the web difference: a non-cda-230 rationale against...

THE WEB DIFFERENCE: A NON-CDA-230 RATIONALE AGAINST LIABILITYFOR ONLINE REPRODUCTION OF THIRD-PARTY DEFAMATORY CONTENT

Matt C. Sanchez

I. INTRODUCTIONII. TRADITIONAL REPRODUCTION LAW

a. OVERVIEWb. PRIVILEGES

1. FAIR REPORT PRIVILEGE2. NEUTRAL REPORTAGE PRIVILEGE3. WIRE SERVICE DEFENSE

III. THE WEB DIFFERENCE a. THE EQUIVALENCE MYTHb. THE UNIQUE BENEFITS OF ONLINE SPEECH AND ONLINE REPRODUCTIONc. FUNDAMENTAL DIFFERENCES BETWEEN ONLINE AND OFFLINE SPEAKERS

1. ABILITY TO ASCERTAIN THE DEFAMATORY NATURE OF SPEECH2. DEFAMATION SUITS' ENHANCED SUPPRESSIVE EFFECT ON ONLINE

SPEECHIV. THE NEED FOR A BRIGHT LINE RULE OF IMMUNITY

a. PROFESSIONAL VERSUS NON-PROFESSIONAL SPEAKERSb. FORM OF REPRODUCTIONc. SUBJECT OF REPRODUCTIONd. KNOWLEDGE AND NOTICE

V. CONCERNS ABOUT DEFAMED INDIVIDUALS' ABILITY TO SEEK REDRESSVI. CONCLUSION

I. INTRODUCTION

[The Supreme Court has] recognized the need in certain instances to forbid otherwise valid defamation claims to proceed if allowing them might discourage citizens and the media from expressing themselves freely on matters of public concern.1

The First Amendment states that “no law” can be made that restricts the freedom of speech.

Historically, we know this is not the case. Courts have found that the Constitution allows some

restrictions on speech, typically where the restrictions deal with a narrow set of “low value” speech

forms.2 In order to satisfy the First Amendment, laws that restrict these types of speech still must pass

a Constitutional inquiry in order to ensure they do not unduly restrict freedom of speech as a whole.3

1 Martin F. Hansen, “Fact, Opinion, and Consensus: The Verifiability of Allegedly Defamatory Speech,” 62 GEO. WASH. L. REV. 43, 47 (1993) (discussing New York Times Co. v. Sullivan, 84 U.S. 254, 269-70 (1964)).

2 The basic list of low-value speech forms was laid out by the Supreme Court in Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942) (“These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”).

3 See Sullivan, 84 U.S. 254, 269-70 (“[Restrictions on] libel can claim no talismanic immunity from constitutional

Matt C. [email protected]

The relevant question when discussing a restriction on speech is whether the harm arising from

the speech is so compelling and the value of the speech so low that suppressing the speech does not

offend the First Amendment. Stated differently, the First Amendment tolerates restrictions when the

speech's potential harm outweighs its social benefits – a high bar given the favored place of free speech

in American society. The evolution of defamation law reflects this balancing analysis,4 as exceptions to

defamation liability have arisen where speech has higher value.5 In some cases, the public value of

receiving defamatory speech – or, often more importantly, speech that may have been suppressed by

over-restrictive defamation laws – outweighs any resulting harm.6

Under traditional defamation law, there is little distinction between the originator of a

defamatory statement and a party that repeats that statement.7 For the most part, anyone who

reproduces a given defamatory statement, regardless of context, is equally liable. However, the advent

of online speech has upended the concept of reproduction8 liability. Specifically, a single piece of

legislation – section 230 of The Communications Decency Act (“the CDA”)9 – largely precludes

liability for online reproduction of defamatory content.10 This has elicited much consternation from

some courts and commentators, who argue that it makes no sense to provide immunity for online

activities that would result in liability if carried out offline.11 Perhaps the primary reason for this

limitations. [They] must be measured by standards that satisfy the First Amendment.”).4 Dairy Stores, Inc. v. Sentinel Publishing Co., 104 N.J. 125, 135-36 (1986) (“The evolution of the law of defamation

reflects the tension between society's competing interests in encouraging the free flow of information ... and in protecting an individual's reputation.”).

5 There are a number of common law and statutory privileges that exempt defamatory speech from liability in certain situations, particularly in the case of reproduced defamatory speech. For a discussion of a few representative examples, see section IV(a)-(d) of this paper, infra.

