an exceptional threshold showing before they can be treated as the publisher or speaker of such information. Specifically, Cubby held that the First Amendment provides a "deeply rooted" protection for distributors such as interactive service providers and that, as a result, such a provider may be held liable as the publisher or speaker of defamatory third-party content only if it "knew or should have known" of the defamation. 776 F. Supp. at 139-41. Zeran’s attempt to transform this special protection into a new-found tort action of "negligent distribution" in which liability may be imposed on an interactive computer service without treating it as a "publisher or speaker" is preposterous.

Far from supporting Zeran’s thesis, Cubby is representative of a more general common law rule that a mere distributor of third-party information may not be held liable for injury caused by dissemination of that information absent facts establishing that it was a publisher of the information. See, e.g., Tacket v. General Motors Corp., 836 F.2d 1042, 1047 (7th Cir. 1987) (owner of property on which someone had posted defamatory sign not liable absent a showing that the owner "‘intentionally and unreasonably fail[ed] to remove’ [the] sign and thereby published its contents") (emphasis added); Anderson v. New York Telephone Co., 320 N.E.2d 647 (N.Y. Ct. App. 1974) (adopting lower court dissenting opinion published at 345 N.Y.S.2d 740, 751 (1973)) (telephone company could not be liable for tape-recorded defamatory messages repeatedly transmitted over its network "unless it is held that . . . it ‘published’" the messages); Hellar v. Bianco, 244 P.2d 757, 759 (Cal. Dist. Ct. App. 1952) (where unknown person wrote defamatory statements on a men’s room wall, jury must decide whether "publication by [bar owner] could be sufficiently inferred" because bartender failed to remove the graffiti for a short time after learning of its existence).

Ultimately, Zeran’s argument boils down to the proposition that "[d]istributor liability is different from publisher liability." (Zeran Br. at 28.) But, as the foregoing analysis demonstrates, the District Court got it just right when it ruled that "distributor liability, or more precisely, liability for knowingly or negligently distributing defamatory material, is merely a species or type of liability for publishing defamatory material." (J.A. 84.) Even the authorities Zeran cites support this view. Thus, Section 581 of the Restatement (Second) of Torts, on which Zeran heavily relies in arguing that "distributor liability" is not a subset of "publisher liability" (Zeran Br. at 24), is itself an explication of the fault requirement for the tort of defamation -- a tort that by definition can apply only to a defendant who is the "publisher" of the allegedly false material. Zeran’s semantic hair-splitting reaches its nadir when he argues that his suit seeks to treat AOL not as a "publisher" but as a "secondary publisher." (Zeran Br. at 29 (citing Prosser and Keeton on the Law of Torts, § 113, at 803 (5th ed. 1984)).) This is nonsense: "secondary publishers" are obviously a type of "publisher," and a suit that treats AOL as a "secondary publisher" of third-party content necessarily treats it as a "publisher" of that content.^/

Finally, Zeran’s reliance on a canon of statutory construction that "favor[s] the retention of long-established and familiar [common law] principles, except when a statutory purpose to the contrary is evident" is entirely misplaced. (Zeran Br. at 30 (quoting United States v. Texas, 507 U.S. 529, 534 (1993)).) In the first place, even assuming a State’s common law would permit a lawsuit (such as Zeran’s) that would treat an interactive computer service as the "publisher" of third-party content, Congress has unambiguously abrogated that common law by prohibiting any cause of action "under any State . . . law that is inconsistent with this section." 47 U.S.C. § 230(d)(3); see Texas, 507 U.S. at 534. Reliance on this canon here to overcome AOL’s claim of immunity therefore would impermissibly "defeat an obvious legislative purpose or lessen the scope plainly intended to be given to the measure." Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952); Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991) (canon does not govern "when a statutory purpose to the contrary is evident").

