Defamation Liability for On-Line Services: The Sky Is Not Falling

George Washington Law Review

Volumn 65, Issue 6, 1997, Pages 1071-1099

  Luftman, Douglas B ^a  

^a NONE

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EID: 0031518756     PISSN: 00168076     EISSN: None     Source Type: Journal    
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References (231)

1. 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995).
2. "Defamation encompasses libel (written or printed statements) and slander (oral statements)." Jessica R. Friedman, A Lawyer's Ramble Down the Information Superhighway: Defamation, 64 FORDHAM L. REV. 794, 794 n.541 (1995) (citing 1 SLADE R. METCALF & LEONARD M. NIEHOFF, RIGHTS AND RESPONSIBILITIES OF PUBLISHERS, BROADCASTERS AND REPORTERS § 1.01, at 1-4 (1982 & Supp. 1994)).
3. See Stratton, 1995 WL 323710, at *3; infra Part IV.
4. Richard P. Hermann II, Comment, Who Is Liable for On-Line Libel?, 8 ST. THOMAS L. REV. 423, 434 (1996).
5. See id. at 424. Referring to this case as "precedent-setting" overstates the case's legal influence. See Holly Rosenkrantz, Woman Sues AOL over False Sexual Biography, FAIRFIELD COUNTY BUS. J., Aug. 5, 1996, at 1, 16 ("[Stratton Oakmont v. Prodigy] is not viewed as significant precedent by Cyberspace law expert Mike Godwin, an attorney with the not-for-profit Electronic Frontier Foundation."). Stratton is an unpublished partial summary judgment decision that was never fully adjudicated. See Stratton, 1995 WL 323710, at *1. Even if not truly precedential, commentators' concern is over the fact that Stratton is a case that future courts may rely upon to assist them in deciding their cases of first impression.
6. Interactive Group Intervenes in Prodigy Libel Case, NEWSBYTES NEWS NETWORK, Sept. 1, 1995, available in 1995 WL 9986718 (quoting Interactive Services Association Executive Director Robert Smith); see Dan Blake, Prodigy Case Tests Laws On-Line: The Company Screens Postings That Hurt It in a Libel Case, PHILADELPHIA INQUIRER, May 27, 1995, at D1; James Coates, Judge Says Prodigy Subject to Libel Claims: 1st Amendment Issue on On-Line, CHI. TRIB., May 27, 1995, § 2 (Business), at 1; Elizabeth Corcoran, $200 Million Libel Suit Against Prodigy Dropped: On-Line Industry Had Worried About Case, WASH. POST, Oct. 25, 1995, at F2; On-Line Service Is Subject to Libel Regulations, Judge Rules, L.A. TIMES, May 26, 1995, at D2; Aaron Zitner, New York Judge Allows Ground-Breaking Libel Suit Against Prodigy, BOSTON GLOBE, May 26, 1995, (Economy), at 67.
7. Interactive Group Intervenes in Prodigy Libel Case, NEWSBYTES NEWS NETWORK, Sept. 1, 1995, available in 1995 WL 9986718 (quoting Interactive Services Association Executive Director Robert Smith); see Dan Blake, Prodigy Case Tests Laws On-Line: The Company Screens Postings That Hurt It in a Libel Case, PHILADELPHIA INQUIRER, May 27, 1995, at D1; James Coates, Judge Says Prodigy Subject to Libel Claims: 1st Amendment Issue on On-Line, CHI. TRIB., May 27, 1995, § 2 (Business), at 1; Elizabeth Corcoran, $200 Million Libel Suit Against Prodigy Dropped: On-Line Industry Had Worried About Case, WASH. POST, Oct. 25, 1995, at F2; On-Line Service Is Subject to Libel Regulations, Judge Rules, L.A. TIMES, May 26, 1995, at D2; Aaron Zitner, New York Judge Allows Ground-Breaking Libel Suit Against Prodigy, BOSTON GLOBE, May 26, 1995, (Economy), at 67.
8. Interactive Group Intervenes in Prodigy Libel Case, NEWSBYTES NEWS NETWORK, Sept. 1, 1995, available in 1995 WL 9986718 (quoting Interactive Services Association Executive Director Robert Smith); see Dan Blake, Prodigy Case Tests Laws On-Line: The Company Screens Postings That Hurt It in a Libel Case, PHILADELPHIA INQUIRER, May 27, 1995, at D1; James Coates, Judge Says Prodigy Subject to Libel Claims: 1st Amendment Issue on On-Line, CHI. TRIB., May 27, 1995, § 2 (Business), at 1; Elizabeth Corcoran, $200 Million Libel Suit Against Prodigy Dropped: On-Line Industry Had Worried About Case, WASH. POST, Oct. 25, 1995, at F2; On-Line Service Is Subject to Libel Regulations, Judge Rules, L.A. TIMES, May 26, 1995, at D2; Aaron Zitner, New York Judge Allows Ground-Breaking Libel Suit Against Prodigy, BOSTON GLOBE, May 26, 1995, (Economy), at 67.
9. Interactive Group Intervenes in Prodigy Libel Case, NEWSBYTES NEWS NETWORK, Sept. 1, 1995, available in 1995 WL 9986718 (quoting Interactive Services Association Executive Director Robert Smith); see Dan Blake, Prodigy Case Tests Laws On-Line: The Company Screens Postings That Hurt It in a Libel Case, PHILADELPHIA INQUIRER, May 27, 1995, at D1; James Coates, Judge Says Prodigy Subject to Libel Claims: 1st Amendment Issue on On-Line, CHI. TRIB., May 27, 1995, § 2 (Business), at 1; Elizabeth Corcoran, $200 Million Libel Suit Against Prodigy Dropped: On-Line Industry Had Worried About Case, WASH. POST, Oct. 25, 1995, at F2; On-Line Service Is Subject to Libel Regulations, Judge Rules, L.A. TIMES, May 26, 1995, at D2; Aaron Zitner, New York Judge Allows Ground-Breaking Libel Suit Against Prodigy, BOSTON GLOBE, May 26, 1995, (Economy), at 67.
10. Interactive Group Intervenes in Prodigy Libel Case, NEWSBYTES NEWS NETWORK, Sept. 1, 1995, available in 1995 WL 9986718 (quoting Interactive Services Association Executive Director Robert Smith); see Dan Blake, Prodigy Case Tests Laws On-Line: The Company Screens Postings That Hurt It in a Libel Case, PHILADELPHIA INQUIRER, May 27, 1995, at D1; James Coates, Judge Says Prodigy Subject to Libel Claims: 1st Amendment Issue on On-Line, CHI. TRIB., May 27, 1995, § 2 (Business), at 1; Elizabeth Corcoran, $200 Million Libel Suit Against Prodigy Dropped: On-Line Industry Had Worried About Case, WASH. POST, Oct. 25, 1995, at F2; On-Line Service Is Subject to Libel Regulations, Judge Rules, L.A. TIMES, May 26, 1995, at D2; Aaron Zitner, New York Judge Allows Ground-Breaking Libel Suit Against Prodigy, BOSTON GLOBE, May 26, 1995, (Economy), at 67.
11. Interactive Group Intervenes in Prodigy Libel Case, NEWSBYTES NEWS NETWORK, Sept. 1, 1995, available in 1995 WL 9986718 (quoting Interactive Services Association Executive Director Robert Smith); see Dan Blake, Prodigy Case Tests Laws On-Line: The Company Screens Postings That Hurt It in a Libel Case, PHILADELPHIA INQUIRER, May 27, 1995, at D1; James Coates, Judge Says Prodigy Subject to Libel Claims: 1st Amendment Issue on On-Line, CHI. TRIB., May 27, 1995, § 2 (Business), at 1; Elizabeth Corcoran, $200 Million Libel Suit Against Prodigy Dropped: On-Line Industry Had Worried About Case, WASH. POST, Oct. 25, 1995, at F2; On-Line Service Is Subject to Libel Regulations, Judge Rules, L.A. TIMES, May 26, 1995, at D2; Aaron Zitner, New York Judge Allows Ground-Breaking Libel Suit Against Prodigy, BOSTON GLOBE, May 26, 1995, (Economy), at 67.
