Zeran v. America Online Inc

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KENNETH M. ZERAN,
Plaintiff-Appellant,
v. No. 97-1523
AMERICA ONLINE, INCORPORATED,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CA-96-1564-A)
Argued: October 2, 1997
Decided: November 12, 1997
Before WILKINSON, Chief Judge, RUSSELL, Circuit Judge, and
BOYLE, Chief United States District Judge for the
Eastern District of North Carolina, sitting by designation.
_________________________________________________________________
Affirmed by published opinion. Chief Judge Wilkinson wrote the
opinion, in which Judge Russell and Chief Judge Boyle joined.
_________________________________________________________________
COUNSEL
ARGUED: John Saul Edwards, LAW OFFICES OF JOHN S.
EDWARDS, Roanoke, Virginia; Leo Kayser, III, KAYSER & RED-
FERN, New York, New York, for Appellant. Patrick Joseph Carome,
WILMER, CUTLER & PICKERING, Washington, D.C., for Appel-
lee. ON BRIEF: John Payton, Samir Jain, WILMER, CUTLER &
PICKERING, Washington, D.C.; Randall J. Boe, AMERICA
ONLINE, INC., Dulles, Virginia, for Appellee.
_________________________________________________________________
OPINION
WILKINSON, Chief Judge:
Kenneth Zeran brought this action against America Online, Inc.
("AOL"), arguing that AOL unreasonably delayed in removing
defamatory messages posted by an unidentified third party, refused to
post retractions of those messages, and failed to screen for similar
postings thereafter. The district court granted judgment for AOL on
the grounds that the Communications Decency Act of 1996 ("CDA")
-- 47 U.S.C. § 230 -- bars Zeran's claims. Zeran appeals, arguing
that § 230 leaves intact liability for interactive computer service pro-
viders who possess notice of defamatory material posted through their
services. He also contends that § 230 does not apply here because his
claims arise from AOL's alleged negligence prior to the CDA's enact-
ment. Section 230, however, plainly immunizes computer service pro-
viders like AOL from liability for information that originates with
third parties. Furthermore, Congress clearly expressed its intent that
§ 230 apply to lawsuits, like Zeran's, instituted after the CDA's enact-
ment. Accordingly, we affirm the judgment of the district court.
I.
"The Internet is an international network of interconnected comput-
ers," currently used by approximately 40 million people worldwide.
Reno v. ACLU, 117 S. Ct. 2329, 2334 (1997). One of the many means
by which individuals access the Internet is through an interactive
computer service. These services offer not only a connection to the
Internet as a whole, but also allow their subscribers to access informa-
tion communicated and stored only on each computer service's indi-
vidual proprietary network. Id. AOL is just such an interactive
computer service. Much of the information transmitted over its net-
work originates with the company's millions of subscribers. They
may transmit information privately via electronic mail, or they may
communicate publicly by posting messages on AOL bulletin boards,
where the messages may be read by any AOL subscriber.
2
The instant case comes before us on a motion for judgment on the
pleadings, see Fed. R. Civ. P. 12(c), so we accept the facts alleged in
the complaint as true. Bruce v. Riddle, 631 F.2d 272, 273 (4th Cir.
1980). On April 25, 1995, an unidentified person posted a message
on an AOL bulletin board advertising "Naughty Oklahoma T-Shirts."
The posting described the sale of shirts featuring offensive and taste-
less slogans related to the April 19, 1995, bombing of the Alfred P.
Murrah Federal Building in Oklahoma City. Those interested in pur-
chasing the shirts were instructed to call "Ken" at Zeran's home
phone number in Seattle, Washington. As a result of this anony-
mously perpetrated prank, Zeran received a high volume of calls,
comprised primarily of angry and derogatory messages, but also
including death threats. Zeran could not change his phone number
because he relied on its availability to the public in running his busi-
ness out of his home. Later that day, Zeran called AOL and informed
a company representative of his predicament. The employee assured
Zeran that the posting would be removed from AOL's bulletin board
but explained that as a matter of policy AOL would not post a retrac-
tion. The parties dispute the date that AOL removed this original post-
ing from its bulletin board.
On April 26, the next day, an unknown person posted another mes-
sage advertising additional shirts with new tasteless slogans related to
the Oklahoma City bombing. Again, interested buyers were told to
call Zeran's phone number, to ask for "Ken," and to "please call back
if busy" due to high demand. The angry, threatening phone calls
intensified. Over the next four days, an unidentified party continued
to post messages on AOL's bulletin board, advertising additional
items including bumper stickers and key chains with still more offen-
sive slogans. During this time period, Zeran called AOL repeatedly
and was told by company representatives that the individual account
from which the messages were posted would soon be closed. Zeran
also reported his case to Seattle FBI agents. By April 30, Zeran was
receiving an abusive phone call approximately every two minutes.