6 Id.7 See section IV of this paper, infra.8 This paper uses the term “reproduce” and its derivations to encompass the various ways in which one party can repeat

the speech of another – whether it is vocalizing a third-party statement, quoting a third-party speaker in a newspaper, or reprinting an entire news article on a blog. This is to avoid using words such as “publish,” “distribute,” and “transmit” that have become terms of art in the context of communications law. The use of “reproduce” as a comprehensive term reflects the difficulty if not impossibility of applying the aforementioned traditional-media terms to the varied arena of online speech. In situations where this paper uses “republish” and other such terms, it uses them specifically to refer to the established legal concepts they typically represent.

9 47 U.S.C. § 230.10 Barrett v. Rosenthal, 146 P.3d 510, 529 (Ca. 2006)(“[The CDA offers] [t]he prospect of blanket immunity for those who

intentionally redistribute defamatory statements on the Internet.”).11 See, e.g., Id. at 529 (citing concerns about online reproduction immunity under the CDA while upholding it when

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outrage is that there is little normative rationale included within the CDA's language as to why the law

should distinguish between what might appear to be the identical reproductive actions of online and

offline speakers.12

This paper steps away from the CDA in order to supply the missing rationale behind it, offering

a normative argument as to why online reproduction is different from offline speech13 such that it

frustrates traditional standards of liability. In the arguments below, this paper will show why Internet

speakers should be immune from liability for reproducing defamatory content14 regardless of where

interpretations of the CDA ultimately lead. In brief, this paper argues that restriction of online

reproduction is inappropriate because online reproduction is of significant value even when

defamatory. This is coupled with the fact that online reproduction as a whole is particularly susceptible

to the chilling effect of litigation and legal threats, shifting the First Amendment balance in favor of

protection in order to preserve its benefits.

Section II of this paper lays out the parameters of traditional reproduction law, noting several

common-law reproduction privileges that offer a conceptual foundation for online reproduction

immunity. Section III discusses the unique characteristics of online speech and online reproduction. In

doing so, Section III shows why online reproduction benefits the public dialogue even when

applied to an Internet user who reproduced defamatory e-mails); Melissa A. Troiano, Comment, "The New Journalism? Why Traditional Defamation Laws Should Apply to Internet Blogs," 55 AM. U. L. REV. 1447, 1468-9 (2006) (“[Immunity would] allow[] information that could not be published in a newspaper to be purposefully placed on a blog with no repercussions.”).

12 That is, any normative rationale on this specific point. The CDA does state a goal of protecting the development of the Internet and praise the online world as “a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” See 47 U.S.C. § 230 (a)(3) & (b)(1).

13 For simplicity's sake, this paper will use terms such as “offline speech” and “traditional speech” to refer to non-Internet equivalents of online speech – that is, print and broadcast speech. The spoken word is outside the scope of this discussion. In other words, offline speech consists of non-Internet speech that would be subject to libel law, rather than slander law. See n.17, infra, for further discussion of why discussion of slander generally is not relevant to discussions involving online speech.

14 This paper will focus on forms of reproduction in which the reproducer makes an affirmative choice to engage in reproduction, such as when a blogger quoting a defamatory third party statement. This is contrast to situations where liability is sought for alleged reproducers who did not make such a choice – often referred to as“intermediary liability” – such as when a blogger is sued for statements posted by a third party into the blog's comments section. Such situations present a significantly easier case for immunity given the lack of editorial action from the alleged reproducer. Because of this, the question of intermediary liability should be adequately covered by the standard of immunity proposed here.

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defamatory and why these benefits would be unduly restricted by the chilling effect of litigation.

Section IV addresses problems with several possible exceptions to immunity in order to show that a

standard of absolute immunity is the only solution that will adequately preserve online reproduction's

benefits. Section V briefly discusses why concerns about reproduction immunity's affect on defamed

individuals’ ability to seek redress are overstated and do not tip the First Amendment balance away

from protection.

II. TRADITIONAL REPRODUCTION LAW

a. OVERVIEW

The traditional standard of reproduction liability is that "one who repeats or otherwise

republishes defamatory matter is subject to liability as if he had originally published it,"15 or, to put it

more simply, “talebearers are as bad as talemakers.”16 Thus, reproducing defamatory17 content exposes

a speaker to liability regardless of whether the speaker had a hand in creating the content.