12. 776 F. Supp. 135 (S.D.N.Y. 1991).
13. See Marie D'Amico, Steer Clear of Legal Potholes: Avoiding Legal Liability on the Web, DIGITAL MEDIA, May 31, 1996, at 12, 13-14 (suggesting that Stratton counsels against any monitoring of content on BBS forums); John B. Kennedy & Shoshana R. Davids, A Recent Decision Holding an Online Service Provider Liable for Defamation Could Have Far-Reaching Effects for Operators Who Want to Maintain Content Control, NAT'L L.J., July 10, 1995, at B7, B7; Larry Savell, The Internet and the Law, EDITOR & PUBLISHER, Sept. 28, 1996, at 22, 23 ("Site operators may be better off not undertaking . . . any exercise of editorial control."); Harvey A. Silverglate, Net Ignorance Is Bliss, NAT'L L.J., July 24, 1995, at A19, A20 (referring to Stratton as a case that encourages "benign neglect" in monitoring the quality of its system).
14. See Marie D'Amico, Steer Clear of Legal Potholes: Avoiding Legal Liability on the Web, DIGITAL MEDIA, May 31, 1996, at 12, 13-14 (suggesting that Stratton counsels against any monitoring of content on BBS forums); John B. Kennedy & Shoshana R. Davids, A Recent Decision Holding an Online Service Provider Liable for Defamation Could Have Far-Reaching Effects for Operators Who Want to Maintain Content Control, NAT'L L.J., July 10, 1995, at B7, B7; Larry Savell, The Internet and the Law, EDITOR & PUBLISHER, Sept. 28, 1996, at 22, 23 ("Site operators may be better off not undertaking . . . any exercise of editorial control."); Harvey A. Silverglate, Net Ignorance Is Bliss, NAT'L L.J., July 24, 1995, at A19, A20 (referring to Stratton as a case that encourages "benign neglect" in monitoring the quality of its system).
15. See Marie D'Amico, Steer Clear of Legal Potholes: Avoiding Legal Liability on the Web, DIGITAL MEDIA, May 31, 1996, at 12, 13-14 (suggesting that Stratton counsels against any monitoring of content on BBS forums); John B. Kennedy & Shoshana R. Davids, A Recent Decision Holding an Online Service Provider Liable for Defamation Could Have Far-Reaching Effects for Operators Who Want to Maintain Content Control, NAT'L L.J., July 10, 1995, at B7, B7; Larry Savell, The Internet and the Law, EDITOR & PUBLISHER, Sept. 28, 1996, at 22, 23 ("Site operators may be better off not undertaking . . . any exercise of editorial control."); Harvey A. Silverglate, Net Ignorance Is Bliss, NAT'L L.J., July 24, 1995, at A19, A20 (referring to Stratton as a case that encourages "benign neglect" in monitoring the quality of its system).
16. See Marie D'Amico, Steer Clear of Legal Potholes: Avoiding Legal Liability on the Web, DIGITAL MEDIA, May 31, 1996, at 12, 13-14 (suggesting that Stratton counsels against any monitoring of content on BBS forums); John B. Kennedy & Shoshana R. Davids, A Recent Decision Holding an Online Service Provider Liable for Defamation Could Have Far-Reaching Effects for Operators Who Want to Maintain Content Control, NAT'L L.J., July 10, 1995, at B7, B7; Larry Savell, The Internet and the Law, EDITOR & PUBLISHER, Sept. 28, 1996, at 22, 23 ("Site operators may be better off not undertaking . . . any exercise of editorial control."); Harvey A. Silverglate, Net Ignorance Is Bliss, NAT'L L.J., July 24, 1995, at A19, A20 (referring to Stratton as a case that encourages "benign neglect" in monitoring the quality of its system).
17. See Cubby, 776 F. Supp. at 140-41.
18. See LANCE ROSE, NETLAW: YOUR RIGHTS IN THE ONLINE WORLD 4 (1995). Because use of the Internet has more than doubled over the past 18 months, this figure is rapidly increasing. See Rajiv Chandrasekaran, Internet Use Has More Than Doubled in Last 18 Months, Survey Finds, WASH. POST, Mar. 13, 1997, at E3. The informality of the Internet arises, in part, from the fact that users generally are identified not by their full names but rather by pseudonyms. See, e.g., THE NEW HACKER'S DICTIONARY 289 (Eric S. Raymond ed., 1991) [hereinafter HACKER'S DICTIONARY] (defining "pseudo" as "[a]n electronic-mail or USENET persona adopted . . . for amusement value").
19. See LANCE ROSE, NETLAW: YOUR RIGHTS IN THE ONLINE WORLD 4 (1995). Because use of the Internet has more than doubled over the past 18 months, this figure is rapidly increasing. See Rajiv Chandrasekaran, Internet Use Has More Than Doubled in Last 18 Months, Survey Finds, WASH. POST, Mar. 13, 1997, at E3. The informality of the Internet arises, in part, from the fact that users generally are identified not by their full names but rather by pseudonyms. See, e.g., THE NEW HACKER'S DICTIONARY 289 (Eric S. Raymond ed., 1991) [hereinafter HACKER'S DICTIONARY] (defining "pseudo" as "[a]n electronic-mail or USENET persona adopted . . . for amusement value").
20. See LANCE ROSE, NETLAW: YOUR RIGHTS IN THE ONLINE WORLD 4 (1995). Because use of the Internet has more than doubled over the past 18 months, this figure is rapidly increasing. See Rajiv Chandrasekaran, Internet Use Has More Than Doubled in Last 18 Months, Survey Finds, WASH. POST, Mar. 13, 1997, at E3. The informality of the Internet arises, in part, from the fact that users generally are identified not by their full names but rather by pseudonyms. See, e.g., THE NEW HACKER'S DICTIONARY 289 (Eric S. Raymond ed., 1991) [hereinafter HACKER'S DICTIONARY] (defining "pseudo" as "[a]n electronic-mail or USENET persona adopted . . . for amusement value").
21. For example, a message that proclaims "Dave's a nut" can have two entirely different interpretations: an insult or a sarcastic remark. The only way to determine the appropriate meaning is to rely upon textual symbols, known as emoticons, within the message- such as ":-)", a sideways happy face representing sarcasm or lightheartedness. See HACKER'S DICTIONARY, supra note 10, at 142-43. Without these symbols, some postings lead individuals to believe that they have been defamed. See W. John Moore, Taming Cyberspace, 1992 NAT'L J. 745, 747 (describing the use of various emoticons to show emotion on the Internet).
22. For example, a message that proclaims "Dave's a nut" can have two entirely different interpretations: an insult or a sarcastic remark. The only way to determine the appropriate meaning is to rely upon textual symbols, known as emoticons, within the message- such as ":-)", a sideways happy face representing sarcasm or lightheartedness. See HACKER'S DICTIONARY, supra note 10, at 142-43. Without these symbols, some postings lead individuals to believe that they have been defamed. See W. John Moore, Taming Cyberspace, 1992 NAT'L J. 745, 747 (describing the use of various emoticons to show emotion on the Internet).
23. See Todd Woody, Libel and the Internet: Round Peg, Square Hole, LEGAL TIMES, Nov. 4, 1996, at 43; cf. Allen Lacy, When Is Gardening a Subversive Act?, N.Y. TIMES, Jan. 31, 1991, at C1 (describing a message, posted to a gardening discussion group relating issues of the Persian Gulf War to gardening and classic literature, which was rejected by Prodigy censors). For a discussion of the possible jurisdictional issues that may arise when filing a lawsuit in this context, see Cynthia L. Counts & C. Amanda Martin, Libel in Cyberspace: A Framework for Addressing Liability and Jurisdictional Issues in this New Frontier, 59 ALB. L. REV. 1083, 1115-32 (1996), and Richard S. Zembek, Comment, Jurisdiction and the Internet: Fundamental Fairness in the Networked World of Cyberspace, 6 ALB. L.J. SCI. & TECH. 339 (1996).