Meanwhile, an announcer for Oklahoma City radio station KRXO
received a copy of the first AOL posting. On May 1, the announcer
related the message's contents on the air, attributed them to "Ken" at
Zeran's phone number, and urged the listening audience to call the
number. After this radio broadcast, Zeran was inundated with death
3
threats and other violent calls from Oklahoma City residents. Over the
next few days, Zeran talked to both KRXO and AOL representatives.
He also spoke to his local police, who subsequently surveilled his
home to protect his safety. By May 14, after an Oklahoma City news-
paper published a story exposing the shirt advertisements as a hoax
and after KRXO made an on-air apology, the number of calls to
Zeran's residence finally subsided to fifteen per day.
Zeran first filed suit on January 4, 1996, against radio station
KRXO in the United States District Court for the Western District of
Oklahoma. On April 23, 1996, he filed this separate suit against AOL
in the same court. Zeran did not bring any action against the party
who posted the offensive messages.1 After Zeran's suit against AOL
was transferred to the Eastern District of Virginia pursuant to 28
U.S.C. § 1404(a), AOL answered Zeran's complaint and interposed
47 U.S.C. § 230 as an affirmative defense. AOL then moved for judg-
ment on the pleadings pursuant to Fed. R. Civ. P. 12(c). The district
court granted AOL's motion, and Zeran filed this appeal.
II.
A.
Because § 230 was successfully advanced by AOL in the district
court as a defense to Zeran's claims, we shall briefly examine its
operation here. Zeran seeks to hold AOL liable for defamatory speech
initiated by a third party. He argued to the district court that once he
notified AOL of the unidentified third party's hoax, AOL had a duty
to remove the defamatory posting promptly, to notify its subscribers
of the message's false nature, and to effectively screen future defama-
tory material. Section 230 entered this litigation as an affirmative
defense pled by AOL. The company claimed that Congress immu-
nized interactive computer service providers from claims based on
information posted by a third party.
_________________________________________________________________
1 Zeran maintains that AOL made it impossible to identify the original
party by failing to maintain adequate records of its users. The issue of
AOL's record keeping practices, however, is not presented by this
appeal.
4
The relevant portion of § 230 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." 47 U.S.C. § 230(c)(1).2 By its plain language, § 230 creates
a federal immunity to any cause of action that would make service
providers liable for information originating with a third-party user of
the service. Specifically, § 230 precludes courts from entertaining
claims that would place a computer service provider in a publisher's
role. Thus, lawsuits seeking to hold a service provider liable for its
exercise of a publisher's traditional editorial functions -- such as
deciding whether to publish, withdraw, postpone or alter content --
are barred.
The purpose of this statutory immunity is not difficult to discern.
Congress recognized the threat that tort-based lawsuits pose to free-
dom of speech in the new and burgeoning Internet medium. The
imposition of tort liability on service providers for the communica-
tions of others represented, for Congress, simply another form of
intrusive government regulation of speech. Section 230 was enacted,
in part, to maintain the robust nature of Internet communication and,
accordingly, to keep government interference in the medium to a
minimum. In specific statutory findings, Congress recognized the
Internet and interactive computer services as offering "a forum for a
true diversity of political discourse, unique opportunities for cultural
development, and myriad avenues for intellectual activity." Id.
§ 230(a)(3). It also found that the Internet and interactive computer
services "have flourished, to the benefit of all Americans, with a mini-
_________________________________________________________________
2 Section 230 defines "interactive computer service" as "any informa-
tion service, system, or access software provider that provides or enables
computer access by multiple users to a computer server, including specif-
ically a service or system that provides access to the Internet and such
systems operated or services offered by libraries or educational institu-
tions." 47 U.S.C. § 230(e)(2). The term"information content provider"
is defined as "any person or entity that is responsible, in whole or in part,
for the creation or development of information provided through the
Internet or any other interactive computer service." Id. § 230(e)(3). The
parties do not dispute that AOL falls within the CDA's "interactive com-
puter service" definition and that the unidentified third party who posted
the offensive messages here fits the definition of an "information content
provider."
5
mum of government regulation." Id.§ 230(a)(4) (emphasis added).
