Picking up the Pieces: Finding Unity after the
Communications Decency Act Section 230
Jurisprudential Clash
I. INTRODUCTION: TRADITIONAL LIABILITY MEETS THE INTERNET
In January 1985, Michael Savage submitted a personal service
classified advertisement to Soldier of Fortune magazine.1 Savage
was a young Vietnam veteran seeking employment as a bodyguard,
courier, or mercenary—jobs that could utilize his “special skills.”2
The overwhelming majority of the 30 to 40 weekly phone calls he
received were solicitations for his participation in criminal
activity.3 Succumbing to the lucrative nature of these jobs, Savage
accepted one in August 1985.4 He and an accomplice were to kill
Richard Braun, an Atlanta businessman whose own business
partners had hired Savage.5 On August 26, 1985, as Braun was
driving down the driveway of his home with his 16-year-old son,
Savage’s accomplice stepped in front of Braun’s car and
repeatedly fired his pistol into the car.6 A wounded Braun rolled
out of his vehicle onto the ground, where Savage’s partner shot
him twice in the head.7
Braun’s sons brought suit against Soldier of Fortune magazine,
alleging its negligence in publishing Savage’s “gun for hire” ad.8
The Eleventh Circuit affirmed the finding that Savage’s ad should
have alerted a reasonably prudent publisher to the risk that Savage
was soliciting illicit jobs.9 As the publisher of Savage’s ad, the
magazine was liable for $2 million in damages for the wrongful
death of Richard Braun.10
Twenty-five years later, murder remains a danger in every U.S.
city, and the Savage scenario is not unrealistic. The United States
has embraced the Internet revolution, with its citizens quickly
adapting their businesses and social lives to the opportunities of
Copyright 2012, by RYAN FRENCH.
1. Braun v. Soldier of Fortune Magazine, Inc., 968 F.2d 1110, 1112 (11th
Cir. 1992).
2. Id. (“GUN FOR HIRE: 37 year old professional mercenary desires jobs.
Vietnam Veteran. Discrete [sic] and very private. Body guard, courier, and other
special skills. All jobs considered. [contact information].”).
3. Id.
4. Id.
5. Id.
6. Id.
7. Id.
8. Id.
9. Id. at 1122.
10. Id. at 1114.
444 LOUISIANA LAW REVIEW [Vol. 72
cyberspace. At least one tech-savvy Savage imitator has already
offered his mercenary services online.11 In fact, the Soldier of
Fortune scenario could occur almost identically on the Internet
today, but with one important difference: the murder victim’s
family would probably recover nothing from the website. As long
as the website did not help create the ad, it would be completely
protected from liability by the Communications Decency Act
(“CDA”).12
The CDA is an unyielding federal statute that protects websites
from liability for anything third parties create or post online.13 It
contains one of the most powerful legal immunities available—a
complete protection for any content placed on a website by a third
party, regardless of the website’s awareness of the content.14 The
CDA is a formidable legal hurdle to plaintiffs who have suffered
injury via the Internet. Victims of online housing discrimination,15
cruel gossip,16 and horrendously defamatory Internet profiles17 are
all equally unable to sue the websites that host the offending
content.
However, there are many who question the far reach of the
CDA’s protections. These extreme scenarios seem to spout
injustice; but not all is as it seems. The immunity provided by the
statute’s modest four sentences has inspired volumes of
11. In 2008, the disgruntled girlfriend of an Irish millionaire was sentenced
to six years in prison after arranging for the “accidental death” of her lover and
his two sons. Although she stumbled upon a willing assassin through a “Hitmen
for Hire” website, the plot was foiled. Henry McDonald, ‘Caring, Loving and a
Decent Lady’—Millionaire Pleads for Woman who Sent Hitman to Kill Him,
THE GUARDIAN (U.K.), Nov. 4, 2008, http://www.guardian.co.uk/world/2008/
nov/04/sharon-collins-pj-howard-hitman.
12. Or so the overwhelming majority of courts have suggested. See, e.g.,
Fair Hous. Council of San Fernando Valley v. Roommates.com, LLC, 521 F.3d
1157, 1166 (9th Cir. 2008) (granting immunity if a website “does not create or
develop the information . . . .”) (quotations and brackets omitted).
13. 47 U.S.C. § 230 (2006).
14. See 47 U.S.C. § 230(c) (2006).
15. See Chi. Lawyers’ Comm. for Civil Rights Under the Law, Inc. v.
Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008) (granting classified ad website
immunity from liability for discriminatory comments of its users who were
seeking roommates with certain sexual, racial, or religious qualities).
16. See Sunny Hostin, Online Campus Gossips Won’t Show Their Faces,
CNN.COM (Mar. 17, 2008), http://articles.cnn.com/2008-03-17/justice/sunny.
juicy_1_web-site-posts-page-six?_s=PM:CRIME (discussing the inability of
victims to recover against gossip websites that allow anyone to anonymously
post rumors about anyone else).
17. See, e.g., Zeran v. AOL, Inc., 129 F.3d 327 (4th Cir. 1997) (granting
website immunity for a fake profile that was opened on the website under
someone else’s identity to mock the Oklaho ma City bombing).
2012] COMMENT 445
interpretive guidance.18 Without any Supreme Court decision to
guide the federal circuits, the current CDA jurisprudence is an
amalgamation of interpretive strategies and statutory approaches
that appear to be hopelessly intertwined. If Savage were to post his
advertisement online today on Soldieroffortune.com (“SOF.com”),
the website’s liability might be different depending on which
interpretative approach the court applied.19 One court might find
that as long as Savage’s ad was created without the website’s help,
the website would be immune.20 Another court might find that the
website would lose its immunity if it knew about the ad’s
existence,21 while yet another court might find that the website
would gain immunity only by taking steps to restrict access to the
ad.22 Finally, another court might find that even if the website
helped Savage create the ad, it could still gain immunity if it took
steps to restrict access to it.23
Chiefly, this Comment posits that there is indeed one superior
interpretation of the CDA, and that there is not nearly as much
disagreement as courts have suggested. In order to bring
consistency to the jurisprudence, courts must not only accept this
approach, but also actively discard the remnants of failed
approaches. Part II.A of this Comment lays the foundation of the
CDA’s congressional development. Part II.B describes the
jurisprudential development of the statute, with particular attention
to three of the most prominent federal circuit cases that have
interpreted it. In Part III, this Comment analyzes the differing
approaches to the CDA—both the most widely accepted and the
less prominent approaches. In Part IV, this Comment posits that a
unified Zeran–publisher approach is best suited for adoption by all
of the courts. Part IV also challenges those particular courts that
have pioneered the jurisprudence to refine their methodology,
renounce misleading reasoning, and finally bring harmony to CDA
interpretation and application.
18. See, e.g., Barrett v. Rosenthal, 146 P.3d 510 (Cal. 2006) (overturning
the state appellate court’s decision to adopt a different interpretation of the
CDA); see also disc ussion infra Parts III–IV.
19. Where SOF.com is used in this Comment, the situations and web
address are merely hypothetical. There is no evidence that such ads are placed
on Soldier of Fortune’s website, and it appears that the website does not even
permit classified ads to be displayed online. See SOLDIER OF FORTUNE
MAGAZINE, http://www.sofmag.com/ (last visited Oct. 22, 2010).
20. See discussion infra Parts III.A–B.
21. See discussion infra Part III.E.
22. See discussion infra Part III.C.
23. See discussion infra Part III.D.