24. See Todd Woody, Libel and the Internet: Round Peg, Square Hole, LEGAL TIMES, Nov. 4, 1996, at 43; cf. Allen Lacy, When Is Gardening a Subversive Act?, N.Y. TIMES, Jan. 31, 1991, at C1 (describing a message, posted to a gardening discussion group relating issues of the Persian Gulf War to gardening and classic literature, which was rejected by Prodigy censors). For a discussion of the possible jurisdictional issues that may arise when filing a lawsuit in this context, see Cynthia L. Counts & C. Amanda Martin, Libel in Cyberspace: A Framework for Addressing Liability and Jurisdictional Issues in this New Frontier, 59 ALB. L. REV. 1083, 1115-32 (1996), and Richard S. Zembek, Comment, Jurisdiction and the Internet: Fundamental Fairness in the Networked World of Cyberspace, 6 ALB. L.J. SCI. & TECH. 339 (1996).
25. See Todd Woody, Libel and the Internet: Round Peg, Square Hole, LEGAL TIMES, Nov. 4, 1996, at 43; cf. Allen Lacy, When Is Gardening a Subversive Act?, N.Y. TIMES, Jan. 31, 1991, at C1 (describing a message, posted to a gardening discussion group relating issues of the Persian Gulf War to gardening and classic literature, which was rejected by Prodigy censors). For a discussion of the possible jurisdictional issues that may arise when filing a lawsuit in this context, see Cynthia L. Counts & C. Amanda Martin, Libel in Cyberspace: A Framework for Addressing Liability and Jurisdictional Issues in this New Frontier, 59 ALB. L. REV. 1083, 1115-32 (1996), and Richard S. Zembek, Comment, Jurisdiction and the Internet: Fundamental Fairness in the Networked World of Cyberspace, 6 ALB. L.J. SCI. & TECH. 339 (1996).
26. See Todd Woody, Libel and the Internet: Round Peg, Square Hole, LEGAL TIMES, Nov. 4, 1996, at 43; cf. Allen Lacy, When Is Gardening a Subversive Act?, N.Y. TIMES, Jan. 31, 1991, at C1 (describing a message, posted to a gardening discussion group relating issues of the Persian Gulf War to gardening and classic literature, which was rejected by Prodigy censors). For a discussion of the possible jurisdictional issues that may arise when filing a lawsuit in this context, see Cynthia L. Counts & C. Amanda Martin, Libel in Cyberspace: A Framework for Addressing Liability and Jurisdictional Issues in this New Frontier, 59 ALB. L. REV. 1083, 1115-32 (1996), and Richard S. Zembek, Comment, Jurisdiction and the Internet: Fundamental Fairness in the Networked World of Cyberspace, 6 ALB. L.J. SCI. & TECH. 339 (1996).
27. See Friedman, supra note 2, at 799; Hermann, supra note 4, at 446.
28. See Friedman, supra note 2, at 799; Savell, supra note 8, at 23.
29. See Counts & Martin, supra note 12, at 1109 (suggesting that an on-line service "abdicate responsibility" as one means of avoiding liability); D'Amico, supra note 8, at 13-14; Savell, supra note 8, at 23 ("Site operators may be better off not undertaking . . . any exercise of editorial control."); see also Kennedy & Davids, supra note 8, at B9.
30. Alex Alben, What Is an On-line Service? (In the Eyes of the Law), COMPUTER LAW., June 1996, at 1, 8.
31. See Henry H. Perritt, Jr., Tort Liability, the First Amendment, and Equal Access to Electronic Networks, 5 HARV. J.L. & TECH. 65, 140 (1992); Eugene Volokh, Chilled Prodigy, REASON, Aug./Sept. 1995, at 49, 50.
32. See Henry H. Perritt, Jr., Tort Liability, the First Amendment, and Equal Access to Electronic Networks, 5 HARV. J.L. & TECH. 65, 140 (1992); Eugene Volokh, Chilled Prodigy, REASON, Aug./Sept. 1995, at 49, 50.
33. See Dean M. Gloster & John L. Cooper, Untangling Legal Knots on the Web: Avoiding Internet Liabilities, INTELL. PROP. LITIG. REP., Oct. 9, 1996, at 19, 22 ("As a practical matter, though, a business may have to impose all kinds of limitations just to preserve the character of its web site."); Kennedy & Davids, supra note 8, at B9 (suggesting that on-line services retain some editorial control, supplemented with disclaimers of obligations to edit).
34. 47 U.S.C.A. § 230(c) (West Supp. II 1996). The "Good Samaritan" subsection states: (c) Protection for "good samaritan" blocking and screening of offensive material (1) Treatment of publisher or speaker 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. (2) Civil liability No provider or user of an interactive computer service shall be held liable on account of - (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1). Id.
35. Telecommunications Act of 1996, Pub. L. No. 104-104, § 509, 110 Stat. 56, 137 (codified at 47 U.S.C. § 230).
36. See Noah Levine, Note, Establishing Legal Accountability for Anonymous Communication in Cyberspace, 96 COLUM. L. REV. 1526, 1552 (1996); see also Counts & Martin, supra note 12, at 1111-12 ("[The Good Samaritan protections] may provide a defense to libel claims against access providers."). For a discussion of the CDA's legislative history, see generally Robert Cannon, The Legislative History of Senator Exon's Communications Decency Act: Regulating Barbarians on the Information Superhighway, 49 FED. COMM. L.J. 51 (1996), and Donald W. Hawthorne, More on Decency Act, N.Y. L.J., June 6, 1996, at 2.
37. See Noah Levine, Note, Establishing Legal Accountability for Anonymous Communication in Cyberspace, 96 COLUM. L. REV. 1526, 1552 (1996); see also Counts & Martin, supra note 12, at 1111-12 ("[The Good Samaritan protections] may provide a defense to libel claims against access providers."). For a discussion of the CDA's legislative history, see generally Robert Cannon, The Legislative History of Senator Exon's Communications Decency Act: Regulating Barbarians on the Information Superhighway, 49 FED. COMM. L.J. 51 (1996), and Donald W. Hawthorne, More on Decency Act, N.Y. L.J., June 6, 1996, at 2.
38. See Noah Levine, Note, Establishing Legal Accountability for Anonymous Communication in Cyberspace, 96 COLUM. L. REV. 1526, 1552 (1996); see also Counts & Martin, supra note 12, at 1111-12 ("[The Good Samaritan protections] may provide a defense to libel claims against access providers."). For a discussion of the CDA's legislative history, see generally Robert Cannon, The Legislative History of Senator Exon's Communications Decency Act: Regulating Barbarians on the Information Superhighway, 49 FED. COMM. L.J. 51 (1996), and Donald W. Hawthorne, More on Decency Act, N.Y. L.J., June 6, 1996, at 2.
39. The language of the "Good Samaritan" provision does not address restrictions on access to libelous material. See Counts & Martin, supra note 12, at 1112. The Senate Conference Report on the provision, also known as the "Cox/Wyden Amendment" or "Online Family Empowerment Amendment," however, explicitly states that "[o]ne of the specific purposes of this section is to overrule [Stratton] and any other similar decisions which have treated such providers . . . as publishers . . . because they have restricted access to objectionable material." H.R. CONF. REP. NO. 104-458, at 194 (1996). It is not clear, however, that the freedom to restrict access to "objectionable material" encompasses all editorial control by an on-line service. Rather, the legislative history and commentary on the "Good Samaritan" provision emphasized "Prodigy's screening for sexually explicit material." See Counts & Martin, supra note 12, at 1112. Interpreting the "Good Samaritan" provision to protect against libel claims when an on-line service engages in editorial control could result in unintended consequences. See Cannon, supra note 21, at 63 n.53. For example, "[i]f a service provider violates the legal rights of users, the service provider can claim that it was seeking to restrict access to offensive material and claim immunity under the CDA. Injured individuals have potentially lost an important cause of action." Id. Further, "[i]f courts construe the Good Samaritan protections and the Conference Committee Report as creating broad defenses against all actions arising out of content provided by a third party, online participants will have significantly greater protections than their print counterparts." Counts & Martin, supra note 12, at 1113. In addition, section 230(c)'s heading, "Protection for 'good Samaritan' blocking and screening of offensive material," suggests that this provision applies only to "offensive" material. See 47 U.S.C. § 230(c); Levine, supra note 21, at 1553-54. Section 230(c)(2)(A) describes the relevant offensive material to include "material that the provider . . . considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable". 47 U.S.C. § 230(c)(2)(A). Although the terms "harassing[] or otherwise objectionable" may include defamatory statements, the legislative history of the Good Samaritan provision suggests otherwise. See 141 CONG. REC. H8469-70 (daily ed. Aug. 4, 1995); see also Levine, supra note 21, at 1553-54 & nn.147-48. When delivering a speech about this provision, co-sponsor Representative Christopher Cox expressed concern over the result in Stratton, although he focused primarily on the issue of liability resulting from editorial control over obscene material. See 141 CONO. REC. H8469-70 (daily ed. Aug. 4, 1995).
