Zeran v. America Online, Inc.

• Decision Date: 21 March 1997
• Docket Number: Civil Action No. 1:96cv1564.
• Parties: Kenneth M. ZERAN, Plaintiff, v. AMERICA ONLINE, INC., Defendant.
• Court: U.S. District Court — Eastern District of Virginia

958 F.Supp. 1124

Kenneth M. ZERAN, Plaintiff, v. AMERICA ONLINE, INC., Defendant.

Civil Action No. 1:96cv1564.

United States District Court, E.D. Virginia, Alexandria Division.

March 21, 1997.

COPYRIGHT MATERIAL OMITTED

John S. Edwards, Roanoke, VA, Leo Kayser, III, Kayser & Redfern, L.L.P., New York City, James A. Ikard, Abel, Musser Sokolosky Mares Haubrich Burch & Kouri, Oklahoma City, OK, for Plaintiff.

Sara Needleman Kline, Patrick J. Carome, John Payton, Samir Jain, Wilmer, Cutler & Pickering, Washington, DC, Eric J. Groves, Groves & Tague, Oklahoma City, OK, Randall J. Boe, Elizabeth DeGrzia Blumenfeld, America Online, Inc., Dulles, VA, for Defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

Plaintiff Kenneth M. Zeran ("Zeran") was the victim of a malicious hoax perpetrated via the Internet¹ services of defendant America Online, Inc. ("AOL"). An unknown person or persons, acting without Zeran's knowledge or authority, affixed Zeran's name and telephone number to a series of notices on AOL's electronic "bulletin board" advertising t-shirts and other items with slogans glorifying the bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma in which 168 people were killed. Predictably, Zeran received numerous disturbing and threatening telephone calls from people outraged with the posted notice. He now sues, claiming AOL was negligent in allowing these notices to remain and reappear on AOL's "bulletin board" despite having received notice and complaints from Zeran following the appearance of the first advertisement.

AOL seeks a threshold dismissal of the claim, pursuant to Rule 12(c), Fed.R.Civ.P., on the basis of the immunity that the Communications Decency Act of 1996 ("the CDA"), confers on Internet providers with respect to the information appearing on their services from third party sources. Zeran responds by asserting that the CDA does not bar his claim, or, in the alternative, that it is inapplicable to his claim. Thus, the questions presented are:

(1) whether the CDA preempts a state law negligence claim against an interactive computer service provider for that provider's allegedly careless dissemination of defamatory statements; and (2) whether the CDA applies to causes of action brought after its effective date, but arising out of events occurring before that date.

I.²

AOL's interactive computer services provide a variety of methods to transmit information, including both private communications such as electronic mail, and public communications. One means of public communication is an AOL "bulletin board", which allows AOL subscribers to post messages for review by AOL's other subscribers. At 2:54 p.m. on April 25, 1995, a notice appeared on AOL's bulletin board authored by an unknown person or persons identified only as "Ken ZZ03" and titled "Naughty Oklahoma T-Shirts". The notice advertised t-shirts with vulgar and offensive slogans related to the Oklahoma City tragedy.³ Readers were invited to call "Ken", Zeran's first name, at Zeran's telephone number. This posting was made without Zeran's knowledge or authority and it is undisputed that he has never been involved in any way with the sale of the advertised t-shirts. Indeed, Zeran has never subscribed to AOL's Internet services.

This posting of the bogus notice on AOL's bulletin board, an act within the capacity of even novice Internet users, had its intended pernicious effect. Zeran was inundated with calls, most of which were derogatory and some of which included death threats and intimidation. On April 25, 1995, the day the notice first appeared, Zeran also received a call from a reporter investigating the advertisement of the tasteless t-shirts. Zeran informed the reporter that he was neither responsible for, nor associated with, the advertisement, and that he planned to contact AOL to demand prompt removal of the notice and a retraction. Zeran did precisely this that same day, and an AOL representative assured him that the offending notice would be removed. As a matter of policy, however, AOL declined to post a retraction on its network. To his dismay, Zeran continued to be inundated with offensive and threatening telephone calls. Unable to suspend or change his telephone number due to business necessity,⁴ Zeran was forced to tolerate the harassment and threats occasioned by the hoax.

It appears that while the first notice was deleted from AOL by April 26, 1995, a new notice appeared on the network that same date under a slightly modified identifier of "Ken ZZ033". This second notice declared that some t-shirts from the prior day's notice had "SOLD OUT", and announced that several new slogans were now available.⁵ The second notice also announced that one dollar from every sale would be donated to the victims of the bombing. And, as with the first notice, this notice ended by listing Zeran's first name and telephone number.

