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Zeran v. Diamond Broadcasting, Inc.

United States Court of Appeals for the Tenth Circuit
203 F.3d 714 (2000)


Facts

In 1999, a federal building in Oklahoma City was bombed. The bombing received widespread national attention. Shortly after the bombing, an America Online user named KenZZ03 began posting listings for bombing-related apparel on an Internet bulletin board. The shirts made light of the bombing in poor taste and featured slogans such as “Visit Oklahoma—it’s a Blast.” The posting included a phone number for call-in orders. The phone number provided was the business number of Kenneth Zeran (plaintiff), a Seattle-based artist who had nothing to do with the posting. On the day of the first posting, Zeran began receiving threatening phone calls. Despite Zeran’s requests to have the postings removed, the postings remained on the Internet for at least a week. Approximately a week after the first posting, the hosts of KRXO, an Oklahoma City-based radio station owned by Diamond Broadcasting, Inc. (Diamond) (defendant), began discussing the posting on their live radio show. The hosts read the phone number attached to the posting and encouraged listeners to contact KenZZ03 and tell him what they thought about him for offering the offensive products. Zeran received roughly 80 angry phone calls, including death threats, and had to be prescribed anti-anxiety medication by his doctor. KRXO broadcast a retraction at Zeran’s request, but Zeran brought an action for damages against Diamond, including a claim of defamation. The district court granted Diamond’s motion for summary judgment, holding that Zeran had failed to prove the required elements of a defamation claim. Zeran appealed.

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Holding and Reasoning (Kimball, J.)

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