In any event, this canon of construction is inapplicable because, even if a State’s common law would permit a suit in these circumstances against an interactive computer service, no "long-established and familiar" common law rule to this effect could be said to exist. Texas, 507 U.S. at 534; Isbrandtsen, 343 U.S. at 783. Interactive computer services are themselves part of a "wholly new medium," Reno, 1997 WL 348012, at *4 (quotation omitted), and the legal rules applicable to them before Section 230 was enacted were largely unsettled. At the time that Section 230 was enacted, no decisions by any court in any of the jurisdictions whose law might be applicable here (Virginia, Washington, or Oklahoma) had even considered the question of an online service’s liability for injurious third-party content.^/ Indeed, Zeran himself has identified only Cubby -- a single 1991 decision by a district court in New York that was never subject to appellate review and has been followed by no other state -- as supporting his cause of action, and, as we have already shown, even Cubby does not support his claim. Accordingly, Section 230 could not have abrogated a "long-established and familiar" common law principle.

II. SECTION 230 REQUIRES DISMISSAL OF THIS CASE EVEN THOUGH THE EVENTS ALLEGED IN THE COMPLAINT PRE-DATE ITS ENACTMENT.

As of the date of its enactment, February 8, 1996, Section 230 expressly provided that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." This clear language led the District Court to hold that Section 230 applies to this case, which was filed two months after the statute’s enactment. Zeran tries to evade Congress’s clear command by erroneously arguing that Section 230 cannot apply in a case involving events that predate its enactment. (Zeran Br. at 8-20.)

As the Supreme Court has explained, "[a] statute does not operate ‘retrospectively’ merely because it is applied in a case arising from conduct antedating the statute’s enactment or upsets expectations based in prior law." Landgraf v. USI Film Prods., 511 U.S. 244, 269 (1994) (citation omitted). In fact, applying a statute to antecedent events "often serve[s] entirely benign and legitimate purposes" such as giving "comprehensive effect to a new law Congress considers salutary." Id. at 267-68. Accordingly, "[t]he conclusion that a particular rule operates ‘retroactively’ comes at the end of a process of judgment concerning the nature and extent of the change in the law and the degree of connection between the operation of the new rule and a relevant past event." Id. at 280

The Court in Landgraf specified a two-part framework for analyzing the temporal reach of a statute. The first step is to "ascertain whether Congress expressly prescribed the reach of the statute." Alexander S. v. Boyd, 113 F.3d 1373, 1387 (4th Cir. 1997). If so, the court is "bound by Congress’s directive." Id. If not, a second inquiry must be made: "Absent an express directive from Congress, we must apply a newly enacted statute to pending cases unless doing so would give the statute ‘retroactive effect.’" Alexander, 113 F.3d at 1387; Landgraf, 511 U.S. at 280 ("When . . . the statute contains no such express command, the court must determine whether the new statute would have retroactive effect."). Under Landgraf, "‘retroactive effect’ . . . does not describe all applications of a statute to preexisting causes of action or pending proceedings." Hunter v. United States, 101 F.3d 1565, 1570 (11th Cir. 1996), cert. denied, 117 S. Ct. 1695 (1997). Rather, "[t]he definition of ‘retroactive effect’ in this context is more narrow than that," and a court must engage in a "process of judgment" to determine whether application of a statute would have a "retroactive effect." Id.

In this case, as the District Court correctly held, Congress expressly prescribed that Section 230 govern any suit filed after its enactment. Moreover, even if this Court were to conclude that Section 230 does not disclose Congress’s intent as to its temporal reach, Section 230 still governs Zeran’s suit because its application here does not have a "retroactive effect" within the meaning of Landgraf.

A. The District Court Correctly Ruled That Congress Expressly Prescribed that Section 230 Applies in Cases Involving Pre-Enactment Events.

Congress expressly provided that Section 230 govern any suit brought after its enactment, including those, such as the present case, in which the conduct at issue occurred before its enactment. Section 230 provides that "[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section." 47 U.S.C. § 230(d)(3). Congress could not have expressed its intent more clearly: from the date of Section 230’s enactment (February 8, 1996), no action may be filed and no liability may be imposed under any state or local law inconsistent with Section 230.^/ See Wright v. Morris, 111 F.3d 414, 418 (6th Cir. 1997) (statute that provides "[n]o action shall be brought with respect to prison conditions" until a prisoner has exhausted administrative remedies "expressly governs the bringing of new actions"); Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025 (7th Cir. 1996) (statute providing that "[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action" if he has brought three previous frivolous actions or appeals "governs bringing new actions"). Given that Zeran’s suit was filed after passage of the CDA, a straightforward interpretation of this provision requires the application of Section 230 to this case.^/

