Brian Carroll | School of Journalism & Mass Communication | 16 March 2004
Free speech: free as in beer and free as in libre
Law:
Issues:
Five distinctions:
First distinction: blogging may or may not be journalism;
in terms of constitutional protections, it does not matter
Branzburg
v. Hayes (1972): The “liberty of the press is the right of the lonely
pamphleteer . . . as much as of the large metropolitan publisher.”
Second distinction: print medium and broadcast
medium
Reno
v. ACLU (1997): The court found that Web space is neither “a scarce
expressive commodity” nor an invasive one that enters “an individual’s
home or appears on one’s computer screen unbidden.” Justice John
Paul Stevens wrote for the majority that: the “interest
in encouraging freedom of expression in a democratic society outweighs any theoretical
but unproven benefit of censorship.” This is critically important. Blogs
should enjoy the highest level of constitutional protection.
State
law ambiguity
Georgia Supreme Court: Georgia retraction statute does apply
to Internet speech (Mathis
v. Cannon, No. S02G0361, Nov. 25.)
The statute: Ga. Stat. Ann. § 51-5-11, protects defendants from punitive damages if they promptly and prominently publish a retraction "in a regular issue of the newspaper or other publication in question."
Wisconsin
intermediate appellate court held that a state retraction statute that protected
"periodical[s]" did NOT apply to posts on Web-based chatrooms.
It's
in the Cards v. Fuschetto,
535 N.W.2d 11, Wis. App. 1995
Third distinction: original content and third-party
content
Ninth Circuit Court of Appeals (California) decided in
June 2003 under 47
U.S.C. sec. 230, a section of the Communications Decency Act,
discussion group moderators are immune from defamation liability for messages
posted to their groups, provided those messages were originally written by other
people and then sent to the moderator to be forwarded to the group.
47 U.S.C. sec. 230 limits online defamation liability in certain
circumstances:
“. . . 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"
Three other cases (all Ninth Circuit) similarly granted immunity to commercial
online service providers: AOL, eBay, Amazon.
Libel law
Enjoying the very highest level of constitutional protection means
that bloggers benefit from seven decades of high court opinions that have defined
the scope of the First Amendment, including but not restricted to libel cases.
Blogger Steven Den
Beste was perhaps the first to be threatened with a defamation lawsuit.
Beste’s account | The
offending post
Beste was never sued
Don
Luskin and New York Times columnist Paul Krugman
the whole
story from the New Yorker | Atrios
Zeran v. AOL (2003)
Blumenthal v. AOL (1998)
Global Telemedia International v. Doe (2001)
Fourth distinction:
fact and opinion
Matt Drudge and Sidney Blumenthal (again)
Settled out of court with confidentiality agreements.
Fifth distinction: US and International and cultural disparities
A very short list of countries has demonstrated a willingness to litigate and to hear cases involving U.S. individuals and entities: Australia, Canada, France and Germany.
Australia
Diamond Joe Gutnick
v. Dow Jones in Melbourne, Australia
From the court’s opinion: “ . . . those who post information on
the World Wide Web do so knowing that [it] is available to all and sundry without
any geographic restriction.”
Dr. Lyombe Eko's typologies:
Other issues:
I. Fair use:
Since 1976 and the U.S. Copyright
Act, federal judges typically ask four questions:
Digital Millennium Copyright Act
II. Hate speech: France and Germany | Yahoo! and Google | German law applies to those who post on the Web even from outside Germany
III. Anonymous
speech
Melvin
v. Doe
Ampex
IV. Press credentials
In
summary: Stay away from the minefields and you should be OK:
• transborder issues and jurisdictional ambiguities
• invasion of privacy
• libel and defamation
• copyright violations
• fraud
• obscenity
• sexual exploitation and pornography
ChillingEffects.org - Site monitoring free speech issues; a joint project of the Electronic Frontier Foundation and Harvard, Stanford, Berkeley, University of San Francisco, and University of Maine law schools
References:
Blumstein, Stephanie, “The New Immunity in Cyberspace: The Expanded Reach of the Communications Decency Act to the Libelous ‘Re-Poster,’” Boston University Journal of Science and Technology Law (Summer 2003), available: LexisNexis [accessed 15 January 2004].
Eko, Lyombe, “Many Spiders, One Worldwide Web: Towards a Typology of Internet Regulation,” Communication Law & Policy 6, no. 3 (Summer 2001): 445-484.
Gauthier, Ashley, “World Wide Worry,” The News Media & The Law 25, no. 1 (Winter 2001): 12.
Grant, David, “Defamation and the Internet: principles for a unified Australian (and world) online defamation law,” Journalism Studies 3, no. 1 (2002): 115-132.
Jardin, Xeni, “Bloggers Gain Libel Protection,” Wired (June 2003), available: http://www.wired.com/news/politics/0,1283,59424,00.html [accessed 10 December 2003].
Jones, Ken, “Web means more work for lawyers," St. Louis Journalism Review (November 2002): 9.
Kirtley, Jane E., “Bloggers and Their First Amendment Protection,” Nieman Reports (Fall 2003): 95-96.
Koerner, Brendan I., “A Fair User’s Manual,” Wired (November 2003): 48.
Kumar, Sapna, “Website Libel and the Single Publication Rule,” University of Chicago Law Review (Spring 2003) available: LexisNexis [accessed 10 January 2004].
Stiles, Allison, “Everyone’s a Critic: Defamation and Anonymity on the Internet,” Duke Law and Technology Review (March 2002), available: LexisNexis [accessed 15 January 2004].
Tannenbaum, Wendy, “Questions of Internet jurisdiction spin web of confusion for online publishers,” The News Media & The Law (Winter 2003): 33-36.