Picking up the Pieces: Finding Unity after the Communications Decency Act Section 230 Jurisprudential Clash

• Author: Ryan French
• Position: J.D./D.C.L., 2012, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 443-485

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 Fortunemagazine.1Savage

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 1985.4He and an accomplice were to kill

Richard Braun, an Atlanta businessman whose own business

partners had hired Savage.5On 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.6A 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 Fortunemagazine,

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.9As 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.11In fact, the Soldier of

Fortunescenario 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.13It

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.14The

CDA is a formidable legal hurdle to plaintiffs who have suffered

injury via the Internet. Victims of online housing discrimination,15

cruel gossip,16and horrendously defamatory Internet profiles17are

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. See47 U.S.C. § 230(c) (2006).

15. See Chi. Lawyers’ Comm. for Civil Rights UndertheLaw, 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 mockthe Oklaho ma City bombing).

2012] COMMENT445

interpretive guidance.18Without 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.19One court might find

that as long as Savage’s ad was created without the website’s help,

the website would be immune.20Another court might find that the

website would lose its immunity if it knew about the ad’s

existence,21while yet another court might find that the website

would gain immunity only by taking steps to restrict access to the

ad.22Finally, 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 isnot nearly as much

disagreement as courts have suggested. In order to bring

consistency tothe 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 thediffering

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 bestsuited 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 alsodisc ussion infraParts 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. SeeSOLDIER OF FORTUNE

MAGAZINE, http://www.sofmag.com/ (last visited Oct. 22, 2010).

20. Seediscussion infraParts III.A–B.

21. Seediscussion infraPart III.E.

22. Seediscussion infraPart III.C.

23. Seediscussion infraPart III.D.