Indeed, given that Zeran filed suit after Section 230 was enacted, applying the statute to this case is really prospective in nature. Because Section 230 specifically prohibits the bringing of a cause of action and the imposition of liability, "the statute [would be] applied to conduct that occur[red] after the statute’s enactment -- plaintiff’s filing of the complaint -- not the defendant’s allegedly unlawful acts." Vernon v. Cassadaga Valley Cent. Sch. Dist., 49 F.3d 886, 889-90 (2d Cir. 1995); St. Louis v. Texas Worker’s Compensation Comm’n, 65 F.3d 43, 46 (5th Cir. 1995) (statute applied prospectively because it was "applied to conduct that occurred after the statute’s enactment-- the plaintiff’s filing of the complaint -- not to the allegedly discriminatory acts of the defendant").

Furthermore, the language of Section 230(d)(3) must be read to govern even suits that were pending when Section 230 was enacted, so, a fortiori, it applies to cases (like Zeran’s) filed after the statute’s enactment. If the section were interpreted to apply only to suits involving events occurring after its enactment as Zeran asserts, the clause "no liability may be imposed" would be superfluous: the statutory prohibition against bringing any cause of action would already ban all future suits -- and therefore the imposition of liability -- under state laws inconsistent with Section 230. But a court must be "deep[ly] reluctan[t] to interpret a statutory provision so as to render superfluous other provisions in the same enactment." Pennsylvania Dept. of Pub. Welfare v. Davenport, 495 U.S. 552, 562 (1990). The clause "no liability may be imposed" is most naturally given operative effect by interpreting it to prohibit damages under inconsistent state laws in suits already pending when the statute was enacted -- suits that would not be covered by the statute’s prohibition on bringing new causes of action. See Wright, 111 F.3d at 418 (statute that provides "[n]o action shall be brought with respect to prison conditions" until a prisoner has exhausted administrative remedies governs only newly-filed cases, not "the disposition of pending cases"); Abdul-Wadood, 91 F.3d at 1025 (same analysis of statute providing that "[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action"). Clearly, because Section 230 applies to suits that were pending when it was enacted (suits that necessarily would involve pre-enactment events), it must also apply to all cases, including Zeran’s, that are filed after its enactment as well.^/

Zeran’s own explanation of the interaction between the "no cause of action may be brought" and "no liability may be imposed" provisions is incoherent. He initially posits that the two phrases "refer[] to two different events in the stages of a trial" (without offering any reason why Congress would need to refer to two different stages in a trial). (Zeran Br. at 13.) Two sentences later, he inexplicably asserts that the two phrases "both relate to theories of recovery, not to stages of a trial." (Id.) Zeran finally complains that interpreting the phrase "no liability may be imposed" as foreclosing pending cases would render redundant the phrase "no cause of action may be brought." (Id. at 14.) In fact, however, Zeran’s interpretation would create the redundancy. His only explanation for why Congress included both clauses is that "they are used merely to emphasize that no state theory of recovery may be ‘inconsistent’ with the CDA." (Id. at 13.) But the theory that Congress included a similar provision twice for "emphasis" could be used to explain away all statutory redundancies and would make meaningless the canon against construing statutory language as redundant.^/

B. Application of Section 230 to Bar Zeran’s Suit Does Not Have "Retroactive Effect."

Even if this Court were to conclude (contrary to the foregoing analysis) that Congress did not expressly provide that Section 230 applies to cases involving events pre-dating its enactment, the statute still would control this case because its application to Zeran’s claim does not have a "retroactive effect."^/ In its analysis of retroactivity, "[t]he Landgraf Court sought to harmonize two potentially conflicting principles." Martin v. Bissonette, No. 96-1856, 1997 WL 280602, at *6 (1st Cir. May 29, 1997). As the Supreme Court explained, "[a]lthough we have long embraced a presumption against statutory retroactivity, for just as long we have recognized that, in many situations, a court should ‘apply the law in effect at the time it renders its decision,’ even though that law was enacted after the events that gave rise to the suit." Landgraf, 511 U.S. at 273 (citation omitted). The Court observed that the "familiar considerations of fair notice, reasonable reliance, and settled expectations offer sound guidance" in attempting to resolve any tension between these principles. Id. at 270. After surveying how past cases had applied these considerations when analyzing whether a statute should be applied to antecedent events, the Supreme Court concluded that a court should apply the law in effect at the time of decision -- even in cases involving events pre-dating the enactment of a statute -- if doing so does not have "retroactive effect." Id. at 277, 280.

