ARTICLES

A MOST UNCOMMON CARRIER:

ONLINE SERVICE PROVIDER IMMUNITY
AGAINST DEFAMATION CLAIMS IN
BLUMENTHAL v. DRUDGE
Joshua M. Masur*
ABSTRACT: Blumenthal v. Drudge, 992 F. Supp. 44 (D.D.C. 1998), found that the
Communications Decency Act of 1996 extended statutory immunity against a libel claim
to any online service provider that republished material, whether the republication was
automatic or volitional. This result is not mandated by the ambiguous statutory text and runs
counter to the vast body of common law distinguishing common carrier immunity from
liability for volitional republication. As the decision laments, this result is at odds with
public policies underlying libel law. This article examines the evolution of republication
liability and immunity in Internet and analogous telephone case law and proposes an
alternative reading of the statute.

CITATION: Joshua M. Masur, A Most Uncommon Carrier, Online Service Provider

Immunity Against Defamation Claims in Blumenthal v. Drudge, 40 Jurimetrics J. 217228
(2000).
Why should [America Online] be permitted to tout someone as a gossip
columnist or rumor monger who will make such rumors and gossip
instantly accessible to AOL subscribers, and then claim immunity
when that person, as might be anticipated, defames another?
If it were writing on a clean slate, this Court would agree with
plaintiffs. . . . AOL is not a passive conduit like the telephone company, a common carrier with no control and therefore no responsibility

*J.D. 1999, Columbia Law School. Mr. Masur thanks Andrew L. Shapiro, William K. Jones, and
Lance Liebman for feedback on early drafts. This article represents the views of the author only and is
not to be attributed to any client or employer of the author.

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for what is said over the telephone wires. . . . But Congress has made a
different policy choice by providing immunity even where the interactive service provider has an active, even aggressive role in making
available content prepared by others. . . .
While it appears to this Court that AOL in this case has taken
advantage of all the benefits conferred by Congress in the Communications Decency Act, and then some, without accepting any of the burdens
that Congress intended, the statutory language is clear: AOL is immune
from suit, and the Court therefore must grant its motion for summary
judgment.1

Thus did Judge Paul L. Friedman of the United States District Court for the
District of Columbia find America Online immune from civil liability in
Blumenthal v. Drudge2 for the allegedly libelous statement of one of its content
providers. The immunity provision in question, section 230(c)(1) of the Communications Decency Act, reads in pertinent part: No provider . . . of an interactive
computer service shall be treated as the publisher or speaker of any information
provided by another information content provider.3 However, section 230(c)(1)
was crafted to immunize online service providers who choose not to police the
content on their systems. That is to say, it was intended to protect acts of omission,
to ensure that service providers would incur no liability for failure to exert the full
range of their contractual power. Blumenthal, by contrast, found an act of
commission protected, a subject upon which the language is silent or at least
ambiguous.
Thus, Blumenthal may protest too much when claiming juridical impotence in
the face of legislative language and intent. As a matter of statutory interpretation
and policy, the application of section 230 is not so clear-cut. Indeed, because
immunity is an exception to the rule of common-law liability for republication, if
there is any clear result, it is the one the decision claims to find preferable but
prohibited.
Part I of this article examines the development of service-provider liability
both before and after the 1996 passage of section 230. Part II discusses the facts of
Blumenthal. Part III suggests a distinction between the treatment of volitional and
nonvolitional defendants based on the statutory language. Part IV discusses
statutory ambiguity in the apparent failure to speak to the defendant who provides
both information content and information services. Finally, Part V proposes that
section 230 should be read as consistent with the common law, immunizing
defendants based not on their status, but on their acts or omissions.