The central rationale behind reproduction liability is that libelous reproductions harm a defamed

individual to the same extent as the original defamatory message.18 The law takes for granted that

reproductions of defamatory content offer little value to the public, following the common law principle

that defamatory messages have little or no speech value.19 The result is the impression that the harm

suffered by defamed individuals outweighs the minimal free speech benefits of reproduction, making

liability appropriate.

15 Restatement (Second) of Torts §578 (1977).16 Barry v. Time, Inc., 584 F. Supp. 1110, 1122 (N.D. Cal. 1984).17 In the online context, “defamation” and “libel” have become synonymous. At this point it seems established that libel

laws, to the limited extent that they differ from slander laws, dictate defamation disputes online. Thus, while this paper will use the general term “defamation” in most cases, pursuant to conventions of online speech discussion, the term is interchangeable here with “libel.” See, e.g., Ryan Lex, “Can MySpace Turn Into My Lawsuit?: The Application of Defamation Law to Online Social Networks,” 28 LOY. L.A. ENT. L. REV. 47, 52-3 (2007-2008); Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997); Cubby, Inc. v. CompuServe, Inc., 776 F. Supp. 135 (S.D.N.Y. 1991).

18 Condit v. Dunne, 317 F. Supp. 2d 344, 363 (S.D. N.Y. 2004) ("The reason for this rule is that republication of false facts threatens the target's reputation as much as does the original publication.").

19 Chaplinsky v. State of New Hampshire, 315 U.S. 568, 572 (1942) (“[Defamatory statements] are of such slight social value ... that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”). But see New York Times Co. v. Sullivan, 376 U.S. 254 n.19 (1964) (“Even a false statement may be deemed to make a valuable contribution to public debate....”).

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Traditional analysis of reproduction liability qualifies this concept by distinguishing between

three possible types of reproducers: “publishers,” “distributors,” and “common carriers.” Traditionally,

publishers of content – such as individual speakers, print media publications, broadcast companies, and

so forth – are the only reproducers who face liability. This is because rupublishers of third-party

defamatory content are said to “publish” the content just as the original speaker did. Under traditional

reproduction law, each reproduction of a defamatory statement by a publisher constitutes a separate

instance of publication for the purposes of defamation liability.20 Distributors and common carriers,

such as newsstand operators and telephone companies, respectively, traditionally are immune from

liability unless they have knowledge that the content is defamatory.21

The CDA holds that online reproducers cannot be treated as publishers and speakers of third-

party defamatory content and thus are not subject to liability. Opponents argue that this is a

nonsensical result in cases where online reproducers' actions are similar to those of traditional

reproducers. This paper asserts that this argument is moot. The following discussions will treat online

reproducers as publishers and speakers of allegedly defamatory content and will show why holding

them liable under even that higher standard would violate the First Amendment.

It generally is not a defense to liability that the reproducer did nothing more than repeat

someone else's statement, even where the reproducer notes specifically that it merely is repeating the

statement.22 Upon reproduction the reproducer is said to “adopt as his own” the defamatory

statement.23 Aside from the exceptions for distributors and common carriers, then, the reproduction

liability analysis is essentially the same as if it were an analysis of an original defamation claim.

Reproduction analysis differs from original defamation liability, however, in that there are a

20 1 Law of Defamation § 4:87 (2d ed.).21 Restatement (Second) of Torts §581 (1977) (“[O]ne who only delivers or transmits defamatory matter published by a

third person is subject to liability if, but only if, he knows or has reason to know of its defamatory character.”).22 Id. (“Liability for repetition of a libel may not be avoided by the mere expedient of adding the truthful caveat that one

heard the statement from somebody else.”).23 Id.; Flowers v. Carville, 310 F.3d 1118, 1122-3 (9th Cir. 2002) (“The law deems the repeater to 'adopt as his own' the

defamatory statement.”).

