The Case of the Tasteless T-Shirts That Created the Internet As We Know It

The Case of the Tasteless T-Shirts That Created the Internet As We Know It

David Kalat

How Trolling and a New Law in the Mid-1990s Changed the Internet

The story of the internet is in no small part a story of trolls—angry, anonymous users exploiting the power of networked resources to cause others harm.

In the 1990s, a troll known as Ken ZZ03 left an indelible mark, and a resulting lawsuit is arguably the most important court case in the history of the Information Age. The effects of Ken ZZ03’s actions are still being felt.

Visit Oklahoma... It’s a BLAST

On April 19, 1995, a domestic terrorist attack killed 168 people at the Alfred P. Murrah Federal Building in Oklahoma City. Six days after what was then the deadliest terrorist attack in US history, Ken ZZ03 posted fake advertisements on America Online for T-shirts displaying slogans like Visit Oklahoma... It’s a BLAST and Finally, a daycare center that keeps the kids quiet—Oklahoma City 1995.

The ads listed the home telephone number of Seattle artist Kenneth Zeran, with the exhortation to “ask for Ken.” But Zeran had nothing to do with the shirts, and why he was targeted remains a mystery.

Significantly for history, but unfortunately for Zeran, someone forwarded a copy of one of the ads to Oklahoma City radio host Mark Shannon. Outraged, Shannon urged listeners to call the listed number to shame its “sick” author. Zeran, bewildered, suffered through a barrage of furious calls but eventually pieced enough together to bring a federal lawsuit against AOL for defamation.

Upside-down incentives

Ken ZZ03 wasn’t the only troll stirring up problems in the mid-1990s.

In 1994, a troll using a stolen identity posted to Prodigy’s “Money Talk” online bulletin board claiming that Stratton Oakmont, a Long Island securities firm, was a “cult of brokers who either lie for a living or get fired.” Unable to even identify the original anonymous poster, Stratton Oakmont sued Prodigy for defamation.

The case forced a debate on precedent. For decades, courts had recognized a distinction between publishers and distributors. Publishers, because they exercised editorial control, could be liable for defamatory or otherwise actionable content. But mere distributors, unable to police the content of everything they sold, were generally shielded unless they had cause to be aware. But this distinction created some unintended consequences.

In the case against Stratton Oakmont, Prodigy’s undoing actually stemmed from the systems the internet provider had in place to filter out pornography or offensive language. By distinguishing itself as the “family friendly” internet provider, Prodigy became, in the eyes of the New York Supreme Court, enough like a publisher to be liable for the defamatory content posted by a third party.

And the immediate effect of Prodigy’s loss was to terrify internet-based companies into abandoning any kind of content moderation, for fear of being sued for what they might fail to catch.

Washington steps in

The ruling caught the alarmed attention of lawmakers on Capitol Hill—notably Representatives Christopher Cox (R-Calif.) and Ron Wyden (D-Ore.). In a bit of bipartisan cooperation that seems quaint by 2019 standards, the duo set out to find ways to encourage technology companies to censor themselves. Cox and Wyden knew that technology companies were unlikely to exercise editorial influence, post-Prodigy, without federal action.

Cox and Wyden’s efforts led to the passage of Section 230 of the Communications Decency Act in 1996. The law ensured that “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.”

This brings us back to Ken Zeran, who filed suit against AOL in 1997 over the trolling he received after Oklahoma City. In the first legal test of the new law, Zeran lost in the US District Court for the Eastern District of Virginia, when Judge T.S. Ellis III found that Section 230 treated internet companies differently and immunized them even from the limited distributor liability that existed for brick-and-mortar entities like bookstores.

Zeran then appealed to the US Court of Appeals for the Fourth Circuit, which upheld the lower court’s ruling and its expansive interpretation of Section 230. “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,” the court wrote. “In light of the vast amount of speech communicated through interactive computer services, these notices could produce an impossible burden for service providers.”

The US Supreme Court refused to hear Zeran’s case, and the sweeping immunity granted by Section 230 became the law of the land.

Zeran’s loss was a major milestone. It paved the way for the dominant forces of today’s internet, from Amazon to YouTube and from Facebook to Twitter, who depend on Section 230 to avoid liability for content created by their users.

Lasting effects of Section 230

The case also has had a lasting effect on individuals who communicate online. If you’ve ever commented on news articles, uploaded videos to YouTube or engaged in flame wars on Twitter, you should probably be grateful for Section 230 (and the fact that Zeran’s challenge was unsuccessful). Without it, it’s unlikely that we could freely post our thoughts, feelings and ideas with minimal censorship or legal repercussions. In short, Section 230 is why the internet is such a robust and fertile place—and why it is often overrun by hate speech, conspiracy theories and fake news.

Today, internet companies face heated criticism from some conservatives who believe content moderation is too aggressive, and from some liberals who say too little is being done to stop the spread of hate speech and extreme ideologies. At the same time, policymakers are increasingly losing patience with Section 230, with commenters arguing that the broad legal protections actually serve to discourage providers from taking a more active role in managing online content.

Once again, Washington is taking action. In spring 2018, Congress amended Section 230 to allow states and civil actors to pursue claims against websites that “promote and facilitate prostitution” or “knowingly benefit from participation in a venture that engages in sex trafficking.” Prosecutors used this amended law to pursue the founders and operators of the website Backpage (see WIRED’s coverage of this case here). In June 2019, Senator Josh Hawley (R-Missouri) proposed legislation to further modify Section 230 to strip protections from platforms whose editorial control exhibits political bias. More action may be coming.

Ken ZZ03 and the troll who attacked Stratton Oakmont probably couldn’t have guessed what they were starting a quarter-century ago. And this story’s twists will continue to affect how the world communicates.

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