1. Blumenthal v. Drudge, 992 F. Supp. 44, 5153 (D.D.C. 1998).

2. Id.
3. 47 U.S.C. 230(c)(1) (1999).

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I. THE DEVELOPMENT OF SERVICE-PROVIDER

IMMUNITY FOR DEFAMATION
Cases involving service-provider liability for defamation have been surprisingly infrequent and of relatively narrow precedential reach.4 Blumenthal stands
alone in considering service-provider liability for a volitional act rather than a
volitional inaction, a nonvolitional act, or nonvolitional inaction.5 These distinctions are significant. The lynchpin in the development of modern defamation case
law is New York Times Co. v. Sullivan,6 in which the Supreme Court held that the
First Amendment protected defendants who took out a literally inaccurate but
substantially correct newspaper advertisement from liability for defamation. New
York Times and its progeny turn fundamentally on the questions of volition or its
absence, as embodied in the actual malice standard, which requires knowledge
of or recklessness as to the truth or falsity of the statement.7 Furthermore, actions
rather than omissions have historically been the focus of tort law, and courts have
been reluctant to find liability for failure to act.8

A. Case Law Prior to the 1996 Act

Cases on service-provider liability decided prior to the Telecommunications
Reform Act of 19969 consider New York defamation law. Before enactment of that
legislation, they were consideredwhether properly or notto demarcate the
poles of potential immunity and liability.
In Cubby, Inc. v. CompuServe, Inc.,10 the defendant online service provider
had contracted with outside companies to manage, review, create, delete, edit and
otherwise control the contents of its special interest forums.11 One of those
managers subcontracted with another company to publish electronically a daily

4. Only one decision, Zeran v. America Online, 129 F.3d 327 (4th Cir. 1997), has been rendered
by a federal appellate court. Half of the remaining cases have been rendered by trial courts applyingor
in one case, unaccountably failing to applyNew York common law. See Cubby, Inc. v. CompuServe,
Inc., 776 F. Supp. 135 (S.D.N.Y. 1991); Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710
(N.Y. Sup. Ct., May 24, 1995); Lunney v. Prodigy Servs. Co., Inc., 683 N.Y.S.2d 557 (App. Div. 1998).
5. See Robert Schmidt, Federal Court Watch: Blumenthal v. Drudge, LEGAL TIMES, Mar. 9, 1998,
at 1 (observing that [n]o federal court has ruled on whether [section 230] applies to people like Drudge,
who are paid to post content on a system.).
6. 376 U.S. 254 (1964).
7. See, e.g., Curtis Publg Co. v. Butts, 388 U.S. 130 (1967) (extending the actual malice
standard of New York Times to public figures as well as public officials); Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974) (distinguishing liability standards for general and limited purpose public figures).
8. See DOMINICK VETRI, TORT LAW AND PRACTICE 226 (1998) (The general common law rule
is that a person has no duty to act for the protection of another person unless his conduct created the risk
or there is a special relationship between the parties.).
9. Telecommunications Reform Act of 1996, Pub. L. 104-104, 110 Stat. 147 (1996) (codified in
scattered sections of 15 U.S.C. and 47 U.S.C.).
10. 776 F. Supp. 135 (S.D.N.Y. 1991).
11. Id. at 137.

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newsletter to the forum.12 When the subcontractor allegedly defamed a competitor

in the newsletter, the competitor brought claims for libel, business disparagement,
and unfair competition against the subcontractor, the contractor, and
CompuServe.13
Relying on the common law doctrine that limits the liability of a distributor for
the contents of the publications it markets, the court granted summary judgment for
CompuServe.
CompuServe has no more editorial control over [the] publication [at issue] than
does a public library, book store, or newsstand, and it would be no more feasible
for CompuServe to examine every publication it carries for potentially defamatory
statements than it would be for any other distributor to do so. First Amendment
guarantees have long been recognized as protecting distributors of publications.
. . . Obviously, the national distributor of hundreds of periodicals has no duty to
monitor each issue of every periodical it distributes. Such a rule would be an
impermissible burden on the First Amendment.14

A contrary result was reached in Stratton Oakmont, Inc. v. Prodigy Services

Co.15 When an unknown user of defendant online service providers bulletin
boards used one to accuse a penny-stock brokerage firm of criminal stock fraud,
the firm sued for libel.16 The court denied Prodigys summary judgment motion,
reasoning that Prodigys contractual right to delete a defamatory message made it
a publisher rather than a distributor.17
The court based the bulk of its analysis on negative implications and dicta
from two federal cases that found a republishing defendant immune from suit:
Cubby and Auvil v. CBS 60 Minutes.18 However, in Anderson v. New York