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number of common law and statutory privileges that negate liability for the reproduction of defamatory

speech, some of which confer absolute immunity upon the speaker.24 These privileges are evidence of

a tension that exists within defamation law – they mark occasions in which the First Amendment

benefits of certain reproductions of defamatory material are sufficient to counterbalance the targets'

right to seek redress for the harm they may suffer as a result. The following subsections discuss some

of these privileges and shows how they affect First Amendment balancing.

b. PRIVILEGES

1. FAIR REPORT PRIVILEGE

The fair report privilege is a common law and in some jurisdictions statutory25 privilege that

precludes defamation liability for speakers who “fairly and accurately report certain types of official or

governmental action.”26 This means that speakers are not held liable for reproducing the defamatory

statements of legislators, parties to judicial proceedings, and other actors involved in official or

government activities. The fair report privilege was developed in order to insure that information

regarding official activities is made available to the public.27 Nearly all public knowledge about the

workings of government is derived from the efforts of news organizations and others who reproduce

and describe official statements.28

The fair report privilege itself is an extension of the absolute privilege afforded to the actors in

official proceedings. Federal and state legislators enjoy an absolute privilege to speak or publish

defamatory matter during the course of their legislative duties, regardless of whether the defamatory

matter is related to matters of legislative concern.29 The same privilege often extends to members of

24 Restatement (Second) of Torts §583-612. For further information on common law and statutory privileges, see section II(b) of this paper, infra.

25 See, e.g., N.D. Cent. Code § 14-02-05; Ohio Rev. Code Ann. § 2317.05.26 22 A.L.R.6th 553 at §8 (listing cases that have recognized the fair report privilege). 27 22 A.L.R.6th 553 at §8.28 Michael M. Conway et al., “The Illinois Supreme Court and the 'Fair Report' Privilege: A Free-Press Victory,” 94 ILL.

B.J. 414, 414 (2006).29 Restatement (Second) of Torts, § 590.

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local and subordinate legislative bodies, such as city councils and county boards, though this varies by

jurisdiction.30 Similarly, statements made in a judicial proceeding by parties thereof – including the

judge and the parties' counsel – are privileged so long as they are relevant to the dispute at issue.31

Other protected statements include those made by police officers during the course of their duties,32

certain forms of military communications,33 certain forms of business communications,34 and

accusations of criminal conduct by those involved in criminal investigations.35 Under fair report,

reproductions of these statements are privileged.

The primary qualification of the fair report privilege is that the reproducer is limited to

reporting the fact of the assertion.36 The reproducer cannot assert the truth of the assertion or otherwise

make factual statements supporting the truth of the assertion on her own authority and still enjoy

absolute privilege. Stated differently, the reproducer may not “adopt[] the defamatory statement as its

own.”37

Other restrictions of the privilege vary by jurisdiction. Some jurisdictions deny application of

the privilege where the speaker has actual malice in reproducing the information.38 The other common

restriction is to preclude extension of the privilege when the report as a whole is not substantially

correct or substantially accurate overall.39

The recent trend in fair report litigation has been an expansion of the privilege to nearly all

statements made by government officials or in government documents.40 The privilege has shown a

30 Id.31 50 Am. Jur. 2d Libel and Slander § 279.32 Id. at § 273.33 Id. at § 293.34 Id. at § 306-310.35 Id. at § 296.36 155 A.L.R. 1346 (“[A] publisher must not declare on his own authority the existence of facts which are only asserted in

the proceedings; he is limited to reporting the fact of the assertion.”).37 50 Am. Jur. 2d Libel and Slander § 305.38 See, e.g., Riemers v. Grand Forks Herald, 688 N.W.2d 167 (N.D. 2004).39 See, e.g., Salvo v. Ottaway Newspapers, Inc., 782 N.E.2d 535 (Mass.App.Ct. 2003); Gupta v. The Lima News, 744

N.E.2d 1207 (3d Dist. Allen County 2000).40 See David A. Anderson, “Rethinking Defamation,” 48 ARIZ. L. REV. 1047, 1051-2 (2006); Mich. Comp. Laws Ann. §

600.2911(3) (2004) (expanding the privilege to any “governmental notice, announcement, written or recorded report or record generally available to the public”); Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1097 (4th Cir. 1993)

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tendency to expand in other ways, such as toward including statements of foreign government actors.41

The trend toward expansion is common to defamation and reproduction law exceptions, as the

following subsections show.

2. NEUTRAL REPORTAGE PRIVILEGE

The neutral reportage privilege is a natural extension of the fair report privilege, providing

immunity from defamation liability for reproductions of certain statements made about public figures.42

The initial formulation of the privilege required speech to meet five criteria in order to qualify.43 First,

the origin speech must have been made by a “responsible organization.”44 Second, the speech must

have been targeted at a public figure. Third, the speech must have been made under circumstances

where “a raging and newsworthy controversy exists.” Fourth, the reproduction of the speech must be

“accurate and disinterested.” Fifth, the origin speech must constitute a “serious charge” against the

public figure.