Congress further stated 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).
None of this means, of course, that the original culpable party who
posts defamatory messages would escape accountability. While Con-
gress acted to keep government regulation of the Internet to a mini-
mum, it also found it to be 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 com-
puter." Id. § 230(b)(5). Congress made a policy choice, however, not
to deter harmful online speech through the separate route of imposing
tort liability on companies that serve as intermediaries for other par-
ties' potentially injurious messages.
Congress' purpose in providing the § 230 immunity was thus evi-
dent. Interactive computer services have millions of users. See Reno
v. ACLU, 117 S. Ct. at 2334 (noting that at time of district court trial,
"commercial online services had almost 12 million individual sub-
scribers"). The amount of information communicated via interactive
computer services is therefore staggering. The specter of tort liability
in an area of such prolific speech would have an obvious chilling
effect. It would be impossible for service providers to screen each of
their millions of postings for possible problems. Faced with potential
liability for each message republished by their services, interactive
computer service providers might choose to severely restrict the num-
ber and type of messages posted. Congress considered the weight of
the speech interests implicated and chose to immunize service provid-
ers to avoid any such restrictive effect.
Another important purpose of § 230 was to encourage service pro-
viders to self-regulate the dissemination of offensive material over
their services. In this respect, § 230 responded to a New York state
court decision, Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995
WL 323710 (N.Y. Sup. Ct. May 24, 1995). There, the plaintiffs sued
Prodigy -- an interactive computer service like AOL -- for defama-
tory comments made by an unidentified party on one of Prodigy's
6
bulletin boards. The court held Prodigy to the strict liability standard
normally applied to original publishers of defamatory statements,
rejecting Prodigy's claims that it should be held only to the lower
"knowledge" standard usually reserved for distributors. The court rea-
soned that Prodigy acted more like an original publisher than a dis-
tributor both because it advertised its practice of controlling content
on its service and because it actively screened and edited messages
posted on its bulletin boards.
Congress enacted § 230 to remove the disincentives to self-
regulation created by the Stratton Oakmont decision. Under that
court's holding, computer service providers who regulated the dis-
semination of offensive material on their services risked subjecting
themselves to liability, because such regulation cast the service pro-
vider in the role of a publisher. Fearing that the specter of liability
would therefore deter service providers from blocking and screening
offensive material, Congress enacted § 230's broad immunity "to
remove disincentives for the development and utilization of blocking
and filtering technologies that empower parents to restrict their chil-
dren's access to objectionable or inappropriate online material." 47
U.S.C. § 230(b)(4). In line with this purpose,§ 230 forbids the impo-
sition of publisher liability on a service provider for the exercise of
its editorial and self-regulatory functions.
B.
Zeran argues, however, that the § 230 immunity eliminates only
publisher liability, leaving distributor liability intact. Publishers can
be held liable for defamatory statements contained in their works even
absent proof that they had specific knowledge of the statement's
inclusion. W. Page Keeton et al., Prosser and Keeton on the Law of
Torts § 113, at 810 (5th ed. 1984). According to Zeran, interactive
computer service providers like AOL are normally considered instead
to be distributors, like traditional news vendors or book sellers. Dis-
tributors cannot be held liable for defamatory statements contained in
the materials they distribute unless it is proven at a minimum that they
have actual knowledge of the defamatory statements upon which lia-
bility is predicated. Id. at 811 (explaining that distributors are not lia-
ble "in the absence of proof that they knew or had reason to know of
the existence of defamatory matter contained in matter published").
7
Zeran contends that he provided AOL with sufficient notice of the
defamatory statements appearing on the company's bulletin board.
This notice is significant, says Zeran, because AOL could be held lia-
ble as a distributor only if it acquired knowledge of the defamatory
statements' existence.
Because of the difference between these two forms of liability,
Zeran contends that the term "distributor" carries a legally distinct
meaning from the term "publisher." Accordingly, he asserts that Con-
gress' use of only the term "publisher" in§ 230 indicates a purpose
to immunize service providers only from publisher liability. He
argues that distributors are left unprotected by§ 230 and, therefore,
his suit should be permitted to proceed against AOL. We disagree.
Assuming arguendo that Zeran has satisfied the requirements for
imposition of distributor liability, this theory of liability is merely a
subset, or a species, of publisher liability, and is therefore also fore-
closed by § 230.