12. See id.

13. See id. at 138.
14. Id. at 140 (quoting Lerman v. Flynt Distrib. Co., 745 F.2d 123, 139 (2d Cir. 1984)).
15. 1995 WL 323710 (N.Y. Sup. Ct., May 24, 1995).
16. See id. at *1.
17. The case was dropped pending appeal in exchange for Prodigys apology, but the judge
refused to vacate his ruling, in part because he believed that online libel law had a real need for some
precedent. Margaret A. Jacobs, Will Promise of Silence Pass Tests in Court?, WALL ST. J., Dec. 14,
1995, at B1 (quoting Judge Ain). In an exchange redolent of preadolescent playground spats, the parties
disagreed as to whether Prodigy actually apologized. Prodigy said that it was merely sorry if any damage
was caused, and that such a statement was not an apology. To quote a spokesperson, To apologize is
taking responsibility. Sorry is saying that we can sympathize but it wasnt our responsibility. Jared
Sandberg, Securities Company that Had Sued Prodigy Services for Libel Drops Suit, WALL ST. J., Oct.
25, 1995, at B7.
Unfortunately, Stratton Oakmont illustrates the maxim that bad cases make bad law. It appears that
Prodigy had the strongest defense possible in a libel suitthe putatively defamatory statements were
true. Stratton Oakmont, now defunct, is recognized to have defrauded investors out of tens of millions
of dollars before being barred from the securities industry. Chief of Two Firms Indicted in Case Tied
to Stratton Officials, WALL ST. J., May 24, 1999, at B12. Moreover, Prodigys lawyers apparently failed
to introduce contemporaneous terms of service, allowing the judge to rely on obsolete terms that allowed
liberal content editing by the provider. See 1995 WL 323710, at *3 (citation omitted).
18. 800 F. Supp. 928 (E.D. Wash. 1992) (television network affiliate not liable for defamatory
statements made on the program 60 Minutes despite ability to exercise editorial control).

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Telephone,19 the New York Court of Appeals had held that a local telephone
company was immune from similar liability to that proposed under Stratton
Oakmont. Anderson involved an answering machine, owned by the defendant Bell
subsidiary and leased to a subscriber, that played recorded messages accusing a
Bishop of the Church of God in Christ of such misdeeds such as fathering
illegitimate children.20 After the plaintiff notified the telephone company of the
messages and their content, telephone company employees listened to them but did
not discontinue service.21
The plaintiff sued for libel, but New Yorks high court, the Court of Appeals,
determined that the company was immune because it merely provided the facilities
for a telephone call through which caller and callee communicated directly.22 The
companys failure to prevent the continued transmission of the offending message
was merely a passive act of omission.23 The court analogized the defendants lease
of the communications equipment to that of a sound amplifier or a typewriter and
denied liability absent some volitional act by the supplier making the actual
speakers speech its own.24

B. The 1996 Act and Section 230

Although Stratton Oakmont was but an unpublished summary judgment denial
that ignored clearly controlling precedent, it struck fear into online service
providers. From the outset, the decision was widely criticized as creating a
disincentive for [service providers] to monitor their services for inappropriate or
illegal conduct.25 Online service providers lobbied Congress for legislation
overruling Stratton Oakmont; this effort culminated in section 230 of the
Telecommunications Reform Act of 1996. The legislative history and context of
section 230 make apparent the intention of its drafters:
One of the specific purposes of this section is to overrule Stratton-Oakmont v.
Prodigy and any other similar decisions which have treated such providers and
users as publishers or speakers of content that is not their own because they have
restricted access to objectionable material.26

C. Post-Section 230 Case Law

19. 320 N.E.2d 647 (N.Y. App. Div. 1974).

20. See id. at 648.
21. See id.
22. See id. at 649.
23. See id.
24. See id.
25. Jeffrey P. Cunard et al., Internet Law Developments, in COMMUNICATIONS LAW 1998, at 1054
(1998).
26. H.R. CONF. REP. No. 104-458, at 194 (1996) (errata in original), quoted in Blumenthal, 992
F. Supp. at 52 n.13. As best as can be determined, there were no similar decisions finding liability for
failure to restrict access when the right to do so was reserved under contract.