40. See Reno v. ACLU, 117 S. Ct. 2329 (1997), aff'g 929 F. Supp. 824 (E.D. Pa. 1996). Reno addresses only the constitutionality of 47 U.S.C. §§ 223(a) and 223(d). See 929 F. Supp. at 828.
41. See Counts & Martin, supra note 12, at 1111-15; Levine, supra note 21, at 1553-54; Hawthorne, supra note 21, at 2 ("The Justice Department has publicly taken the position that it will not enforce the provisions of the CDA imposing liability on Internet access providers pending a decision in the suit currently challenging the constitutionality of the CDA.").
42. Because the Stratton court held Prodigy to a publisher's standard of liability, Jacob Zamansky, counsel for Stratton Oakmont, became a renowned figure in the legal community. Zamansky traveled to Edinburgh, Scotland to participate in an international conference on multimedia technology and libel law. See Matthew Goldstein, Litigator Hits Big Time with Prodigy Libel Win, N.Y. L.J., Aug. 31, 1995, at 1. He was a featured guest in a nationwide call-in telephone conference organized by the Practicing Law Institute. See id. AOL invited him to participate in a forum regarding nonlitigious solutions for on-line defamation. See id. Zamansky likened this experience to a "ball player who gets the chance to hit the winning homer in the World Series." Id. Two years after Stratton, on-line defamation law is still at the center of much debate among legal commentators. For example, within the span of a month, a single article that expressed concern for the future of on-line defamation cases was published in at least six different publications across the country. See, e.g., Todd Woody, Internet Libel: The Shape of Things to Come, TEXAS LAW., Oct. 28, 1996, at 32; Todd Woody, Internet Libel: The Shape of Things to Come, NJ. L.J., Oct. 21, 1996, at 4; Woody, supra note 12, at 43; Todd Woody, Looming Libel Suits, CONN. L. TRIB., Nov. 4, 1996, at 24.
43. Because the Stratton court held Prodigy to a publisher's standard of liability, Jacob Zamansky, counsel for Stratton Oakmont, became a renowned figure in the legal community. Zamansky traveled to Edinburgh, Scotland to participate in an international conference on multimedia technology and libel law. See Matthew Goldstein, Litigator Hits Big Time with Prodigy Libel Win, N.Y. L.J., Aug. 31, 1995, at 1. He was a featured guest in a nationwide call-in telephone conference organized by the Practicing Law Institute. See id. AOL invited him to participate in a forum regarding nonlitigious solutions for on-line defamation. See id. Zamansky likened this experience to a "ball player who gets the chance to hit the winning homer in the World Series." Id. Two years after Stratton, on-line defamation law is still at the center of much debate among legal commentators. For example, within the span of a month, a single article that expressed concern for the future of on-line defamation cases was published in at least six different publications across the country. See, e.g., Todd Woody, Internet Libel: The Shape of Things to Come, TEXAS LAW., Oct. 28, 1996, at 32; Todd Woody, Internet Libel: The Shape of Things to Come, NJ. L.J., Oct. 21, 1996, at 4; Woody, supra note 12, at 43; Todd Woody, Looming Libel Suits, CONN. L. TRIB., Nov. 4, 1996, at 24.
44. Because the Stratton court held Prodigy to a publisher's standard of liability, Jacob Zamansky, counsel for Stratton Oakmont, became a renowned figure in the legal community. Zamansky traveled to Edinburgh, Scotland to participate in an international conference on multimedia technology and libel law. See Matthew Goldstein, Litigator Hits Big Time with Prodigy Libel Win, N.Y. L.J., Aug. 31, 1995, at 1. He was a featured guest in a nationwide call-in telephone conference organized by the Practicing Law Institute. See id. AOL invited him to participate in a forum regarding nonlitigious solutions for on-line defamation. See id. Zamansky likened this experience to a "ball player who gets the chance to hit the winning homer in the World Series." Id. Two years after Stratton, on-line defamation law is still at the center of much debate among legal commentators. For example, within the span of a month, a single article that expressed concern for the future of on-line defamation cases was published in at least six different publications across the country. See, e.g., Todd Woody, Internet Libel: The Shape of Things to Come, TEXAS LAW., Oct. 28, 1996, at 32; Todd Woody, Internet Libel: The Shape of Things to Come, NJ. L.J., Oct. 21, 1996, at 4; Woody, supra note 12, at 43; Todd Woody, Looming Libel Suits, CONN. L. TRIB., Nov. 4, 1996, at 24.
45. Because the Stratton court held Prodigy to a publisher's standard of liability, Jacob Zamansky, counsel for Stratton Oakmont, became a renowned figure in the legal community. Zamansky traveled to Edinburgh, Scotland to participate in an international conference on multimedia technology and libel law. See Matthew Goldstein, Litigator Hits Big Time with Prodigy Libel Win, N.Y. L.J., Aug. 31, 1995, at 1. He was a featured guest in a nationwide call-in telephone conference organized by the Practicing Law Institute. See id. AOL invited him to participate in a forum regarding nonlitigious solutions for on-line defamation. See id. Zamansky likened this experience to a "ball player who gets the chance to hit the winning homer in the World Series." Id. Two years after Stratton, on-line defamation law is still at the center of much debate among legal commentators. For example, within the span of a month, a single article that expressed concern for the future of on-line defamation cases was published in at least six different publications across the country. See, e.g., Todd Woody, Internet Libel: The Shape of Things to Come, TEXAS LAW., Oct. 28, 1996, at 32; Todd Woody, Internet Libel: The Shape of Things to Come, NJ. L.J., Oct. 21, 1996, at 4; Woody, supra note 12, at 43; Todd Woody, Looming Libel Suits, CONN. L. TRIB., Nov. 4, 1996, at 24.
46. Although this Note focuses on commercial on-line services, the functional analysis applied here is relevant to any type of on-line service.
47. Two typical examples of private BBSs are Channel 1 BBS in Cambridge, Massachusetts and the Whole Earth 'Lectronic Link ("WELL") in Sausalito, California. See Eric Schlachter, Cyberspace, the Free Market and the Free Marketplace of Ideas: Recognizing Legal Differences in Computer Bulletin Board Functions, 16 HASTINGS COMM. & ENT. L.J. 87, 102-03 (1993). This Note categorizes government BBSs, like the Santa Monica Public Electronic Network (PEN), as private. See id. at 104-05.
48. Commentator Edward Naughton notes that [c]omputer bulletin boards were traditionally portrayed as the domain of computer wizards and teenage hackers using their arcane knowledge to break into private and government computer systems purely for the thrill of it. Occasional reports described the role of computer bulletin boards in more sinister activities, such as software piracy and distribution of stolen credit card numbers. Edward J. Naughton, Note, Is Cyberspace a Public Forum? Computer Bulletin Boards, Free Speech, and State Action, 81 GEO. L.J. 409, 415 (1992) (internal citations omitted).
49. See Schlachter, supra note 27, at 91 n.9.
50. A modem is "a device that converts data to a form that can be transmitted, as by telephone, to data-processing equipment where a similar device reconverts it." WEBSTER'S NEW WORLD DICTIONARY 871 (3d ed. 1994).