The privilege is a common law doctrine first developed in the Second Circuit case Edwards v.

National Audubon Society, Inc.45 The court in Edwards determined that the New York Times was not

liable for defamation after accurately reproducing possibly defamatory accusations made by the

National Audubon Society against various scientists. The court did not consider malice46 as it would

have in a typical defamation case; unlike the fair report privilege and common law defamation, the

(expanding the privilege to unofficial statements made by members of Congress); Medico v. Time, Inc., 643 F.2d 134, 140 (3d Cir. 1981) (expanding the privilege to statements in FBI files).

41 Kyu Ho Youm, “Republication of Foreign Government Statements: The Fair Report Privilege in U.S. Libel Law Reexamined,”6 COMM. L. & POL'Y 393 (2001).

42 50 Am. Jur. 2d Libel and Slander § 295.43 See 13 A.L.R.6th 111 (2006).44 Courts have offered little guidance as to what constitutes a “responsible organization,” but recognized examples include

the National Audubon Society (Edwards v. National Audubon Soc., Inc., 556 F.2d 113 (2d Cir. 1977)), a law firm (Coliniatis v. Dimas, 965 F. Supp. 511 (S.D.N.Y. 1997)), and a sheriff (April v. Reflector-Herald, Inc., 546 N.E.2d 466, (Ohio Ct. App. 1988)).

45 556 F.2d 113 (2d.Cir. 1977).46 Since the scientists were public figures, they would have had to prove that the New York Times published the

statements with “actual malice” in order to prevail on a defamation claim. Actual malice means the speaker either knew the statements were false or showed reckless disregard as to whether the statements were false. See Sullivan, 376 U.S. 254.

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neutral reportage privilege has no malice component. The privilege protects reproductions even if the

reproducer was aware that elements of the origin speech were false or defamatory.47

The rationale behind neutral reportage is that it is newsworthy when reputable speakers make

accusations against public speakers. The fact that such an accusation has been made is newsworthy

regardless of the truth of the accusation.48 To borrow a hypothetical situation, imagine that President

George W. Bush holds a news conference in which he accuses Vice President Dick Cheney of

accepting bribes from a large and influential corporation.49 Immediately following the conference,

Bush informs those in attendance that the accusations were false and that he only had made them in

order to rouse public sentiment to help him to get rid of Cheney. Since those in attendance then would

know the accusations were false, they probably would face liability under the Sullivan50 actual malice

standard if they reprint them. Absent the neutral reportage privilege, the president's attempt to discredit

the vice president likely would go unreported.

There has been some opposition to the neutral report privilege, primarily from courts and

commentators who believe the privilege protects speech that does not have sufficient First Amendment

merit to tip the balance away from liability.51 A primary point of contention is the lack of a malice

analysis under Sullivan, which does not allow a weeding-out of more egregious cases.52 It is worth

noting, however, that Sullivan merely establishes that actual malice must be proved as a threshold issue

47 13 A.L.R.6th 111 (2006) (“[N]eutral reportage ... shields from liability republishers who accurately and disinterestedly report certain defamatory statements, regardless of the republisher's subjective awareness of the truth or falsity of the accusation.”).

48 Edwards, 556 F.2d at 120 (“What is newsworthy about such accusations is that they were made.”).49 Michael Huber, “Edwards v. Audubon Society Twenty-Five Years Later: Whatever Happened to Neutral Reportage?”

20-SPG COMM. LAW. 15, 15 (2002) (attributing the hypothetical to Alan H. Fein, speaker at the seventh annual conference of the American Bar Association's Forum on Communications Law, February 14-16, 2002, in Boca Raton, Florida.).

50 Sullivan, 376 U.S. 254. 51 See Norton v. Glenn, 860 A.2d 48, 58-9 (Pa. 2004); James E. Stewart & Laurie J. Michaelson, “Reining in the Neutral

Reportage Privilege,” 17-SUM COMM.LAW. 13 (1999); David A. Elder, “Truth, Accuracy and Neutral Reportage: Beheading the Media Jabberwock's Attempts to Circumvent New York Times v. Sullivan,” 9 VAND. J. ENT. & TECH. L. 551 (2007).