The terms "publisher" and "distributor" derive their legal signifi-
cance from the context of defamation law. Although Zeran attempts
to artfully plead his claims as ones of negligence, they are indistin-
guishable from a garden variety defamation action. Because the publi-
cation of a statement is a necessary element in a defamation action,
only one who publishes can be subject to this form of tort liability.
Restatement (Second) of Torts § 558(b) (1977); Keeton et al., supra,§ 113, at 802. Publication does not only describe the choice by an
author to include certain information. In addition, both the negligent
communication of a defamatory statement and the failure to remove
such a statement when first communicated by another party -- each
alleged by Zeran here under a negligence label -- constitute publica-
tion. Restatement (Second) of Torts § 577; see also Tacket v. General
Motors Corp., 836 F.2d 1042, 1046-47 (7th Cir. 1987). In fact, every
repetition of a defamatory statement is considered a publication. Kee-
ton et al., supra, § 113, at 799.
In this case, AOL is legally considered to be a publisher. "[E]very
one who takes part in the publication . . . is charged with publication."
Id. Even distributors are considered to be publishers for purposes of
defamation law:
8
Those who are in the business of making their facilities
available to disseminate the writings composed, the
speeches made, and the information gathered by others may
also be regarded as participating to such an extent in making
the books, newspapers, magazines, and information avail-
able to others as to be regarded as publishers. They are
intentionally making the contents available to others, some-
times without knowing all of the contents -- including the
defamatory content -- and sometimes without any opportu-
nity to ascertain, in advance, that any defamatory matter was
to be included in the matter published.
Id. at 803. AOL falls squarely within this traditional definition of a
publisher and, therefore, is clearly protected by§ 230's immunity.
Zeran contends that decisions like Stratton Oakmont and Cubby,
Inc. v. CompuServe Inc., 776 F. Supp. 135 (S.D.N.Y. 1991), recog-
nize a legal distinction between publishers and distributors. He misap-
prehends, however, the significance of that distinction for the legal
issue we consider here. It is undoubtedly true that mere conduits, or
distributors, are subject to a different standard of liability. As
explained above, distributors must at a minimum have knowledge of
the existence of a defamatory statement as a prerequisite to liability.
But this distinction signifies only that different standards of liability
may be applied within the larger publisher category, depending on the
specific type of publisher concerned. See Keeton et al., supra, § 113,
at 799-800 (explaining that every party involved is charged with pub-
lication, although degrees of legal responsibility differ). To the extent
that decisions like Stratton and Cubby utilize the terms "publisher"
and "distributor" separately, the decisions correctly describe two dif-
ferent standards of liability. Stratton and Cubby do not, however, sug-
gest that distributors are not also a type of publisher for purposes of
defamation law.
Zeran simply attaches too much importance to the presence of the
distinct notice element in distributor liability. The simple fact of
notice surely cannot transform one from an original publisher to a dis-
tributor in the eyes of the law. To the contrary, once a computer ser-
vice provider receives notice of a potentially defamatory posting, it
is thrust into the role of a traditional publisher. The computer service
9
provider must decide whether to publish, edit, or withdraw the post-
ing. In this respect, Zeran seeks to impose liability on AOL for
assuming the role for which § 230 specifically proscribes liability --
the publisher role.
Our view that Zeran's complaint treats AOL as a publisher is rein-
forced because AOL is cast in the same position as the party who
originally posted the offensive messages. According to Zeran's logic,
AOL is legally at fault because it communicated to third parties an
allegedly defamatory statement. This is precisely the theory under
which the original poster of the offensive messages would be found
liable. If the original party is considered a publisher of the offensive
messages, Zeran certainly cannot attach liability to AOL under the
same theory without conceding that AOL too must be treated as a
publisher of the statements.
Zeran next contends that interpreting § 230 to impose liability on
service providers with knowledge of defamatory content on their ser-
vices is consistent with the statutory purposes outlined in Part IIA.
Zeran fails, however, to understand the practical implications of
notice liability in the interactive computer service context. Liability
upon notice would defeat the dual purposes advanced by § 230 of the
CDA. Like the strict liability imposed by the Stratton Oakmont court,
liability upon notice reinforces service providers' incentives to restrict
speech and abstain from self-regulation.