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Other than Blumenthal, all post-1996 cases considering section 230 serviceprovider immunity for defamation concern anonymous or pseudonymous speech
by service users. These cases, to the degree that they rely on section 230, find no
liability for service providers in Stratton Oakmont-type situations.
In Zeran v. America Online, Inc.,27 someone impersonating the plaintiff posted
advertisements on America Online claiming to offer for sale t-shirts and other
items with slogans glorifying the bombing of the Alfred P. Murrah Federal
Building in Oklahoma City.28 The trial court found that section 230 immunity
could not be challenged once the plaintiff had conceded that defendant America
Online was an interactive computer service and the defamatory materials were
nothing but information provided by another information content provider.29
The Fourth Circuit affirmed, adding that even if the plaintiff could prove that
America Online neglected to remove the defamatory material despite actual
knowledge of it, section 230 nonetheless would immunize the provider.30
In Aquino v. Electriciti Inc.,31 the plaintiffs sued a service provider for
distributing anonymous accusations of an international conspiracy [led by the
plaintiffs] to further Satanic Ritual Abuse of children as well as kidnapping,
cannibalism, and murder.32 In a five-sentence opinion, the defendants demurrer
was sustained based on section 230 and Zeran.
Lunney v. Prodigy Services Co.33 applied the same New York common law
that bred Cubby, Stratton Oakmont, and Anderson. An unknown person masquerading as the plaintiff, a prospective Eagle Scout, sent an allegedly defamatory email to a Boy Scout leader.34 Drawing on Anderson, Lunney held that the common
law of defamation protects nonvolitional service providers acting as common
carriers. The court noted that immunity for common carriers obtains unless the
defendant has some editorial or at least participatory function in connection with
the dissemination of the defamatory material.35 However, Lunney declined to
consider section 230, holding its potential application to be merely an essentially
academic question in light of the common law outcome.36

II. THE ALLEGED LIBEL IN BLUMENTHAL v. DRUDGE

27. 958 F. Supp. 1124 (E.D. Va. 1997), affd 129 F.3d 327 (4th Cir. 1997).
28. Id. at 1126.
29. Id. at 1133.
30. See Zeran, 129 F.3d at 332-33.
31. 26 Med. L. Rep. 1032 (Cal. Super. Ct. 1997).
32. Id. at 1032.
33. 683 N.Y.S.2d 557 (App. Div. 1998), affd , No. 164, 1999 WL 1082126 (N.Y. Dec. 2, 1999).
34. Id. at 558.
35. Id. at 560 (quoting Anderson v. New York Tel. Co., 36 N.Y.2d 746, 750 (1974) (Gabrielli, J.,
concurring)).
36. Id. at 563. Lunney contains one odd line of reasoning: it assumes only grudgingly and for the
sake of argument that a statement of fact to the effect that the plaintiff is a bully who has threatened to
sodomize a scout leaders sons would be defamatory. Id. at 560. Otherwise, however, the case is a fine
exposition of the common law of defamation. Lunney is further discussed infra Part V.B.

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Late in the spring of 1997, America Online (AOL) contracted with Matt
Drudge to redistribute his existing gossip column as content on its online service
in exchange for a $3,000 flat monthly royalty payment, his sole source of
income.37 Under the licensing agreement, AOL reserved a limited right to edit
out content that it reasonably determine[d] to violate [its] then standard terms of
service.38 Drudge continued to distribute each edition of the Drudge Report by
placing it on his website39 and by e-mailing it to a list of subscribers.40 In addition,
he e-mailed each new edition to AOL, where it was posted electronically.41
On August 10, 1997, Drudge wrote and transmitted [an] edition of the Drudge
Report that contained [an] alleged defamatory statement about [Sidney and
Jacqueline Jordan Blumenthal].42 That column alleged, based on an anonymous
influential republican [sic] source, that New White House recruit Sidney
Blumenthal has a spousal abuse past that has been effectively covered up.43
By the following day, Drudge retracted the column via a special edition on
the website and via e-mail to his subscribers, and made a public apology.44
However, it was not until early the following morning that Drudge e-mailed the
retraction to America Online.45 The retraction was presumably posted on America
Online later that day.