51. See Schlachter, supra note 27, at 91 n.9; Note, The Message in the Medium: The First Amendment on the Information Superhighway, 107 HARV. L. REV. 1062, 1066 (1994).
52. See ACLU v. Reno, 929 F. Supp. 824, 833 (E.D. Pa. 1996), aff'd, 117 S. Ct. 2329 (1997); see also Eric C. Jensen, An Electronic Soapbox: Computer Bulletin Boards and the First Amendment, 39 FED. COMM. L.J. 217, 220 (1987).
53. The term "cyberspace" was coined by the novelist William Gibson. See WILLIAM GIBSON, NEUROMANCER 4 (1984); see also Naughton, supra note 28, at 409 n.*.
54. See David P. Miranda, Defamation in Cyberspace: Stratton Oakmont, Inc. v. Prodigy Services Co., 5 ALB. L.J. SCI. & TECH. 229, 231 n.13 (1996); R. Hayes Johnson, Jr., Case Note, Defamation in Cyberspace: A Court Takes a Wrong Turn on the Information Superhighway in Stratton Oakmont, Inc. v. Prodigy Services Co., 49 ARK. L. REV. 589, 590 n.3 (1996) (quoting Jamie Portman, Confronting Cyberspace: In the Future World of Novelist William Gibson, the Information Masters Hold the Keys to Power, CALGARY HERALD, June 11, 1995, at B9 ("[Cyberspace is] where we do almost everything these days.")).
55. See Kelly Tickle, Comment, The Vicarious Liability of Electronic Bulletin Board Operators for the Copyright Infringement Occurring on Their Bulletin Boards, 80 IOWA L. REV. 391, 396 (1995); see also ROSE, supra note 10, at 4.
56. See ROSE, supra note 10, at 4 (stating that private BBSs average "a few dozen callers per system"); Tickle, supra note 35, at 395 (citing Michael Broadhurst, Pinning Hopes on Computer Bulletin Boards: People Are Starting Home Businesses by Offering Services that Help Hi-Tech Aficionados Reach the Information Superhighway, L.A. TIMES, Aug. 2, 1994, at A10).
57. See Tickle, supra note 35, at 398-99.
58. See Miranda, supra note 34, at 230-31. Some consider the Internet to be the world's largest operating anarchy. See Mike Jones, A Short History of the Internet: Part I, TRICITY COMPUTING MAG., Nov. 1994, at 5, 6. "[A]s many as 40 million people around the world . . . access the . . . Internet . . . . That figure is expected to grow to 200 million Internet users by the year 1999." ACLU v. Reno, 929 F. Supp. 824, 831 (E.D. Pa. 1996), aff'd, 117 S. Ct. 2329 (1997). For a historical analysis of the Internet, see Edwin Diamond & Stephen Bates, The Ancient History of the Internet, 46 AM. HERITAGE 34 (1995).
59. See Miranda, supra note 34, at 230-31. Some consider the Internet to be the world's largest operating anarchy. See Mike Jones, A Short History of the Internet: Part I, TRICITY COMPUTING MAG., Nov. 1994, at 5, 6. "[A]s many as 40 million people around the world . . . access the . . . Internet . . . . That figure is expected to grow to 200 million Internet users by the year 1999." ACLU v. Reno, 929 F. Supp. 824, 831 (E.D. Pa. 1996), aff'd, 117 S. Ct. 2329 (1997). For a historical analysis of the Internet, see Edwin Diamond & Stephen Bates, The Ancient History of the Internet, 46 AM. HERITAGE 34 (1995).
60. See Religious Tech. Ctr. v. Netcom On-Line Communications Servs., Inc., 907 F. Supp. 1361, 1365 n.2 (N.D. Cal. 1995) (citing DANIEL P. DERN, THE INTERNET GUIDE FOR NEW USERS 16 (1994)). "Today, the Internet is a many-to-many communications medium, meaning that anyone with an Internet connection can talk to anyone else [with an Internet connection] and they can publish their information through the same connections as anyone else." Richard P. Klau, Lawyers Who Keep Up with the Internet Explosion Can Look Forward to a Lively Career, STUDENT LAW., May 1996, at 13, 14.
61. See Religious Tech. Ctr. v. Netcom On-Line Communications Servs., Inc., 907 F. Supp. 1361, 1365 n.2 (N.D. Cal. 1995) (citing DANIEL P. DERN, THE INTERNET GUIDE FOR NEW USERS 16 (1994)). "Today, the Internet is a many-to-many communications medium, meaning that anyone with an Internet connection can talk to anyone else [with an Internet connection] and they can publish their information through the same connections as anyone else." Richard P. Klau, Lawyers Who Keep Up with the Internet Explosion Can Look Forward to a Lively Career, STUDENT LAW., May 1996, at 13, 14.
62. See Reno, 929 F. Supp. at 834-35; Religious Tech. Ctr., 907 F. Supp. at 1365 n.2; see also George P. Long, III, Comment, Who Are You?: Identity and Anonymity in Cyberspace, 55 U. PITT. L. REV. 1177, 1180 (1994); David Bruning, Blasting Along the InfoBahn, ASTRONOMY, June 1995, at 74, 76.
63. See Reno, 929 F. Supp. at 834-35; Religious Tech. Ctr., 907 F. Supp. at 1365 n.2; see also George P. Long, III, Comment, Who Are You?: Identity and Anonymity in Cyberspace, 55 U. PITT. L. REV. 1177, 1180 (1994); David Bruning, Blasting Along the InfoBahn, ASTRONOMY, June 1995, at 74, 76.
64. See Reno, 929 F. Supp. at 834-35; Religious Tech. Ctr., 907 F. Supp. at 1365 n.2; see also George P. Long, III, Comment, Who Are You?: Identity and Anonymity in Cyberspace, 55 U. PITT. L. REV. 1177, 1180 (1994); David Bruning, Blasting Along the InfoBahn, ASTRONOMY, June 1995, at 74, 76.
65. See Religious Tech. Ctr., 907 F. Supp. at 1365 n.2.
66. See id.; see also Long, supra note 40, at 1181. Long states: The Net's vast resources are spread out across all of its computers. Without a formal hierarchy, no central terminal is more important than any other. Decentralization makes the Net virtually indestructible; if one computer loses power or data, the thousands of other machines connected to the Net remain unaffected, because the computers are not interdependent. Id.
67. See Long, supra note 40, at 1181 ("The Internet, as it functions today, has been compared to the American West in the 1800s: an uncharted 'electronic frontier' that has yet to be fully explored.").
68. See Religious Tech. Ctr., 907 F. Supp. at 1365 n.2 (quoting Bruning, supra note 40, at 76). Although this Note does not address the role of ISPs on the Internet, the same legal standards applicable to commercial on-line services can apply to ISPs that exert some form of editorial control. For a brief discussion on commercial on-line services' gateways to the Internet and other on-line services, see infra note 71 and accompanying text.
69. Although the Internet is most commonly associated with the World Wide Web, this Note focuses on the BBS-type features that on-line services offer, which may include access to the Internet.
70. See Religious Tech. Ctr., 907 F. Supp. at 1365 n.4 (quoting DERN, supra note 39, at 96-97).
71. See ACLU v. Reno, 929 F. Supp. 824, 835 (E.D. Pa. 1996), aff'd, 117 S. Ct. 2329 (1997).
72. See Richard P. Klau, The Law Struggles to Determine the Potential Liability of Internet Service Providers, STUDENT LAW., Mar. 1996, at 13, 13-14; see also Philip Elmer-Dewitt, Battle for the Soul of the Internet, TIME, July 25, 1994, at 50, 53-54. Additional Usenet newsgroups include misc.forsale, misc.jobs.offered, rec.food.cooking, rec.arts.startrek.info, sci.psychology, soc.culture.african.american, soc.feminism, alt.rock-nroll.metal, alt.supermodels and alt.tv.ren-n-stimpy. See David Landis, Exploring the Online Universe, USA TODAY, Oct. 7, 1993, at 4D.