If computer service providers were subject to distributor liability,
they would face potential liability each time they receive notice of a
potentially defamatory statement -- from any party, concerning any
message. Each notification would require a careful yet rapid investi-
gation of the circumstances surrounding the posted information, a
legal judgment concerning the information's defamatory character,
and an on-the-spot editorial decision whether to risk liability by
allowing the continued publication of that information. Although this
might be feasible for the traditional print publisher, the sheer number
of postings on interactive computer services would create an impossi-
ble burden in the Internet context. Cf. Auvil v. CBS 60 Minutes, 800
F. Supp. 928, 931 (E.D. Wash. 1992) (recognizing that it is unrealistic
for network affiliates to "monitor incoming transmissions and exer-
cise on-the-spot discretionary calls"). Because service providers
10
would be subject to liability only for the publication of information,
and not for its removal, they would have a natural incentive simply
to remove messages upon notification, whether the contents were
defamatory or not. See Philadelphia Newspapers, Inc. v. Hepps, 475
U.S. 767, 777 (1986) (recognizing that fears of unjustified liability
produce a chilling effect antithetical to First Amendment's protection
of speech). Thus, like strict liability, liability upon notice has a chill-
ing effect on the freedom of Internet speech.
Similarly, notice-based liability would deter service providers from
regulating the dissemination of offensive material over their own ser-
vices. Any efforts by a service provider to investigate and screen
material posted on its service would only lead to notice of potentially
defamatory material more frequently and thereby create a stronger
basis for liability. Instead of subjecting themselves to further possible
lawsuits, service providers would likely eschew any attempts at self-
regulation.
More generally, notice-based liability for interactive computer ser-
vice providers would provide third parties with a no-cost means to
create the basis for future lawsuits. Whenever one was displeased
with the speech of another party conducted over an interactive com-
puter service, the offended party could simply "notify" the relevant
service provider, claiming the information to be legally defamatory.
In light of the vast amount of speech communicated through interac-
tive computer services, these notices could produce an impossible
burden for service providers, who would be faced with ceaseless
choices of suppressing controversial speech or sustaining prohibitive
liability. Because the probable effects of distributor liability on the
vigor of Internet speech and on service provider self-regulation are
directly contrary to § 230's statutory purposes, we will not assume
that Congress intended to leave liability upon notice intact.
Zeran finally contends that the interpretive canon favoring reten-
tion of common law principles unless Congress speaks directly to the
issue counsels a restrictive reading of the § 230 immunity here. See
United States v. Texas, 507 U.S. 529, 534 (1993). This interpretive
canon does not persuade us to reach a different result. Here, Congress
has indeed spoken directly to the issue by employing the legally sig-
11
nificant term "publisher," which has traditionally encompassed dis-
tributors and original publishers alike.
The decision cited by Zeran, United States v. Texas, also recog-
nized that abrogation of common law principles is appropriate when
a contrary statutory purpose is evident. Id. This is consistent with the
Court's earlier cautions against courts' application of the canon with
excessive zeal: "``The rule that statutes in derogation of the common
law are to be strictly construed does not require such an adherence to
the letter as would 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) (quoting Jamison v.
Encarnacion, 281 U.S. 635, 640 (1930)); cf. Astoria Fed. Sav. &
Loan Ass'n v. Solimino, 501 U.S. 104, 110-11 (1991) (statute need not
expressly delimit manner in which common law principle is abro-
gated). Zeran's argument flies in the face of this warning. As
explained above, interpreting § 230 to leave distributor liability in
effect would defeat the two primary purposes of the statute and would
certainly "lessen the scope plainly intended" by Congress' use of the
term "publisher."
Section 230 represents the approach of Congress to a problem of
national and international dimension. The Supreme Court underscored
this point in ACLU v. Reno, finding that the Internet allows "tens of
millions of people to communicate with one another and to access
vast amounts of information from around the world.[It] is ``a unique
and wholly new medium of worldwide human communication.'" 117
S. Ct. at 2334 (citation omitted). Application of the canon invoked by
Zeran here would significantly lessen Congress' power, derived from
the Commerce Clause, to act in a field whose international character
is apparent. While Congress allowed for the enforcement of "any
State law that is consistent with [§ 230]," 47 U.S.C. § 230(d)(3), it is
equally plain that Congress' desire to promote unfettered speech on
the Internet must supersede conflicting common law causes of action.
Section 230(d)(3) continues: "No cause of action may be brought and
no liability may be imposed under any State or local law that is incon-
sistent with this section." With respect to federal-state preemption, the
Court has advised: "[W]hen Congress has ``unmistakably . . .
ordained,' that its enactments alone are to regulate a part of com-
merce, state laws regulating that aspect of commerce must fall. The
12
result is compelled whether Congress' command is explicitly stated
in the statute's language or implicitly contained in its structure and
purpose." Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977) (cita-
tions omitted). Here, Congress' command is explicitly stated. Its exer-
cise of its commerce power is clear and counteracts the caution
counseled by the interpretive canon favoring retention of common
law principles.