A law has retroactive effect only when its application to pre-enactment events would be unfair because a party has relied upon the pre-existing law in planning his or her conduct. As the Landgraf Court explained, "[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly." Landgraf, 511 U.S. at 265. Accordingly, "[c]ourts refrain from applying a statute retroactively to avoid the unfairness that results from imposing new burdens on people’s conduct after they have engaged in that conduct." Chow v. INS, 113 F.3d 659, 665 (7th Cir. 1997). In other words, the presumption against retroactivity is designed to avoid the unfairness of changing the legal rules when a person has engaged in conduct with an expectation of the probable legal consequences.^/

Zeran, however, can point to no action in connection with the events described in the Complaint that he planned or took in reliance on existing law. Clearly, his alleged actions in responding to the messages on AOL’s system by complaining to AOL were not premised in any way on existing legal rules. Indeed, he cannot even claim that he filed suit in reliance on pre-Section 230 law because the statute was enacted before he brought suit. The only "reliance interest" Zeran claims -- or can claim -- is that he "relied upon [a] substantive right [that he believes Cubby created] to vindicate the wrongs done to him and the injuries suffered by him." (Zeran Br. at 20; id. at 16 (applying Section 230 "would abolish the right of action relied upon by Zeran in this case").) Thus, Zeran asserts not that he relied in any way on pre-Section 230 law in planning his conduct, but only that he has relied on his understanding of that law as the basis for this suit. The unfairness to which Zeran points is not any change in the consequences of his own past actions, but an alleged unfairness of not having a claim against AOL.

But that is not the type of "reliance" or "unfairness" the presumption against retroactivity protects. The issue is not whether it is fair or unfair for Zeran to have no claim against AOL. After all, if Section 230 had not been enacted but an appellate court on review of Cubby had made clear that there is no common law action for "negligent distribution," Zeran would still be in the same "unfair" situation he faces today, but the law is clear that rules announced in a judicial decision "should normally be applied to a case pending when the . . . decision [comes] down." Landgraf, 511 U.S. at 278 n. 32. Moreover, courts often apply statutes to suits involving pre-enactment events even though the effect is to eliminate the claim upon which the plaintiff was relying to seek redress for alleged wrongs. As Justice Scalia observed in Landgraf, the general rule is that a statute eliminating jurisdiction is applied to cases involving pre-enactment events, even though doing so "can deny a litigant a forum for his claim entirely." Landgraf, 511 U.S. at 292-93 (Scalia, J., concurring). Similarly, courts routinely apply changes in statutes of limitations retroactively even when the result is to eliminate the plaintiff’s claim. See, e.g., St. Louis v. Texas Worker’s Compensation Comm’n, 65 F.3d 43, 46 (5th Cir. 1995), cert. denied, 116 S. Ct. 2563 (1996); Vernon, 49 F.3d at 889-90.

As courts have explained, retroactivity is implicated not by a statute’s effect on "the secondary conduct of the plaintiffs, the filing of their suit," but only by an effect on the "primary conduct" of the parties that is at issue in the suit.^/ Vernon, 49 F.3d at 890; Alexander S., 113 F.3d at 1387 ("The application of a new statute that affects only secondary, rather than primary, conduct does not give rise to concerns about retroactivity."). Accordingly, Zeran’s secondary conduct concerning litigation decisions does not reflect any cognizable reliance interest. The presumption against retroactivity protects only against the unfairness that results when a person has planned his primary conduct in reliance on existing law but then finds the legal consequences of his or her conduct altered because the law has changed. See Chow, 113 F.3d at 665 ("Unfairness results because people rely on the existing legal provisions in planning and conducting their affairs."). Zeran can point to no such reliance or consequent unfairness. Thus, not surprisingly, he cannot meet the tests courts have set out for determining whether a statute has retroactive effect.

