PUBLISHED
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE FOURTH CIRCUIT
`
`KENNETH M. ZERAN,
`Plaintiff-Appellant,
`
`v.
`
`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
`
`No. 97-1523
`
`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
`
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`
`

`
`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
`
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`
`

`
`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
`
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`
`

`
`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.
`