52 See, e.g., Dickey v. CBS Inc., 583 F.2d 1221, (3d Cir. 1978) (“[F]or libel against a public figure to be proved, '(t)here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication ... which demonstrates actual malice.”) (quoting St. Amant v. Thomas, 390 U.S. at 727 (1968)) (declining to adopt the neutral reportage privilege).

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before a public figure can succeed on a defamation claim; it does not assert as a normative matter that

public figures must be able to succeed on any defamation claim in which they have proven actual

malice.

Despite the controversy, courts have moved to expand the neutral report privilege on almost all

of the five original criteria. A number of courts have applied or discussed the propriety of applying the

privilege to situations in which the speech at issue targeted private persons, rather than public figures.53

Similarly, some courts have found that the public figure requirement can be satisfied when the target is

involved in public controversy or has a sufficient connection to public programs or issues, regardless of

whether the target inherently is a public person.54 There has been a movement to expand the

“responsible organization” requirement to any prominent party to a controversy55 or even to speakers

who are “unprominent” or “unresponsible.”56 Courts have expanded this requirement in order to avoid

the chilling effect on speech that would occur if reproducers were forced to make a determination of

the original speaker's level of trustworthiness or prominence and to face defamation liability if they

chose wrong.57 Courts also have viewed the “raging controversy” standard more expansively, finding

that a preexisting newsworthy controversy is sufficient.58 One court has rejected the preexistence

requirement as well, extending the privilege to all issues that are “serious and newsworthy.”59 Under

this view, application of the privilege is based upon the public's interest in receiving the information.60

53 Barry v. Time, Inc., 584 F. Supp. 1110, 1127 n.20 (N.D. Cal. 1984) (noting a possible public interest in charges made by reputable organizations and individuals against private persons because of the corresponding “insight into the defamer's character.”); Krauss v. Champaign News Gazette, Inc., 375 N.E.2d 1362, 1363-64 (Ill. App. Ct. 1978) (finding the privilege to include reportage of “information relating to public issues, personalities, or programs,” including statements about a psychologist who was a government contractor.). Contra Khawar v. Globe Int'l, Ltd., 965 P.2d 696, 706 (Cal. 1998) (stating that most courts apply the privilege only to public figures).

54 Krauss, 375 N.E.2d 1362, 1363-64; April v. Reflector-Herald, Inc., 546 N.E.2d 466 (Ohio Ct. App. 1988).55 Ward v. News Group Int'l, Ltd., 733 F. Supp. 83, 84-85 (C.D. Cal. 1990); Barry v. Time, Inc., 584 F. Supp. 1110, 1125-

28 (N.D. Cal. 1984). 56 In re United Press Int'l, 106 B.R. 323, 329-30 n.16 (D.D.C. 1989).57 See, e.g., Barry, 584 F.Supp. at 1126 (“[I]t could create a chilling effect on the members of the press if they were

required to be the arbiters of how 'trustworthy' a source is.”).58 Barry, 584 F. Supp. at 1126-27 (N.D. Cal. 1984) (requiring merely an “existing controversy”); In re United Press Int'l,

106 B.R. 323, 330-31 & n.19 (D.D.C. 1989) (rejecting requirement of a “raging” controversy). See Elder, 9 VAND. J. ENT. & TECH. L. at 682 (2007).

59 United Press Int'l, 106 B.R. at 330-31 & n.19 (1989).60 Elder, 9 VAND. J. ENT. & TECH. L. at 682 (2007) (discussing United Press Int'l, 106 B.R. 323).

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Take note of this last point, because it foreshadows a modern trend toward expanding the “public

figure” doctrine to take into account the ways that online speech has changed the meaning of concepts

such as “newsworthiness” and “issues of public concern.”61

3. WIRE SERVICE DEFENSE

The common-law “wire service” defense mandates that publications may not be held liable for

defamation arising from news they republish from certain reputable sources.62 The defense primarily

has applied to news republished from wire services, includes the Associated Press and United Press

International. To give an example, the defense protects newspapers from liability for republishing an

Associated Press article that later is found to be defamatory. This is the case so long as the news

qualifies as “apparently authentic,” a standard that asks the reproducing entity to undertake the

following duties:

[W]hen a local media organization receives a wire service release, it has a duty to read the

release to ensure that the face of the story itself does not contain any inconsistencies. The

local media organization also has a duty to refrain from publishing the news story if the

news organization knows the story is false or if the release itself contains unexplained

inconsistencies. The local media organization does not have a duty, however, to

independently verify the accuracy of the wire service release.63

The rationale of the wire service defense is that, absent such a protection, it would be

prohibitively difficult if not impossible for publications to include news from outside their primary

locale.64 Publications would be deterred from publishing news stories except in cases where they could