As this Court has recognized and Zeran acknowledges (Zeran Br. at 15), under Landgraf, "application of a new statute to a pending case has a retroactive effect only when ‘it would impair rights a party possessed when he acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions already completed.’"^/ Alexander S., 113 F.3d at 1387 (quoting Landgraf, 511 U.S. at 280). Clearly, Section 230 does not meet either the second or third prongs of this test: it neither "increase[s] [any] party’s liability" nor "impose[s] new duties" on anyone. Thus, Zeran could escape applicability of Section 230 only under the first prong, which turns on whether application of the statute would "impair" his pre-existing "rights . . . when he acted."

Zeran claims he had a "right protected from retroactive impairment" in his unfiled tort claim against AOL. (Zeran Br. at 16.) But, as discussed above, Zeran can point to no action (other than preparing to file this suit) he took in reliance on the existence of such a claim. Applying Section 230 in this case could not "impair rights [Zeran] possessed when he acted," because there is no relevant conduct that was based on any such rights. Moreover, Zeran simply could not reasonably rely on, or have settled expectations about, the existence of a supposed common law "rule" that he purports to draw from dicta in a single district court decision (Cubby) that applied the law of a jurisdiction that does not even govern this case. Here, Congress did not suddenly abrogate a well-established rule of common law. (See supra at 26.) Instead, it established certain protections for the emerging online services industry so that its development would not be hindered by the legal uncertainty created by a few isolated lower court rulings.

In any event, even if Zeran could point to a well-established common law rule, the "cases have clearly established that a person has . . . no vested interest[] in any rule of the common law." Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 88 n. 32 (1978) (internal quotations omitted); New York Central R.R. Co. v. White, 243 U.S. 188, 198 (1917) ( "No person has a vested interest in any rule of law, entitling him to insist that it shall remain unchanged for his benefit."). "Because rights in tort do not vest until there is a final, unreviewable judgment, Congress abridge[s] no vested rights of the plaintiff by . . . retroactively abolishing [plaintiff’s] cause of action in tort." Hammond v. United States, 786 F.2d 8, 12 (1st Cir. 1986); see also In re TMI, 89 F.3d 1106, 1113 (3d Cir. 1996), cert. denied, 117 S. Ct. 739 (1997) (statute that eliminates pending tort claim does not impair a vested right); Hyundai Merchant Marine Co. v. United States, 888 F. Supp. 543, 551 (S.D.N.Y. 1995) (statute that eliminates tort claim applied to pre-enactment events because such a claim is not a vested right until reduced to final judgment), aff’d, 75 F.3d 134 (2d Cir.), cert. denied, 117 S. Ct. 51 (1996); ABF Capital Mgmt. v. Askin Capital Mgmt., L.P., 957 F. Supp. 1308, 1320-21 (S.D.N.Y. 1997) (statute that prohibited reliance on securities fraud as basis for RICO claim could be applied to "cases where the allegedly fraudulent conduct took place prior to enactment, but the suit is brought after enactment" without retroactive effect).

Zeran relies primarily on Maitland v. University of Minnesota, 43 F.3d 357 (8th Cir. 1994), for his assertion that he had a vested right in his unfiled tort claim.^/ (Zeran Br. at 17.) Maitland, however, only highlights the absence of any relevant reliance by Zeran. Maitland, a plaintiff with a prospective cause of action for employment discrimination, participated in a limited way in consent decree hearings involving other discrimination claims against his employer. When he did so, "the law did not even hint that [his involvement in the consent decree proceeding] would jeopardize his cause of action." Id. at 362. Congress subsequently passed a statute providing that anyone with an opportunity to present objections to a consent order resolving a claim of employment discrimination could not challenge any action taken within the scope of that order -- a statute that, if applied to Maitland, would bar his cause of action. Id. at 361. The court found that the statute should not extinguish Maitland’s claim because he had "reasonably relied" on the preexisting law and would have acted differently had he known the law would change. Id. at 363. Clearly, in sharp contrast to Maitland, Zeran can point to no actions predating the enactment of Section 230 that he took in reliance on pre-existing law and that he would have changed had he known Section 230 would be enacted.^/