III. OTHERNESS OF SERVICE PROVIDERS

UNDER SECTION 230
Section 230 provides, in pertinent part, that: No provider . . . of an interactive
computer service shall be treated as the publisher or speaker of any information
provided by another information content provider.46 Thus, in considering whether
a defendant receives common carrier immunity from defamation liability under
section 230, two questions must be asked. The answer to the first question

37. Blumenthal, 992 F. Supp. at 47.

38. Id. at 48 (quoting Brief for AOL at 7).
39. Matt Drudge, The Drudge Report (modified daily) <http://www.drudgereport.com>.
40. See Blumenthal, 992 F. Supp. at 47.
41. See id. In computer bulletin-board and online-service parlance, posting is the act of making
information available to subscribers or other users by placing it at a single location accessible to viewers.
Whether any AOL employee had an opportunity to review it prior to posting is unclear from the
decision. See id. at 4648.
42. Id. Blumenthal later was subpoenaed by the grand jury Independent Counsel investigating
President Clinton. Drudge was first to break the news of the Lewinsky scandal. His legal defense fund
was established by the neoconservative David Horowitz, whom Blumenthal had harshly criticized in
print. See Schmidt, supra note 5, at 1.
43. Blumenthal, 992 F. Supp. at 46. This allegation purportedly was supported by court records.
Id. Yet, it appears that Drudge never examined these records. See id.
44. See id. at 48. Although the opinion does not state when the apology was made, it cites a story
appearing in the August 11, 1997 edition of the Washington Post. See id. Newspaper deadlines being
what they are, Drudge would have had to retract within 24 hours of the initial publication.
45. See id.
46. 47 U.S.C. 230(c)(1) (1999).

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whether the defendant is a provider or user of an interactive computer

serviceis indisputable: America Online is a provider. The answer to the second
questionwhether the defamatory statement was provided by another information provideris far more difficult. Was the libel provided solely by Drudge or
does America Onlines volitional activity make it a provider of the content, thereby
denying it immunity? As one commentator noted,
[Section 230] leaves unanswered the question of whether an [online service
provider] should ever be deemed to have exercised sufficient editorial control
(e.g., by way of selecting, editing, reviewing or commissioning the content) such
that it is deemed the publisher of information posted on its website or online
service (i.e., the information is not provided by another).47

The court must have decided that Drudge alone was the provider of the
defamatory falsehood, but its clearest statement on the subject occurs in a footnote,
which observes that the Blumenthals [did] not identify any evidence to support
their conclusory assertion that there are genuine issues of fact as to whether Drudge
was an employee or agent of AOL.48 Yet, the opinion explicitly acknowledges the
existence of such evidence:
Drudge was not just an anonymous person who sent a message over the Internet
through AOL. He is a person with whom AOL contracted, whom AOL paid
$3,000 a month$36,000 a year, Drudges sole, consistent source of incomeand whom AOL promoted to its subscribers and potential subscribers as
a reason to subscribe to AOL.49

The record thus clearly establishes a dispute as to Drudges otherness and

independence from AOL sufficient to overcome summary judgment. That AOL
arguably played the roles of both a passive service provider and an active
content provider should have led the court to analyze the application of section
230 to a defendant who does not fit neatly into one box or the other.

IV. THE CONUNDRUM OF THE

MULTIPLE-STATUS DEFENDANT
While section 230 may immunize a provider or user of an interactive
computer service, it clearly does not immunize an information content
provider.50 It is strangely silent, however, on how to treat a defendant who is, like
America Online, both a service and content providerthat is, when an entity is, in
different contexts, both an immune common carrier of traffic without discrimination as to content, and a liable authorial, editorial, broadcasting, or publishing entity
that affirmatively publicizes information.51

47. Cunard, supra note 25.

48. Blumenthal, 992 F. Supp. at 50 n.9.
49. Id. at 51.
50. 47 U.S.C. 230(c)(1) (1999).
51. See generally ITHIEL DE SOLA POOL, TECHNOLOGIES OF FREEDOM (1983).