73. See Richard P. Klau, The Law Struggles to Determine the Potential Liability of Internet Service Providers, STUDENT LAW., Mar. 1996, at 13, 13-14; see also Philip Elmer-Dewitt, Battle for the Soul of the Internet, TIME, July 25, 1994, at 50, 53-54. Additional Usenet newsgroups include misc.forsale, misc.jobs.offered, rec.food.cooking, rec.arts.startrek.info, sci.psychology, soc.culture.african.american, soc.feminism, alt.rock-nroll.metal, alt.supermodels and alt.tv.ren-n-stimpy. See David Landis, Exploring the Online Universe, USA TODAY, Oct. 7, 1993, at 4D.
74. See Richard P. Klau, The Law Struggles to Determine the Potential Liability of Internet Service Providers, STUDENT LAW., Mar. 1996, at 13, 13-14; see also Philip Elmer-Dewitt, Battle for the Soul of the Internet, TIME, July 25, 1994, at 50, 53-54. Additional Usenet newsgroups include misc.forsale, misc.jobs.offered, rec.food.cooking, rec.arts.startrek.info, sci.psychology, soc.culture.african.american, soc.feminism, alt.rock-nroll.metal, alt.supermodels and alt.tv.ren-n-stimpy. See David Landis, Exploring the Online Universe, USA TODAY, Oct. 7, 1993, at 4D.
75. See The Internet's Best Kept Secret: The 100 Best Newsgroups, PC/COMPUTING, Dec. 1, 1996, available in 1996 WL 2091084.
76. See Diamond & Bates, supra note 38, at 38.
77. See Rex S. Heinke & Heather D. Rafter, Rough Justice in Cyberspace: Liability on the Electronic Frontier, COMPUTER LAW., July 1994, at 1, 2. These authors state: By the end of 1993, the Internet network . . . was carrying approximately 45 billion packets of information a month. The latest estimate is that the Internet connects about 2.2 million computers and more than 20 million users in 135 countries, and this electronic population is expected to double each year for the foreseeable future. Id.; see also Long, supra note 40, at 1181 (describing the Usenet as a "network of thousands of special interest groups that boasts millions of readers"); Tickle, supra note 35, at 394 & n.24 ( citing Peter H. Lewis, Strangers, Not Their Computers, Build a Network in Time of Grief, N.Y. TIMES, Mar. 8, 1994, at A1).
78. See Rex S. Heinke & Heather D. Rafter, Rough Justice in Cyberspace: Liability on the Electronic Frontier, COMPUTER LAW., July 1994, at 1, 2. These authors state: By the end of 1993, the Internet network . . . was carrying approximately 45 billion packets of information a month. The latest estimate is that the Internet connects about 2.2 million computers and more than 20 million users in 135 countries, and this electronic population is expected to double each year for the foreseeable future. Id.; see also Long, supra note 40, at 1181 (describing the Usenet as a "network of thousands of special interest groups that boasts millions of readers"); Tickle, supra note 35, at 394 & n.24 ( citing Peter H. Lewis, Strangers, Not Their Computers, Build a Network in Time of Grief, N.Y. TIMES, Mar. 8, 1994, at A1).
79. See Johnson, supra note 34, at 590 n.3.
80. See id.
81. See Schlachter, supra note 27, at 97 n.34 ("[N]ormally the freely functioning market [on the Usenet] responds to unpopular messages by flooding the sender's mailbox with disapproving messages . . . ."); Elmer-Dewitt, supra note 48, at 53.
82. See David L. Wilson, A Computer Program That Can Censor Electronic Messages Sets Off a Furor, CHRON. HIGHER EDUC., May 12, 1993, at A21; see also Elmer-Dewitt, supra note 48, at 52 (describing an information-seeking program, known as a "cancelbot," which can roam the Internet, deleting messages as it goes).
83. See Wilson, supra note 55, at A21.
84. Cf. Edward A. Cavazos, Computer Bulletin Board Systems and the Right of Reply: Redefining Defamation Liability for a New Technology, 12 REV. LITIG. 231, 242 (1992) ("[S]ysop moderation and control over message content is often essential to maintaining a proper flow of discussion.").
85. Because individuals who exert ad hoc editorial control typically cannot be classified as either a publisher, distributor, or common carrier, they generally are not subject to third-party defamation liability. See infra notes 101-104 and accompanying text.
86. See David L. Wilson, Many Academics Exchange Information Through Electronic "Newsgroups", CHRON. HIGHER EDUC., May 12, 1993, at A25 (explaining how a moderated newsgroup operates).
87. See ACLU v. Reno, 929 F. Supp. 824, 833 (E.D. Pa. 1996), aff'd, 117 S. Ct. 2329 (1997). AOL, CompuServe, and Prodigy are the three largest privately owned commercial on-line service providers, with 3 million, 3.2 million, and 1.6 million subscribers respectively. See Hermann, supra note 4, at 426 nn.20-22.
88. See Hermann, supra note 4, at 429-30.
89. See id. at 430 n.47, 432; Naughton, supra note 28, at 416 n.42. AOL BBS forums, however, more closely resemble the Usenet because content is regulated primarily by the users. See id.
90. See Naughton, supra note 28, at 416.
91. See id. at 416-17 & n.41.
92. See id. at 417.
93. See id. at 416 n.41. A user may not have access to all areas of a commercial service, as some resources may require special software or additional subscription fees. See id. at 417.
94. See Schlachter, supra note 27, at 107-11. Analysis of the user/system resources and gateway features are beyond the scope of this Note because these features are subject, respectively, to comprehensive and no editorial control. They are discussed here simply to distinguish an on-line service's messaging system and, in particular, the BBS forum.
95. See id. at 107 ("[T]hese functions prove critical in determining sysops' and users' legal rights and obligations.").
96. See id. at 108-10. Prodigy users, for example, can access information provided by sources outside the on-line service, such as an encyclopedia, newspaper articles, weather forecasts, and financial information. See Naughton, supra note 28, at 418. "These libraries consist of information sources and typically include electronic newsletters and news wires, such as those provided by Reuters, Dow Jones, or Associated Press." Id. "Prodigy . . . maintains an on-line encyclopedia and provides articles from consumer magazines, airline schedules, weather reports, and catalogs of merchandise. CompuServe carries electronic newsletters such as Rumorville USA, a daily feature that provides information about broadcast journalism and journalists." Id.
97. See Loftus E. Becker, Jr., The Liability of Computer Bulletin Board Operators for Defamation Posted by Others, 22 CONN. L. REV. 203, 212-13 (1989); Schlachter, supra note 27, at 110-11. "Public file areas are popular because of their potential for misuse through software piracy." Naughton, supra note 28, at 417.
98. See Schlachter, supra note 27, at 111. For example, if an AOL subscriber sends an e-mail message to a Prodigy subscriber, the e-mail message would leave the AOL subscriber's computer, travel through AOL's gateway to the Internet, travel through the Internet to Prodigy's gateway, and arrive at the intended recipient. See id. at 111 & n.124.
99. See id. at 107. Many commercial on-line services also provide users with the ability to communicate in "real time." See id. at 108. These "chat rooms" or real-time conferences are beyond the scope of this Note.
100. See Naughton, supra note 28, at 418-19; Tickle, supra note 35, at 394 n.29.
101. See Lynn Becker, Electronic Publishing: First Amendment Issues in the Twenty-First Century, 13 FORDHAM URB. L.J. 801, 805 n.14 (1985). Another commentator has similarly referred to on-line services as common carriers, like telephone companies. See Silverglate, supra note 8, at A20. For further discussion about common carriers, see Perritt, supra note 17, at 73-95.
102. See Naughton, supra note 28, at 419. But see David J. Loundy, E-Law: Legal Issues Affecting Computer Information Systems and Systems Operator Liability, 5 ALB. L.J. Scr. & TECH. 79, 83-84 (1993) (distinguishing e-mail from regular mail in three respects).
103. See Naughton, supra note 28, at 418.
104. See Loundy, supra note 75, at 83-84.
105. See id.
106. See Becker, supra note 70, at 236 ("Private transmissions, such as electronic mail, should in any event be protected . . . so long as the operator does not ordinarily read these private transmissions, since 'fault' can hardly be found in the failure to read other people's mail.").