Zeran appears to suggest that whenever a statute changes a "substantive right," it has a prohibited retroactive effect. (Zeran Br. at 15-16.) However, "merely characterizing a statute as procedural or substantive is not dispositive in determining whether a newly enacted statute should apply to pending actions." Chow, 113 F.3d at 665 (internal quotation omitted). Zeran erroneously relies on language in Landgraf stating that certain prior cases did not "displace the traditional presumption against applying statutes affecting substantive rights, liabilities, or duties to conduct arising before their enactment." Landgraf, 511 U.S. at 278. But, as the Court makes clear, "the traditional presumption" to which it refers is that a statute does not govern pre-enactment events "[i]f the statute would operate retroactively," that is, if it would have retroactive effect. Id. at 280 (emphasis added). Thus, to say that courts apply "the traditional presumption" to statutes affecting substantive rights begs the key question -- whether the statute has a "retroactive effect" and therefore cannot be applied to pre-enactment events.

Not surprisingly, then, Zeran’s sweeping claim that since Landgraf, "the courts have uniformly held that federal statutes involving the change of substantive rights have not been given retroactive application" (Zeran Br. at 19) is simply wrong. See, e.g., United States v. Olin Corp., 107 F.3d 1506, 1512-14 (11th Cir. 1997) (applying substantive provisions of CERCLA under Landgraf framework to case involving pre-enactment events); Deck v. Peter Romein’s Sons, Inc., 109 F.3d 383, 386-90 (7th Cir. 1997) (applying statute eliminating private right of action to case involving pre-enactment events); Kolster v. INS, 101 F.3d 785, 788-90 (1st Cir. 1996) (statutory preclusion of judicial review could be applied under Landgraf in case involving pre-enactment events); Centigram Communications Corp. v. Lehman, 862 F. Supp. 113, 118-19 (E.D. Va. 1994) (applying Landgraf to conclude that a statute concerning the revival of expired patents should apply in a case involving events pre-dating its enactment), appeal dismissed per agmt. of the parties, 47 F.3d 1180 (Fed. Cir. 1995). Nor are any of the cases in Zeran’s laundry list of cites (Zeran Br. at 19-20) relevant to the present situation.^/

In the absence of a retroactive effect, "a court should ‘apply the law in effect at the time it renders its decision.’" Landgraf, 511 U.S. at 273 (quoting Bradley v. Richmond School Bd., 416 U.S. 696, 711 (1974)). In this case, that law includes Section 230’s grant of immunity to interactive service providers such as AOL from tort liability for third-party content. Accordingly, Zeran has failed to state a claim upon which relief can be granted and his Complaint must be dismissed.

CONCLUSION

For the foregoing reasons, the District Court’s decision granting AOL judgment on the pleadings and dismissing Zeran’s suit should be affirmed.

REQUEST FOR ORAL ARGUMENT

AOL hereby requests oral argument in this case.

Respectfully submitted,

Randall J. Boe
America Online, Inc.
22000 AOL Way
Dulles, Va 20166-9323
(703) 265-1428

Patrick J. Carome
John Payton
Samir Jain
WILMER, CUTLER & PICKERING
2445 M Street, N.W.
Washington, D.C. 20037
(202) 663-6000

Attorneys for Appellee America Online, Inc.

July 7, 1997

CERTIFICATE OF SERVICE

I hereby certify that I have this 7th day of July 1997 caused true and correct copies of the foregoing Brief of Appellee to be served on the persons listed below by first-class mail, postage prepaid:

Leo Kayser, III
Kayser & Redfern, LLP
25 West 39th St.
New York, NY 10018

James A. Ikard
211 N. Robinson
Suite 600
Oklahoma City, Ok 73102

John S. Edwards
725 Crestar Plaza
10 E. Franklin Rd.
P.O. Box 1179
Roanoke, Va 24006-1179