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Blumenthal implicitly holds that [n]o provider or user means that being a
provider is determinative: an access software provider or information content
provider that is also an interactive computer service provider receives pervasive
immunity for all its activities. But examining relevant hypotheticals calls this
rationale into question. If AOL were to contract with a provider called Hardcore
Pix of Kids by Kids for Kidsa variety of content that is far more relevant to the
provisions of section 230s parent, the Communications Decency Act52under the
same terms as Drudge, would a court have any qualms over applying vicarious
liability? Similarly, if the New York Times were to offer dial-in Internet access,
would it suddenly be able to avoid liability for its advertisers statements, of the
variety that it has faced since its inception as a printed newspaper?53
Even more damning of this approach is the apparent preference it would create
for otherwise interchangeable business decisions. For instance, what if AOL were
to reorganize, dividing its content and service provision functions into separate
subsidiaries, AOLcontent.com and AOLaccess.com? Drudge, having contracted
with the content subsidiary, libels Blumenthal. Blumenthal then sues
AOLcontent.com, rather than the parent company. It seems clear that section 230
would fail to immunize AOLcontent.com by dint of its relationship with
AOLaccess.com. It seems equally clear that the mere fortuity that the two functions
are combined in a single entity should not foreclose liability. To find otherwise
effectively encourages any potential libel defendant to set up some form of online
service to avail itself of this putative contagious immunity.

V. AN ALTERNATIVE TO THE BLUMENTHAL

RULE: FUNCTION OVER STATUS
There is, fortunately, an approach to multiple-status defendant liability that
does no violence to the statutory language and dovetails with the common law.
America Online is not, after all, a defendant for its actions as an interactive
computer service provider. Thousands of users had received Drudges libel by email or the Web through service providers other than AOL. The Blumenthals
named AOL because the harm alleged was not merely providing access to content,
but it was providing that content itself. In other words, AOL was brought before
the court as a publishing entity, rather than as a common carrier.

A. Reading the Statutory Definitions of Content

and Service Providers

52. Communications Decency Act of 1996, 47 U.S.C. 223 (1999). See also Reno v. American
Civil Liberties Union, 117 S. Ct. 2329, 2351 (1997) (overturning the CDAs provisions restricting
indecent Internet content in violation of First Amendment protections).
53. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (concerning liability of a
newspaper defendant for allegedly libelous statements in a paid advertisement in which it played no
editorial role).

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A comparison of the pertinent statutory definitions is enlightening. A service

provider provides or enables computer access by multiple users to a computer
server, including specifically a service or system that provides access to the
Internet.54 In contrast, a content provider is responsible, in whole or in part, for
the creation or development of information provided through the Internet or any
other interactive computer service.55
As noted above, the gravamen of the accusation is not that America Online
provided access to the Internet, but that it provided defamatory information. In not
viewing America Online as a content provider, Blumenthal effectively excises
responsible . . . for from the statute, treating the definition of a content provider
as limited to one who in whole or in part, . . . creat[es] or develop[s] information
provided through the Internet. Under a full reading of the statutory language, the
question is whether America Online is responsible, in whole or in part, for the
creation or development of Drudges libel. Here, responsible connotes
causation. If AOL in whole or in part caused the publication, then it is a provider
of the content.

B. The Common Law and Multiple-Status Defendants

Like much else in Internet law, the multiple-status conundrum did not arise
with the invention of the packet-switched network. With the advent of common
carriage as a legal concept came the need to determine the limits of the immunity
it afforded. The common law rule is clear: carrier immunity is functional, not
pervasive, and does not extend to the carriers own speech or that in which it plays
some volitional role.
Lunney places service-provider liability squarely in the common law tradition
of telegraph and telephone companies. Drawing on the New York Court of
Appeals decision in Anderson and its antecedents, Lunney finds common law
qualified immunity dating back to the days of the telegraph.56 The common law
states that a telecommunications company can be considered a publisher of those
messages in whose transmission it actually participates. It does not hold that such
a company, if it were to participate in the formulation of the text of one or two
messages, would thereupon expose itself to liability based on the text contained
in the millions of other messages in whose transmission it did not participate. . . .
What matters is [whether] there is . . . proof that any such control was exercised
in connection with the transmission of the messages complained of by the
plaintiff.57

54. 47 U.S.C. 230(f)(2) (1999).

55. Id. 230(f)(3) (emphasis added).
56. See Lunney v. Prodigy Servs. Co, 683 N.Y.S.2d 557, 561 (App. Div. 1998) (citing Anderson
v. New York Tel., 320 N.E.2d 647, 647 (N.Y. App. Div. 1974)).
57. Id. at 562 (citing Anderson, 320 N.E.2d at 647).