107. See supra notes 46-58 and accompanying text.
108. See Schlachter, supra note 27, at 107.
109. See id.
110. See Thomas D. Brooks, Note, Catching Jellyfish in the Internet: The Public-Figure Doctrine and Defamation on Computer Bulletin Boards, 21 RUTGERS COMPUTER & TECH. L.J. 461, 467 (1995).
111. See id. (quoting Jensen, supra note 32, at 218).
112. See id. (quoting Motoko Rich, Electronic War of Words Heads from Computer to Court, FINANCIAL TIMES, Aug. 13, 1994, at 24).
113. "Board Leaders may delete notes that violate [Prodigy] guidelines . . . . Deletions occur only under limited circumstances involving obscenity, harassment, and disruption of the board, and only after the problem is brought to the attention of Prodigy or the Board Leader." Affidavit of Jennifer Ambrozek ¶¶ 31-32, Stratton Oakmont, Inc. v. Prodigy Servs. Co., No. 31063/94, 1995 WL 805178 (N.Y. Sup. Ct. Dec. 11, 1995) (internal citations omitted).
114. See Becker, supra note 70, at 211.
115. See Perritt, supra note 17, at 140 ("It is unlikely that networks will survive where absolutely anyone can publish and users can read everything, deciding for themselves about value."); Schlachter, supra note 27, at 135 & n.265 ("[E]diting and removing material not pertinent to the discussion is vital to avoid 'clogged channels.' . . . Indeed, with the opportunity for all users to post messages at their pleasure, many forums can be easily overrun by 'junk postings' if sysops do not remove off topic messages.").
116. Inappropriate messages are usually those that are irrelevant to the topical BBS forum onto which the message was posted. See Schlachter, supra note 27, at 135 n.265 (referring to off-topic messages as "junk postings").
117. These practices are followed by Prodigy and CompuServe. See Affidavit of Jennifer Ambrozek ¶ 30, Stratton, 1995 WL 805178 (No. 31063/94); Naughton, supra note 28, at 416 n.42.
118. ROSE, supra note 10, at 9; see Lacy, supra note 12, at C1 (describing how a gardening forum on Prodigy drifted into discussions on the 1991 Persian Gulf War until Prodigy refused to post these off-topic messages).
119. See David P. Miranda, Internet Posing New Problems in Law, TIMES UNION (Albany, N.Y.), Feb. 25, 1996, at B1. This commentator states: The number of notes posted on Prodigy's bulletin boards exceed[] 75,000 a day, almost one per second. . . . Reviewing such messages before posting, without severely restraining the free flow of ideas and information, is virtually impossible because of the volume of messages posted and the speed with which they are transmitted. Id.
120. See Naughton, supra note 28, at 416 n.42.
121. See id.; Alben, supra note 16, at 8 n.6 ("Starwave . . . use[s] a software program that finds and deletes a combination of 18 'dirty' words, before they can be displayed on screen.").
122. See Naughton, supra note 28, at 416 n.42; Miranda, supra note 92, at Bl. Following the Stratton litigation, Prodigy abandoned the use of this scanning software.
123. See Johnson, supra note 34, at 609 n.96 ("This is commonly known as 'George Carlin' software, in reference to an infamous comedy routine by comedian [George] Carlin known as the 'Seven Dirty Words.'"); Miranda, supra note 92, at B1.
124. See Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710, at *2 (N.Y. Sup. Ct. May 24, 1995); Schlachter, supra note 27, at 102 n.54.
125. See Stratton, 1995 WL 323710, at *3.
126. See supra notes 13-14 and accompanying text.
127. RESTATEMENT (SECOND) OF TORTS § 559 (1977).
128. This Note, however, emphasizes the identification of functions, as well as the corresponding level of editorial control and liability along the spectrum of those functions, rather than pigeon-holing a specific industry into one of these categories.
129. See Jensen, supra note 32, at 249-52; Schlachter, supra note 27, at 112.
130. This category encompasses the alleged defamer and the initial publisher of the statement, both of whom are referred to as the "primary publisher," see Cavazos, supra note 57, at 234, as well as any subsequent publisher of the statement, known as a "republisher," see Jensen, supra note 32, at 247-49.
131. Some commentators, including Loftus Becker and Eric Schlachter, use the term "secondary publisher" to describe the category that this Note refers to as a "distributor." See Becker, supra note 70, at 215; Schlachter, supra note 27, at 112.
132. See Becker, supra note 70, at 215. ("[T]he telephone company[] may pass information along but [is] not said to have published it and thus [is] not liable at all."); Schlachter, supra note 27, at 119. Analogizing the common carrier model to commercial on-line services is problematic due to the heavy regulation associated with common carriers as well as the contractual relationship between a commercial on-line service and a subscriber that is not present between a common carrier and its users. See Johnson, supra note 34, at 622-23.
133. See, e.g., Becker, supra note 70, at 215.
134. "Comprehensive" editorial control includes editing for offensiveness as well as for the truth of facts asserted, which often requires independent research. See Volokh, supra note 17, at 50 (explaining the difference between varying levels of editorial control).
135. See RESTATEMENT (SECOND) OF TORTS § 588 (1977).
136. 376 U.S. 254 (1964). For an interesting historical overview of this case, see ANTHONY LEWIS, MAKE NO LAW (1991).
137. See Sullivan, 376 U.S. at 287.
138. See id. at 258-59, 261.
139. See id. at 256.
140. See id. at 278-79.
141. Id. at 279-80.
142. See id.
143. 418 U.S. 323 (1974).
144. Id. at 347.
145. See id. at 347-48 & n.10; Becker, supra note 70, at 232 n.140.
146. See, e.g., Cavazos, supra note 57, at 234, 237-38, 240.
147. RESTATEMENT (SECOND) OF TORTS § 581(1) (1977); see Becker, supra note 70, at 215; Schlachter, supra note 27, at 118 (stating that distributors "are liable for defamatory statements by others only if they 'knew or had reason to know of the existence of defamatory material contained in the matter published . . . [unless] (a) the originator had a privilege or (b) the disseminator reasonably believed that the originator had a privilege.'") (omission and alteration in original) (quoting W. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 113, at 810-11 (5th ed. 1984)).
148. See Perritt, supra note 17, at 99-100 (referring to Fogg v. Boston & Lowell R.R., 20 N.E. 109, 110 (Mass. 1889) (holding the defendant railroad liable for a defamatory message on the company's bulletin board because the railroad was aware of the message and failed to remove it)); see also Heller v. Bianco, 244 P.2d 757, 759-60 (Cal. Dist. Ct. App. 1952) (holding that republication occurred when defendant tavern owner was on notice of a defamatory message on a bathroom wall but allowed the message to remain); Woodling v. Knickerbocker, 17 N.W. 387, 388 (Minn. 1883) (holding that the defendant's failure to remove a defamatory placard when he had authority to remove it was sufficient evidence for a jury to find that the defendant published the defamatory statement). But see Scott v. Hull, 259 N.E.2d 160, 162 (Ohio Ct. App. 1970) (holding that a building owner who failed to remove defamatory graffiti painted on the building was not liable in the absence of an affirmative act.)
149. 361 U.S. 147 (1959).
150. See id. at 148-49.
151. id. at 148 (quoting LOS ANGELES, CAL., MUNI. CODE § 41.01.1 (declared unconstitutional 1959)).
152. Id. at 153.
153. Id. (quoting The King v. Ewart [1905] 25 N.Z.L.R. 709, 729 (CA.)).
154. See id. at 153-54.
155. See id. at 154.
156. Id. at 155.
157. See id.
158. 800 F. Supp. 928 (E.D. Wash. 1992).
159. See id. at 931-32.
160. See id. at 930-31.
161. See id. at 930.
162. See id.
163. See id. at 930-31.
164. See id. at 931.
165. The telex read, "A is For Apple - Ed Bradley reports on the inability of federal regulators [sic] eliminate known carcinogenic chemical sprayed on produce. (Shot in Seattle, Spokane; Minneapolis; Portland O.; Albany; Boston and Washington)" Id. at 932 (alteration in original).