III.
The CDA was signed into law and became effective on February
8, 1996. Zeran did not file his complaint until April 23, 1996. Zeran
contends that even if § 230 does bar the type of claim he brings here,
it cannot be applied retroactively to bar an action arising from AOL's
alleged misconduct prior to the CDA's enactment. We disagree. Sec-
tion 230 applies by its plain terms to complaints brought after the
CDA became effective. As noted in Part IIB, the statute provides, in
part: "No cause of action may be brought and no liability may be
imposed under any State or local law that is inconsistent with this sec-
tion." 47 U.S.C. § 230(d)(3).
Initially, it is doubtful that a retroactivity issue is even presented
here. Retroactivity concerns arise when a statute applies to conduct
predating its enactment. Section 230 does not directly regulate the
activities of interactive computer service providers like AOL. Instead,
§ 230 is addressed only to the bringing of a cause of action. Here,
Zeran did not file his complaint until over two months after § 230's
immunity became effective. Thus, the statute's application in this liti-
gation is in fact prospective. See St. Louis v. Texas Worker's Compen-
sation Comm'n, 65 F.3d 43, 46 (5th Cir. 1995) (holding "issue is not
technically one of retroactivity" when statute applies to "filing of the
complaint"), cert. denied, 116 S. Ct. 2563 (1996); Vernon v. Cas-
sadega Valley Central Sch. Dist., 49 F.3d 886, 889 (2d Cir. 1995)
(same).
Even if this were a case implicating the application of a federal
statute to pre-enactment events, the Supreme Court's Landgraf frame-
work would nevertheless require § 230's application to Zeran's
claims. Landgraf instructs us first "to determine whether Congress
has expressly prescribed the statute's proper reach." Landgraf v. USI
13
Film Prods., 511 U.S. 244, 280 (1994). This case can be resolved at
this first step. In § 230(d)(3), Congress clearly expressed its intent
that the statute apply to any complaint instituted after its effective
date, regardless of when the relevant conduct giving rise to the claims
occurred. Other circuits have interpreted similar statutory language to
clearly express Congress' intent that the relevant statutes apply to bar
new actions under statutorily specified conditions. See Wright v.
Morris, 111 F.3d 414, 418 (6th Cir. 1997) (holding language "No
action shall be brought . . . ," 42 U.S.C. § 1997e(a), to "expressly gov-
ern[ ] the bringing of new actions"), cert. denied, 1997 WL 275340(U.S. Oct. 6, 1997); Abdul-Wadood v. Nathan, 91 F.3d 1023, 1025
(7th Cir. 1996) (holding language "In no event shall a prisoner bring
a civil action or appeal a judgment . . . ," 28 U.S.C. § 1915(g), to gov-
ern the bringing of new actions or filing of new appeals).
If we were to find a directive as plain as § 230(d)(3) to be ambigu-
ous as to Congress' intent, we would be announcing a new super-
clear-statement condition for the retroactive operation of statutes.
Such a jurisprudential shift would be both unwise and contrary to the
Court's admonitions in Landgraf: "Retroactivity provisions often
serve entirely benign and legitimate purposes, whether to respond to
emergencies, to correct mistakes, to prevent circumvention of a new
statute in the interval immediately preceding its passage, or simply to
give comprehensive effect to a new law Congress considers salutary."
511 U.S. at 267-68. Here, Congress decided that free speech on the
Internet and self-regulation of offensive speech were so important that
§ 230 should be given immediate, comprehensive effect.
There finally is a significant contrast between statutes that impose
new liabilities for already-completed conduct and statutes that govern
litigants' access to courts. For example, courts often apply intervening
statutes that restrict a court's jurisdiction. See Landgraf, 511 U.S. at
274. Section 230 neither imposes any new liability on Zeran nor takes
away any rights acquired under prior law. No person has a vested
right in a nonfinal tort judgment, much less an unfiled tort claim.
Hammond v. United States, 786 F.2d 8, 12 (1st Cir. 1986). Further-
more, Zeran cannot point to any action he took in reliance on the law
prior to § 230's enactment. Because § 230 has no untoward retroac-
tive effect, even the presumption against statutory retroactivity absent
an express directive from Congress is of no help to Zeran here.
14
IV.
For the foregoing reasons, we affirm the judgment of the district
court.
AFFIRMED
15