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Lost in Cyberspace

From the Spring 2002 issue of The News Media & The Law, page 4.

From the Spring 2002 issue of The News Media & The Law, page 4.

Just a few short years ago, the consensus seemed to be that the new freedom of the Internet would require a paradigm shift in the law. But critical information issues like online libel and access to government documents remain nebulous concepts

Lost In Cyberspace

By Phillip Taylor

The Internet was still in a stage of infancy when an infamous online columnist, after posting a short account alleging a Clinton adviser beat his wife, suddenly found himself on the defendant side of a $30 million libel lawsuit.

Matt Drudge, who gained notoriety gleaning news reports and sifting media gossip to feed The Drudge Report, posted on Aug. 10, 1997, a retelling of a rumor asserting that Clinton advisor Sidney Blumenthal engaged in spousal abuse. Drudge retracted the story the next day after Blumenthal denied the report.

Blumenthal and his wife, Jacqueline, quickly followed with a libel claim.

Media pundits divined that this lawsuit, Drudge v. Blumenthal, was to be the case to define Internet libel and decide the limits, if any, of press freedoms online. But the parties settled out of court in May 2001, with Blumenthal dropping his libel claim against Drudge and cutting a $2,500 check to pay some of the columnist’s attorneys’ fees.

Press advocates expressed mixed feelings about the settlement at the time, happy that Drudge survived the lawsuit but discouraged that the courts missed an opportunity to address an unsettled online press issue.

“It really was the case everyone was watching closely,” says Paul McMasters, First Amendment ombudsman for the Freedom Forum. “And now we wait with some trepidation for the next one.”

The apprehension of McMasters and other First Amendment advocates may seem surprising, considering the U.S. Supreme Court has ruled that speech on the Internet deserves the strictest of scrutiny when faced with government regulation just as with speech in other media.

But press and open-government advocates say journalists cannot always be certain that First Amendment press freedoms online always equate with press freedoms offline.

The reason: a dearth of Internet case law.

Online wonder

For years, online enthusiasts hyped the Internet as the communications medium of the future, an invention that would change all of the rules in how people interact. Some claimed the wonders of online communication would even redefine the speech and press elements of the First Amendment.

Despite the freewheeling nature of chatrooms, e-mails, listservers and Web logs, the courts have never become inundated with First Amendment-related lawsuits about the Internet, particularly those involving defamation.

“I have been puzzled that there has not been more defamation litigation involving Internet publications,” said Robert O’Neil, director of the Thomas Jefferson Center for Protection of Free Expression and author of the just-published book The First Amendment and Civil Liability. “Most of it has involved procedural issues or either jurisdiction, identity or unmasking issues. There haven’t been opportunities to address the merits to give us some guidance.”

Mike Godwin, a policy fellow at the Center for Democracy and Technology who specializes in online First Amendment issues, said the Drudge case, although settled, offers some guidance.

Godwin noted that U.S. District Court Judge Paul Friedman in Washington, D.C., quickly relieved America Online, original home of The Drudge Report, as a defendant in the case, determining that an Internet service provider cannot be held liable for the comments of its users.

And despite another Friedman ruling finding that Drudge “was not a reporter, newsgatherer or journalist,” observers of the case eventually recognized Drudge as someone performing a newsgathering function, albeit not always professionally or successfully.

“The one thing about Drudge was that everybody recognized that he had been negligent,” Godwin said. “And, at the same time, Blumenthal was clearly a public figure.”

Godwin stands certain that, had the case gone to trial, Drudge would have prevailed.

And then there’s the Supreme Court’s unanimous decision in 1997 in Reno v. ACLU, the first Internet case to reach the high court. The Court stripped significant portions of the federal Communications Decency Act, which made it a crime to put adult-oriented material online without restriction. The Court said the law trampled on the free-speech rights of adults, effectively reducing legal online material to only that which is fit for children.

Since then, the Court has continued to give online speech considerable protection. Most recently, the Court struck down provisions of the Child Pornography Protection Act, determining that Congress’ effort to stop virtual images of childlike people engaged in sexual conduct went too far. (Free Speech Coalition v. Ashcroft)

“I think we can take heart from the fact that the Supreme Court has been very consistent and very committed to the idea that speech on the Internet deserves the same protection as written and spoken speech,” McMasters said. “But that still leaves some areas like libel to find their niche. Hopefully, the court will look at libel the same way as indecency and accord it the same speech protections for other media.”