Zeran learned of the second notice when he received a telephone call on April 26, 1995, from a reporter who faxed him a printed copy of the April 26 AOL posting. Again the barrage of threatening and angry phone calls began. And Zeran once again called AOL to demand that AOL delete the notice and take steps to block further bogus messages using his name and phone number. In response, an AOL operator advised him that steps were being taken to delete the notice and terminate the account that was posting the notices. The operator also suggested to Zeran that he call the police and report this incident. Zeran accepted this suggestion and called the FBI in Seattle to report the situation. Despite AOL's assurance that the notice would be promptly deleted, various similarly offensive notices continued to appear through May 1, 1995. These notices, like those posted earlier, purported to be authored by "Ken Z033" and advertised offensive Oklahoma City bombing paraphernalia, including bumper stickers, key chains and t-shirts, and even computer software and hardware packages.

Zeran claims that in the final days of April he received a flood of abusive telephone calls, one approximately every two minutes. To make matters worse, a copy of the April 25 notice was brought to the attention of Mark Shannon, a broadcaster at radio station KRXO in Oklahoma City. On May 1, 1995, Shannon read the slogans from the notice on the air, and encouraged listeners to call "Ken" at Zeran's telephone number to register their disgust and disapproval. This predictably resulted in yet another cascade of threatening, intimidating, any angry telephone calls to Zeran. So threatening and abusive were some callers that local police kept Zeran's house under protective surveillance. Although an Oklahoma City newspaper ran a story exposing the t-shirt advertisements as a hoax and the radio station broadcast an apology,⁶ this brought Zeran little relief. He received some apologies and offers of assistance from earlier callers, but the deluge of threatening and abusive telephone calls persisted. Not until May 15, 1995, did the threatening and abusive telephone calls subside to approximately fifteen per day.

Zeran filed suit on January 4, 1996, against radio station KRXO in the United States District Court for the Western District of Oklahoma. In April 1996, he filed this separate action against AOL in the same court, alleging that AOL was negligent in failing to respond adequately to the bogus notices on its bulletin board after being made aware of their malicious and fraudulent nature. In response, AOL filed a motion to dismiss for failure to state a claim, pursuant to Rule 12(b)(6), Fed.R.Civ.P., or, in the alternative, to transfer the action, pursuant to 28 U.S.C. § 1404(a), from Oklahoma to this district, where AOL maintains its headquarters. By Order dated October 16, 1996, the United States District Court for the Western District of Oklahoma granted the motion to transfer, but deferred the motion to dismiss, stating that the issue of whether the complaint states a claim "should be resolved by the transferee forum." On December 13, 1996, AOL answered Zeran's complaint, and now withdraws its motion to dismiss in favor of the instant motion for judgment on the pleadings, pursuant to Rule 12(c), Fed. R.Civ.P.

II.

Judgment on the pleadings, pursuant to Rule 12(c), Fed.R.Civ.P., authorizes resolution of a matter where no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. See Republic Ins. Co. v. Culbertson, 717 F.Supp. 415, 418 (E.D.Va.1989). In evaluating a Rule 12(c) motion, the pleadings are viewed in the light most favorable to the non-moving party, and all reasonable inferences are drawn in favor of that party. Madonna v. United States, 878 F.2d 62, 65 (2nd Cir.1989); see also Bruce v. Riddle, 631 F.2d 272, 274 (4th Cir.1980). A Rule 12(c) dismissal is warranted where the pleadings, construed favorably to the non-movant, make clear that a "plaintiff could prove no set of facts in support of his claim which would entitled him to relief." Bruce, 631 F.2d at 274. Thus, AOL contends that even assuming the truth of Zeran's pleadings and viewing those pleadings in the light most favorable to him, Zeran cannot recover from AOL.

III.

Zeran sues AOL for negligence, under the theory that distributors of information are liable for the distribution of material which they knew or should have known was of a defamatory character. See Cubby, Inc. v. CompuServe Inc., 776 F.Supp. 135, 141 (S.D.N.Y.1991) (holding that defendant could not be liable for distributing defamatory statements unless it knew or had reason to know of statements).⁷ AOL does not contend for the purposes of this motion that Zeran has not alleged the elements of distributor liability. Instead, AOL contends that this state tort action is preempted by the enactment of the CDA.

The CDA was signed into law and became effective on February 8, 1996. Section 230 of the CDA, titled "Protection for private blocking and...