I wrote last week about the proliferation of the law of libel on the internet, but the same explosion of opportunities for litigation – and risks to would-be publishers – applies via the internet to all forms of speech. Libel is still libel, but more cases are pushing arguments that speech is conduct that can be sanctioned and criminalized. And for much the same reasons.
As I wrote:
Because like a lot of things that the internet did not change, it did not change the law of libel. In terms of what the internet did change, two things in particular are striking: First, the now potentially worldwide audience for anything published. And second, and sometimes of even more significance, the removal of barriers to entry. Or put another way: Everyone is a prospective publisher.
Several recent stories vividly illustrate the point, including an article in last Thursday’s New York Times about suicide chat rooms and prominent recent lawsuits in New Jersey and Louisiana involving attempts to “out” the names of anonymous online authors.
The Times reported that a Minnesotan named William F. Melchert-Dinkel was charged with aiding the suicide deaths of a British man in 2005 and a Canadian woman in 2008. Whatever can be said of his actions (and whatever might be deemed “just words”), Melchert-Dinkel’s actions were done solely via the internet and solely in the form of words.
The case is novel for several reasons, including the location of the presumed “conduct” – in Minnesota? In Canada? In the UK? – as well as the not-so-novel questions of individuals being held accountable for words alone.
Libel, of course, is all about words – no need to argue the fine points of conduct versus speech – so the Louisiana suit involving Jefferson Parish interim president Steve Theriot raises no real conduct issues. Lucy Dalgish of the Reporters Committee for Freedom of the Press is quoted in a Times story on Theriot, saying “Cases involving anonymous commenters are now ‘where the action is in libel suit,’” and Dalgish appears right, if only for the fairly predictable result of expanding to the sky both the publishing ranks and a prospective publisher’s audience.
Put another way, we are not in Louisiana anymore. As Randall Stross wrote last week in “Digital Domain”,
… [T]he online world … is already a very open and connected place, thank you very much. Densely interlinked Web pages, blogs, news articles and Tweets are all visible to anyone and everyone.
In the Louisiana case, the allegedly libelous statements (including “just another Jefferson Parish politician thug mobster”) were made by registered users of the website of the New Orleans Times-Picayune, known as Nola.com. That is, the names are known to Nola, and the suit seeks their disclosure but does not claim defamation by the website.
In the New Jersey case, Too Much Media v. Hale, a website operator unsuccessfully sought to protect the identity of third party contributors to her site as “sources” covered under New Jersey’s reporter’s “shield” law. The New Jersey appellate court ruled that the website operator could not claim the shield law’s protective rights because her publishing activity did not qualify her as a journalist. Perhaps the most interesting passage by the court was this one, giving the back-of-the-hand to a claim of 1st Amendment privilege by every Tom, Dick and Harry with a webcam and an internet connection:
However, the fact of presenting information on a new, different medium, even if capable of reaching a wider audience more readily, does not make it “news,” for purposes of qualifying for the newsperson’s privilege. Simply put, new media should not be confused with news media. There is, of necessity, a distinction between, on the one hand, personal diaries, opinions, impressions and expressive writing and, on the other hand, news reporting. The transmission or dissemination of a “message” through the new medium of the Internet, or the display of one’s content or comment thereon, does not necessarily entitle the author or writer to the same protection as a “newsperson.”
The separate subject of what constitutes a “journalist” for shield law and other 1st Amendment press protections is a subject for another day and a different blog. And one might lament the clearly conservative (some would say “stuck in the mud” crankiness) recalcitrance of the New Jersey court. But the broader law of these cases is not new or even particularly reactionary: Words have consequences in our society and published words have even greater consequences. Now take those published words and publish them even wider, and lower the barriers to publish, and the consequences can get quite interesting.
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