On Feb. 24, the Free Speech Project will host an event called “Redefining Free Speech for the Digital Age in Washington.” For more information and to RSVP, visit the New America website.
Has the internet made people more obnoxious? Or has it magnified the obnoxiousness of already obnoxious people?
I teach, write, and research about the history of online speech, so I think about these questions often. And frequently, when I do, my mind drifts to one name: Alex Lunney.
Like me, Lunney graduated from high school in 1996. We were both born between Generation X and the millennials (Generation Catalano, as Slate has called us), a cohort that entered high school with limited internet access at best, but used it frequently by the time we were in college. But Lunney’s relationship with the internet is unique even for a member of our mini-generation. He was one of the first high-profile victims of cyberbullying, though we didn’t use the term back then—it wasn’t enough of a thing to have a name.
Prodigy was one of the earliest national online services, allowing dial-up users to connect to chat rooms, bulletin boards, shopping, and other online services. (Check out this wildly nostalgic Prodigy commercial.) In 1994, Prodigy accounts purportedly registered to Lunney were responsible for emailing a threat to a Boy Scout leader. The accounts were also responsible for other vile emails and bulletin board postings on the popular online service. Lunney denied having anything to do with the messages, and while he was still in high school, his father sued Prodigy on his behalf. Ultimately, Lunney lost in New York’s highest state court, creating judicial precedent that has helped to protect online services from liability for user content.
Last year, I published a book about Section 230 of the Communications Decency Act, which Congress passed a year after Lunney filed the lawsuit. Section 230 shields interactive computer services from civil liability for much of the content provided by third parties. Although Section 230 was not responsible for Lunney’s loss, the statute effectively codified and strengthened some of the protections that the court provided to Prodigy. As I researched the book, I frequently encountered the two published court opinions from Lunney’s case. The opinions delve into the court’s legal justifications for immunizing Prodigy—for instance, likening Prodigy’s email service to a phone company. But they are short on details about what it was like, in 1994, for a 15-year-old Bronxville, New York, Boy Scout to be accused of sending an email to the leader of another Scout troop titled “HOW I’M GONNA’ KILL U.”
My high school experience with the internet was a largely uneventful one, first on my friend’s Prodigy account, and then on my own America Online account, mostly just to geek out about new technology in chat rooms. I had no idea what it was like to have Prodigy weaponized against you. So I tracked down Alex Lunney and asked him.
Alex Lunney now is a 41-year-old sales manager in New York. The litigation is long behind him; he lost his final appeal in 1999, well into his studies at Colgate University. Yet he vividly remembers key details of the harassment campaign.
First things first: Who on earth wanted to impersonate him?
Lunney doesn’t know for sure, but he has a pretty strong suspicion. Bronxville’s public school was tightknit, with a graduating class of no more than 75 students. Unlike many current online services that are free, such as Gmail, Prodigy carried a monthly cost after a 30-day free trial and required a credit card number for a new account. Two of his classmates had a software program that generated fake credit card numbers, and they had used those numbers to obtain 30-day Prodigy trials. By the time that Prodigy would discover that the credit card numbers were fake, they would move on to another number and account. Lunney had known the boys had used another classmate’s name for previous Prodigy accounts.
Lunney believes that the pair eventually moved on to use Lunney’s name for accounts. “I think they picked me because they knew my details,” he said. “They knew my phone number and they knew my name.” Lunney began to suspect something was amiss when he would receive calls in the middle of the night inquiring about “Alex Lunney’s” Prodigy bulletin board posts about topics such as basketball memorabilia. The phone calls were particularly odd to Lunney because he wasn’t even a Prodigy subscriber. “I was pretty tech savvy back in the day, but I didn’t have an allowance to pay for Prodigy,” he said.
The situation came to a head when the Scout leader received the threatening email from the account purportedly registered to Lunney. (Although the court opinions did not republish the text of the email, one judge described it as “a statement of fact to the effect that the plaintiff is a bully who has threatened to sodomize a Scout leader’s sons.”) The Scout leader called the Bronxville police, which investigated. He also called Lunney’s scoutmaster, who visited Lunney’s home to demand an explanation, in front of Lunney’s mother. The “Alex Lunney” account also sent other vulgar messages via Prodigy email and bulletin boards.
Lunney said he did not cry himself to sleep over the fake accounts. “It wasn’t a life-changing event,” he said. Nonetheless, the experience and aftermath were disturbing, he said. “One of the things I’ve had trouble reconciling since then is the fact that people would believe I wrote that stuff,” he said.
