The mother of a boy whose nude images were sold through an America Online chat room has asked the U.S. Supreme Court to review her case against the ISP, despite rulings by lower courts granting AOL immunity.
The "Jane Doe v. America Online" case originated in 1994, when a Florida middle school teacher named Richard Lee Russell videotaped the 11-year-old having sex with him and two other boys, then marketed the tape in a chat room geared toward pedophiles. In 1996, Russell pleaded guilty to sexual battery and was sentenced to 22 years in prison. In 1997, the mother of the boy sued AOL, seeking $8 million in damages. But a Palm Beach County circuit judge held that the newly minted Communications Decency Act protected the ISP from being sued for a subscriber's actions. The ruling was upheld by the 4th District Court of Appeals -- then upheld again by a 4-3 decision in the Florida Supreme Court in March.
In a last-ditch effort to reopen the case, the woman's lawyer, Brian W. Smith, filed a writ of certiorari with the U.S. Supreme Court last week. The document alleges that the Florida Supreme Court's decision conflicts with ongoing efforts of Congress and the U.S. Supreme Court to eliminate kiddie porn. "We believe the Florida Supreme Court misinterpreted federal law in their decision," said Smith. "The facts of the case are worthy of review." In the petition, Smith writes: "It makes no sense that Congress would, on the one hand, make a conscious decision to pass legislation preventing the dissemination of child pornography in the computer age and then, on the other hand and in the same year, pass legislation that provides immunity for the distribution of child pornography through 'cyberspace.'"
The writ also alleges that the Florida court erred by applying the CDA to the case retroactively and by allowing federal legislation to pre-empt state libel laws. "The Federal Supreme Court has extended the limitation of publisher liability to create a judicial safe haven to shield online service providers from civil liability when they participate in the distribution of child pornography," the document states. But chances are slim that the country's highest court will ever rule on the case, legal experts said.
"They're fighting an uphill battle," said David Carney, a lawyer and the editor of Tech Law Journal. The U.S. Supreme Court receives thousands of requests to review cases every year, but only chooses about 100, he said. Furthermore, lower courts have routinely found that Section 203 of the CDA - which deals with blocking and screening offensive material over the Internet - grants immunity to ISPs being sued for the actions of their subscribers. AOL, which did not respond to interview requests, has used Section 203 to its advantage in several cases.
But University of Florida law professor Lyrissa C. Barnett Lidsky said the wording of Section 203 is ambiguous. "It's not clear that Congress intended to eliminate all liability for ISP's in these types of situations," Barnett Lidsky said. "All of this is still being hashed out."
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