61 See section IV(c) of this paper, infra.62 Layne v. Tribune Co., 146 So. 234, 238 (1933).63 Brown v. Courier Herald Pub. Co., Inc., 700 F. Supp. 534, 537 (S.D. Ga. 1988). 64 James E. Boasberg, “With Malice Toward None: A New Look at Defamatory Republication and Neutral Reportage,” 13

HASTINGS COMM. & ENT. L.J. 455, 458-9 (1991). See Layne, 146 So. at 239 (“No newspaper could afford to warrant the absolute authenticity of every item of its news, nor assume in advance the burden of specially verifying every item of news reported to it by established news gathering agencies, and continue to [publish promptly, if at all].”).

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afford to have their own reporters investigate all relevant facts. Smaller publications in particular

would be relegated to covering a limited scope of local news topics and national or local “fluff” pieces

of little substance.65 Indeed, it is difficult to imagine how both wire services and small publications

that purport to offer any sort of national coverage could operate if publications were required to

independently verify all facts included in wire service content.66 Such a result severely would restrict

the dialogue around issues of wide public interest.67

The wire service defense has matured into a strong protection for republished speech. Even

after the Supreme Court established malice- and negligence-based defamation standards for speech

targeted at public figures68 and private individuals,69 respectively, courts have limited liability under the

wire defense to cases in which the plaintiff can prove the defendant had knowledge the disputed

content was defamatory.70 Courts have found that publishers' reliance on wire services obviates the

possibility of malice71 or even negligence72 absent this knowledge.73

It is worth noting that the wire service defense is not limited to wire services.74 The defense

was originally formulated to encompass all “generally recognized reliable source[s]”75 of news. It is

65 Appleby v. Daily Hampshire Gazette, 478 N.E.2d 721, 725 (1985) (“[B]ecause verification would be time-consuming and expensive, imposing such a burden would probably force smaller publishers to confine themselves to stories about purely local events.”); Boasberg, 13 HASTINGS COMM. & ENT. L.J. at 458.

66 Boasberg, 13 HASTINGS COMM. & ENT. L.J. at 459 (“It is arguable that a contrary ruling would have crippled both wire services and small papers of a national bent, leaving the field of national news reporting exclusively to the largest papers and thereby narrowing the spectrum of comment and criticism.”).

67 Id.68 Sullivan, 376 U.S. 254 (1964). 69 Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974).70 Boasberg, 13 HASTINGS COMM. & ENT. L.J. at 462 (“[A]ny liability is predicated on the republisher's knowledge of

the story's falsehood ....”).71 Waskow v. Associated Press, 462 F.2d 1173, 1176 (D.C. Cir. 1972) (“Newspaper editors have no cause to doubt the

accuracy of a major wire service dispatch, absent an apparent inconsistency or other indication of error.”); Boasberg, 13 HASTINGS COMM. & ENT. L.J. at 459.

72 Appleby, 478 N.E.2d at 725 (“[I]n ordinary circumstances, no jury could reasonably find that a newspaper had acted negligently in relying on the accuracy of a story from a reputable wire service.”); Boasberg, 13 HASTINGS COMM. & ENT. L.J. at 460-3.

73 While this standard is similar to the Sullivan “actual malice” standard, it differs in a key respect: one can trigger actual malice without knowledge if one had a “reckless disregard” for the truth or falsity of a statement. For purposes of actual malice, one is treated as having knowledge if one should have had knowledge. Under the wire service defense, it seems that reliance on reputable news sources obviates the possibility that one had “reckless disregard.”

74 See Boasberg, 458-466 (tracing history, application, and interpretation of the wire service defense).75 Layne, 146 So. at 238.

12


not the category of the source the matters but rather the source's reputation as a disseminator of

trustworthy information.76 When a source has such a reputation, it is reasonable for a speaker to rely on

that reputation when deciding whether or not to reproduce content from the source. At least one court

has determined explicitly that the wire service defense protects materials reproduced from other

reputable sources.77 In that case, a Newsweek author had relied on information taken from the

Washington Post, the Miami Herald, and the New York Daily News.78

The wide acceptance of the wire service defense has prompted at least one commentator to

suggest that the general rule burdening “republishers” with liability should be abolished.79 Taken as a

whole, the fair report, neutral reportage, and wire service defenses show that there are a number of

compelling reasons to limit reproduction liability. Further, they show that the law is willing to engage

in limitation where reproduction law would suppress valuable speech. The following section explains

why online reproduction is a form of valuable speech that would be unduly restricted by reproduction

liability.