Lunney complained to Prodigy but received no help. Lunney recalls calling Prodigy and suggesting that they block the phone number that is dialing in with the fake accounts. “They’re like, ‘Oh no, we don’t keep that information,’ ” Lunney recalled. “They clearly had no interest in stopping what was happening to me. That really was eye-opening.” In fact, five days after the impostors sent the email to the Scout leader, Prodigy wrote a letter to Lunney notifying him that it was suspending his account for “abusive, obscene, and sexually explicit material.” Lunney responded to inform the company that he was not a Prodigy subscriber, and more than a month later, the company wrote back, apologizing to Lunney and informing him that it terminated other accounts that were opened in his name.
Lunney’s father, a lawyer, filed a defamation, negligence, and harassment suit against Prodigy on his behalf, based on the email to the Scout leader and two bulletin board postings that were not described in the court opinions. The lawsuit, filed on Dec. 22, 1994, at the time was among a handful of cases in which plaintiffs sought to hold these new online services accountable for user content. Not surprisingly, it received media attention. After the U.S. Supreme Court refused to review the New York court’s dismissal of Lunney’s lawsuit, UPI syndicated columnist James Kilpatrick profiled the case and argued that the Supreme Court would eventually need to “face the question of Internet liability.” (Nearly 20 years after his column, the Supreme Court has not yet done so).
In fact, the court opinions and other materials related to the lawsuit were among the first Google results for “Alex Lunney” for many years.
“During college, people would search me online, and Lunney v. Prodigy would be one of the first things that came up,” Lunney said. “The automatic assumption was that I wrote these death threats. Having that as the first impression for some people was frustrating.” The court opinions still appear in search results for Lunney’s name, though they are not as prominent as they once were.
“Having the distance behind me, I think, if I was a father and this was happening to my child, what would I do?” Lunney said. “I don’t think it would be possible for me to sit idly by and dismiss it.” The litigation, Lunney correctly noted, revolved around “the bigger picture of who’s responsible for what.”
And courts have been struggling with that issue for the internet for more than two decades. In Lunney’s case, the New York Court of Appeals ruled that Prodigy was entitled to the same strong protection for the email that telephone companies receive under the common law.
“Prodigy’s role in transmitting e-mail is akin to that of a telephone company, which one neither wants nor expects to superintend the content of its subscribers’ conversations,” Judge Albert Rosenblatt wrote. “In this respect, an [internet service provider], like a telephone company, is merely a conduit.” Rosenblatt also concluded that the common law shielded Prodigy from liability for the bulletin board postings.
By the time that Rosenblatt wrote his opinion in late 1999, Section 230 was on the books, and a federal appellate court had interpreted it as providing sweeping immunity for platforms, regardless of whether they knew of the harmful user content. Yet Rosenblatt found it unnecessary to apply the new statute because he was able to decide the case under the better-established common law. “Given the extraordinarily rapid growth of this technology and its developments, it is plainly unwise to lurch prematurely into emerging issues, given a record that does not at all lend itself to their determination,” Rosenblatt wrote. Because the opinion did not rely on Section 230, Lunney’s case has received less attention than other early cases involving troubling online harms.
Since Lunney’s loss, courts nationwide have broadly applied Section 230. The statute has immunized platforms in difficult cases and, in recent years, has attracted great criticism and calls for repeal. This brings me back to my original question: Has the internet—enabled by Section 230 and court rulings such as Rosenblatt’s—made us more obnoxious?
Those of us in Generation Catalano can recall the days when internet access was not commonplace. Some kids (and adults) were mean even before they had social media accounts. If they didn’t have modems, Lunney’s classmates probably would have found other ways to inflict their awfulness on others.
Yet the connectivity of the commercial internet—even in its very earliest forms—has provided a weaponized megaphone to some of the most obnoxious users, including Lunney’s tormentors.
The challenge for the platforms that have long since replaced Prodigy is to minimize the frequency and severity of such obnoxious and harmful speech without stifling other forms of expression. Such a task is particularly difficult when serving hundreds of millions—or, in some cases, billions—of users, compared with the few million that Prodigy had in its peak years.
What if the New York Court of Appeals, in the infancy of the commercial internet, had ruled in favor of Lunney, and concluded that both the common law and Section 230 do not shield Prodigy from his lawsuit? Lunney has mixed feelings. “It might be a safer outcome for some individuals,” he said, “but it’s hard to imagine the internet exploding and growing if it went in the other direction.”
Indeed, Congress passed Section 230 in 1996 for two reasons: to foster the growth of internet-based businesses and to allow platforms to develop their own moderation practices without becoming liable for every word that their users post.
Whether platforms have made good on that expectation may determine the fate of Section 230—and the internet that the law has since created. Obnoxious speech and everything else that comes along with it, good and bad.