166. The three-hour lead time was due only to the fact that these CBS affiliates were on the West Coast, but the program was transmitted by satellite to the affiliates at the time of the East Coast broadcast. See id. at 931. Thus, affiliates on the East Coast had no time to review the program in advance of airing. See id. at 932.
167. See id. at 931.
168. See id.
169. Id.
170. Id. at 932.
171. Id. at 931.
172. See id. at 932.
173. 475 N.Y.S.2d 233 (Sup. Ct. 1984).
174. A "contract printer" provides printing facilities and services for publishers and writers. See id. at 233.
175. See id.
176. Id.
177. Id.
178. The court further observed that the printer did not have a duty to confirm facts and verify the truth of the printed statements. See id. at 235-36.
179. Id. at 233-34. The court acknowledged, however, that a printer could be subject to liability if it "plays a knowing role in the publication of a libel, or acts in violation of the applicable standard of care." Id. at 236.
180. See id. at 236, 237.
181. See Smith v. California, 361 U.S. 147, 155 (1959); Auvil v. CBS "60 Minutes", 800 F. Supp. 928, 931-32 (E.D. Wash. 1992); Misut, 475 N.Y.S.2d at 236.
182. See Auvil, 800 F. Supp. at 931-32.
183. See Misut, 475 N.Y.S.2d at 233, 236.
184. See supra notes 87-98 and accompanying text.
185. See Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710, at *2 (N.Y. Sup. Ct. May 24, 1995); Geoffrey Moore, The 1st Amendment Is Safe at Prodigy, N.Y. TIMES, Dec. 16, 1990, § 3, at 13.
186. See Stratton, 1995 WL 323710, at *5.
187. See Philip H. Miller, Note, New Technology, Old Problem: Determining the First Amendment Status of Electronic Information Services, 61 FORDHAM L. REV. 1147, 1162-67 (1993); Note, The Message in the Medium: The First Amendment on the Information Superhighway, 107 HARV. L. REV. 1062, 1065-66 (1994).
188. See Philip H. Miller, Note, New Technology, Old Problem: Determining the First Amendment Status of Electronic Information Services, 61 FORDHAM L. REV. 1147, 1162-67 (1993); Note, The Message in the Medium: The First Amendment on the Information Superhighway, 107 HARV. L. REV. 1062, 1065-66 (1994).
189. See Miller, supra note 160, at 1170-76; Note, supra note 160, at 1070-75.
190. See Miller, supra note 160, at 1080-89; Note, supra note 160, at 1075-76, 1079-80.
191. See Miller, supra note 160, at 1147; see also Johnson, supra note 34, at 614 & n.112 ("New technologies always have created wrinkles in defamation law.").
192. See Jeffrey E. Faucette, Note, The Freedom of Speech at Risk in Cyberspace: Obscenity Doctrine and a Frightened University's Censorship of Sex on the Internet, 44 DUKE L.J. 1155, 1172 (1995) ("Network operators face a 'sliding scale' of analogous roles running from primary publisher to [distributor] to common carrier."); Miller, supra note 160, at 1200 (suggesting that liability of an on-line service is a function of its editorial control). Some commentators have argued that courts should apply graffiti principles to an on-line service when ascertaining the service's level of control over its BBS forums and assessing liability. See Counts & Martin, supra note 12, at 1098-1102. The "graffiti" cases suggest that an on-line service could be liable for third-party defamation if it had knowledge of the posting and "undertook some action to ratify the communication." Id. at 1102; see, e.g., Tacket v. General Motors Corp., 836 F.2d 1042, 1047 (7th Cir. 1987) (finding that a company could be liable for failing to remove an allegedly defamatory sign that remained on its wall for seven to eight months but affirming a denial of liability for a sign that remained on its wall for only two or three days); Heller v. Bianco, 244 P.2d 757, 759-60 (Cal. Dist. Ct. App. 1952) (concluding that a tavern owner could be liable for having knowledge of and failing to remove a libelous message written on the bathroom wall); Scott v. Hull, 259 N.E.2d 160, 162 (Ohio Ct. App. 1970) (affirming that a building owner was not liable for .a libelous statement that was written on the building's outside wall).
193. See, e.g., Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135, 139-41 (S.D.N.Y. 1991); Daniel v. Dow Jones & Co., 520 N.Y.S.2d 334, 337-38 (N.Y. Civ. Ct. 1987); see also Schlachter, supra note 27, at 116-19; Faucette, supra note 164, at 1172. A "sliding scale" analysis is appropriate considering that [a]n on-line service is a hybrid combining different communications systems. A newspaper, for instance, is not also a Yellow Pages. A cable television system is not also an electronic meeting place where people freely exchange views, although the Public Access function of a cable system approaches such a forum. A radio station is not also a repository of musical data that users search according to their interests. A phone system is not also a kiosk where people freely post messages. But an on-line service may be all of these things at once. Alben, supra note 16, at 2.
194. 520 N.Y.S.2d 334 (N.Y. Civ. Ct. 1987).
195. See id. at 337.
196. See id. at 335.
197. See id.
198. See id.
199. Id. at 337.
200. See id. at 337-38, 340.
201. 776 F. Supp. 135 (S.D.N.Y. 1991).
202. See Smith v. California, 361 U.S. 147, 152-53 (1959); supra notes 122-130 and accompanying text.
203. See Cubby, 776 F. Supp. at 139-40.
204. See id. at 140.
205. See id. at 137.
206. The term "topical forum" should be distinguished from this Note's use of the terms "BBS forum" or "newsgroup." A BBS forum is merely one feature within a specific topical forum. A newsgroup is found only on the Internet but is equivalent, in the commercial on-line service environment, to the BBS forum. See supra note 80 and accompanying text.
207. See Cubby, 776 F. Supp. at 137.
208. The Journalism Forum, like most forums on CompuServe, is operated by third parties who, under a contract with CompuServe, "'manage, review, create, delete, edit and otherwise control the contents' of the Journalism forum." Id. (quoting Affidavit of Jim Cameron). This case, however, focuses on whether CompuServe should be considered a distributor of information, not whether the third party indemnified CompuServe from liability. See id. at 139.
209. See id. at 137-38.
210. See id. at 137.
211. Id. at 139 (quoting Cianci v. New Times Publ'g Co., 639 F.2d 54, 61 (2d Cir. 1980)).
212. Id. (quoting Lerman v. Chuckleberry Publ'g, Inc., 521 F. Supp. 228, 235 (S.D.N.Y. 1981)).
213. Id. at 140.
214. Id. at 137.
215. Id. at 140.
216. Id.
217. Id. (quoting Lerman v. Flynt Distrib. Co., 745 F.2d 123, 139 (2d Cir. 1984)).
218. Id.
219. See id.; supra note 187 and accompanying text.
220. 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995).
221. See id. at *2.
222. "Money Talk" receives an estimated 12,000 to 15,000 messages per month. See Hermann, supra note 4, at 431 n.54.
223. See Stratton, 1995 WL 323710, at *1. The allegedly defamatory statements posted to Prodigy's BBS forum included the following: (a) STRATTON OAKMONT, INC. ("STRATTON"), a securities investment banking firm, and DANIEL PORUSH, STRATTON's president, committed criminal and fraudulent acts in connection with the initial public offering of stock of Solomon-Page Ltd.; (b) the Solomon-Page offering was a "major criminal fraud" and "100% criminal fraud;" (c) PORUSH was "soon to be proven criminal;" and, (d) STRATTON was a "cult of brokers who either lie for a living or get fired." Id.
224. See id.
225. See id. at *4.
226. Id.
227. Id. at *3 ("The choice of material to go into a newspaper, and the decisions made as to . . . content of the paper . . . constitute the exercise of editorial control and judgment." (citing Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241, 258 (1974))).
228. Id. In other words, by holding Prodigy to a publisher standard, the court found that Prodigy exercised "comprehensive" editorial control, even if that control was not "complete" in the sense that Prodigy was incapable of screening and reading every posting. See supra note 107.
229. Stratton, 1995 WL 323710, at *5.
230. See id.
231. Id.