And thus, press advocates say, would be the benefits of a situation-specific case.

Unfortunately, with Drudge settled, such an online libel case doesn’t immediately come to mind.

The online standard

In the meantime, the online standard for libel remains up for debate. And press advocates suggest that several theories abound for how the courts should consider libel.

One poses online libel as a less threatening animal than traditional libel, for the main reason that the application of a right of reply would be greater than in a newspaper or magazine or on a television broadcast. A person who challenges an assertion on a Web site theoretically could reach the exact same audience with his own Web page or e-mail programs.

“A person who feels they’ve been libeled or defamed on the Internet has a much better opportunity of correcting the record or responding to the record than if that same information appeared in another medium,” McMasters said.

Godwin agreed: “The truth does get its boots on and catches up with a lie.”

On another side, the exposure of the Internet is so great that the potential damage from a false or malicious claim could spread across the world.

O’Neil said he doesn’t subscribe to that claim nor does he claim that anyone who starts posting on the Internet or creates Web logs or holds a press conference online suddenly rises to the level of public figure.

For him, the Supreme Court’s landmark decision in New York Times v. Sullivan, the 1964 case where the Court determined that public figures must show falsehood and actual malice before claiming damages in libel cases, remains a fair guide until other types of cases “give us a more panoramic look at the landscape.”

Other Internet issues

Libel aside, other Internet issues have circulated through the courts, some only tangentially relate to freedom of press but could potentially cause news organizations and journalists problems in future court cases.

First, there’s the issue of jurisdiction. At the same time the international breadth of the Internet offers newspapers and online publications greater exposure to readers, it also threatens to subject them to a greater likelihood of lawsuits far from their home base.

Recent court decisions forced two newspapers in Connecticut and the financial magazine Barron’s to defend lawsuits in Virginia and Australia respectively. Media attorneys say those court decisions might set dangerous precedents if not overturned, subjecting news organizations to huge expenses to defend lawsuits elsewhere. (See “Jurisdiction” on this page)

Next, there’s the issue of threatening and potentially violence-inciting speech, concerns raised in a lawsuit against the operators of an anti-abortion Web site accused of threatening abortion doctors by posting personal information in Western-style “Wanted” posters.

McMasters said the $109 million jury verdict against the operators of the “Nuremberg Files” Web site shows that courts are ready to impose steep damages against some speech. A U.S. Court of Appeals panel in San Francisco (9th Cir.) set aside the verdict, but the full court is now reconsidering the case.

“The fact of the matter is, there is an area outside of libel but closely akin where a case has been made that some content could be considered a threat or incitement,” he said.

And the courts have begun addressing anonymous speech on the Web as well as online criticism of people and corporations.

Online right to know

For the journalist online, the Internet offers unbelievably easy access to an abundance of court documents, hearing transcripts and other records of government business. But with the country on a war footing, Godwin noted, government has become more selective as it ponders whether online posts might aid an enemy of the nation.

Suddenly, what has always been available at the courthouse mutates into something primed for secrecy simply because a record seeker no longer has to trudge down to the courthouse to get the information.

Across the nation, both state and federal officials have taken efforts to remove information about chemical spill plans, maps, court documents, sexual offender notices and other documents from the Internet. At the same time, legislators have tried to rewrite Freedom of Information laws to ensure that Social Security numbers, e-mails and other records fall under exemptions so they would never appear online. (See pages 8-11.)

“The funny thing is, before the Web, a lot of this stuff wasn’t easily available,” Godwin said. “We’ve kind of had this Golden Age of the Web where government agencies had a tendency to put most of their records online.”

Who is a journalist?

And finally there’s the issue of the definition of “journalist.”

Five years ago, Matt Drudge, staring smack straight at a possible $30 million in damages from a lawsuit, also faced accusations from the press itself that he was not a real journalist.

Even the celebrated First Amendment attorney Floyd Abrams told the Wall Street Journal at the time that Drudge was not a journalist.

“There is such a level of built-in irresponsibility in everything he says and does,” Abrams said. “If one were rewriting libel law today, one would try to write it to assure that the false statements of Matt Drudge were treated as libel.”

But McMasters suggests that such thoughts of creating such distinctions have long past.

“The Internet for the first time really brings home the previously abstract ideas behind the argument that First Amendment advocates have made for years against crafting a definition of journalist,” he said. “For anyone who chooses to put up a Web site is, indeed, a journalist and a publisher and probably has to be treated that way under the law.”