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Section 230 was intended to overrule Stratton Oakmont. Since that case was
an inaccurate statement of the common law, we must ask what the statutory
modification left intact. The Supreme Court has reaffirmed time and time again the
longstanding . . . principle that [s]tatutes which invade the common law . . . are
to be read with a presumption favoring the retention of long-established and
familiar principles, except when a statutory purpose to the contrary is evident.58
While the common law nonderogation canon has rightly been subjected to scrutiny
due to its frequent tension with the canon requiring broad interpretation of remedial
statutes,59 it remains a valid interpretative tool.60
When a statute is ambiguous or silent, yet threatens to wreak fundamental
changes on well-established and fundamental common law rules, application of the
canon is mandated.61 On one hand, the language of the statute itself is silent about
how to resolve a defendants status conflicts. On the other hand, the legislative
history indicates clearly that the statutory purpose is only to overrule . . . decisions
which have treated . . . providers and users as publishers or speakers of content that
is not their own because they have restricted access to objectionable material,62
not to immunize them when they actively distribute that material. Section 230 thus
cries out for application of the canon, and its failure . . . to speak to a matter [that
is] fundamental requires a narrow construction.63
Functional line-drawing appears to be the only fair, effective, and accurate
manner to interpret the statute. Differentiating a common carrier acting as such
from one that acts as a republisher provides immunity where appropriate, yet
maintains liability where immunity is inappropriate. Such an interpretation would
maintain the clear common law standards for republication liability where it
remains unchallenged, yet negate the dubious precedentStratton Oakmontat
which section 230 was squarely directed.

58. United States v. Texas, 507 U.S. 529, 534 (1993) (quoting Isbrandtsen Co. v. Johnson, 343
U.S. 779, 783 (1952)).
59. The most famous critique is that of Llewellyn, who contrasted the canonical
thrustStatutes in derogation of the common law will not be extended by constructionwith an
equivalent parrySuch acts will be liberally construed if their nature is remedial. Karl N.
Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons about How Statutes
Are to Be Construed, 3 VAND. L. REV. 395, 401 (1950).
60. See, e.g., United States v. Bestfoods, 524 U.S. 51, 63 (1998) ([T]he failure of the statute to
speak to a matter as fundamental as the liability implications of corporate ownership demands
application of the rule that [i]n order to abrogate a common-law principle, the statute must speak
directly to the question addressed by the common law.) (quoting United States v. Texas, 507 U.S. at
534).
61. See id.
62. H.R. CONF. REP. No. 104-458, at 194 (1996) (emphasis added), quoted in Blumenthal, 992 F.
Supp. at 52 n.13.
63. Bestfoods, 524 U.S. at 63.

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Blumenthal holds that so long as the content in question was initially prepared
by a third party, a service provider has absolute immunity under section 230,
notwithstanding its active role in the republication at issue. There is no other way
to read the case, for the undisputed fact is that AOL posted Drudges defamatory
material on its service. At common law, that active republication would suffice to
make AOL liable, for a service provider may be held vicariously liable for the tort
of an independent contractor if it ha[s] taken an affirmative, active part in its
commission.64 Under the Blumenthal analysis, liability fails.
Should Blumenthals interpretation of section 230 be followed and an entitys
volitional publications be immunized merely because the entity provides online
service, the effect could cripple libel law in the electronic age.65 Those who are
concerned about the ability of individuals to continue to redress invasions of their
privacy and dignity in the information age would do well to wish the Blumenthal
rule a rapid demise.

64. Cubby, 776 F. Supp. at 143 (applying New York law, and citing Ramos v. State, 34 A.D.2d
1056, 1056 (N.Y. App. Div. 1970)).
65. This is not an abstract and diffuse threat. One neutral outline on the subject squibs the case as
holding that [t]he CDA provides immunity to an interactive computer service provider even where the
provider has entered into a licensing agreement with the third party that posted the allegedly defamatory
material and where the provider actively marketed the third partys postings. John B. McCrory et al.,
Constitutional Privilege in Libel Law, in COMMUNICATIONS LAW 1998 (1998) (emphasis added). Should
such a reading become the standard for such cases, the distinction between the immune common carrier
and the liable republisher will be eviscerated, to the detriment of those who attempt to remedy invasions
of their privacy through the dignitary torts.

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