III. THE WEB DIFFERENCE

a. THE EQUIVALENCE MYTH

The prevailing theme among opponents of immunity for online reproduction and other

defamation-related torts is that online speech is functionally identical to traditional media speech.80

76 See generally Boasberg, 13 HASTINGS COMM. & ENT. L.J. 455.77 Nelson v. Associated Press, 667 F. Supp. 1468, 1475 (S.D. Fla. 1987). See Boasberg, 13 HASTINGS COMM. & ENT. L.J.

at 463 (“[Under Nelson,] the original publisher can be “'reliable periodicals'” or “'newspapers,'” not just wire services.”) (emphasis in the original).

78 Nelson, 667 F. Supp. 1468.79 Jennifer L. Del Medico, “Are Talebearers Really as Bad as Talemakers?: Rethinking Republisher Liability in an

Information Age,” 31 FORDHAM URB. L.J. 1409, 1412 (2004) (arguing for a presumption in favor of republication that may be defeated only by a showing of actual malice).

80 Troiano, 55 AM. U. L. REV. at 1465 (“[D]efamatory speech should not be protected in some instances just because the defamer disseminated the message through one medium, but then not protected when the same speech is transmitted through a different medium.”); Jae Hong Lee, Note, “Bazel v. Smith & Barrett V. Rosenthal: Defamation Liability for Third-Party Content on the Internet,” 19 BERKELEY TECH. L.J. 469, 488 (2004) (“[T]he Internet, while unique in many respects, is not so exceptional as to require a complete departure from traditional defamation law.”); Brittan Heller, Note, “Of Legal Rights and Moral Wrongs: A Case Study of Internet Defamation,” 19 YALE J.L. & FEMINISM 279 (2007) (“[W]hat is impermissible in the real world should not be permitted in the virtual world.”).

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Commentators ask why we should let an online speaker get away with doing something that we punish

a traditional speaker for doing offline. The answer is that people are doing things online that differ

fundamentally from anything has been done before – and, moreover, that the average online speaker

and the average traditional speaker are different entities. In order to adequately protect free speech, the

law must recognize that most online speakers are not traditional media entities and are not engaged in

traditional-media-like speech.81

Reproduction of third-party material on the Internet is not the same as republication under

traditional media law. That is not to say that no instances are the same; when the New York Times

reproduces a third-party statement in its online edition the situation is little different than when the

Times does so in its print edition. Instead, the difference between online and offline reproduction lies

in the sheer variety of online reproduction and the altered balance of power across the distribution of

online speech. While citizen speech was the exception in the traditional media world, it is the rule on

the Internet.

Offline speech is dominated by “a relatively small number of powerful speakers.”82 Aside from

the occasional activist pamphlet or other form of citizen publication, offline speech comes from

newspapers, magazines, broadcast organizations, publishing agencies, and other traditional media

entities. The average traditional speaker thus can be imagined as an average-sized traditional media

entity. Similarly, the bulk of traditionally reproduced speech takes one of two primary forms. One

occurs when a media entity's publication of a third-party statement within an article or broadcast, such

as when a magazine article includes a quote from a politician. The other occurs when an organization

republishes an entire third-party speech work, such as when a local newspaper reprints an article from a

national paper.

81 Aaron Perzanowski, Comment, “Relative Access to Corrective Speech: A New Test for Requiring Actual Malice,” 94 CAL. L. REV. 833, 836 (2006) (“[C]urrent defamation doctrine draws no distinction between [online speakers] ... and traditional media outlets .... [It] accounts for variety among plaintiffs but ignores diversity among possible defendants.”).

82 Lyrissa Barnett Lidsky, “Silencing John Doe: Defamation and Discourse in Cyberspace,” 49 DUKE L.J. 855, 894 & n.204.

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Because of this homogeneity, traditional reproduction law sensibly propagates a standard of

liability based upon the attributes of mainstream media speakers and speech. When the third-party

speech at issue is defamatory, the law assumes that these forms of reproduction have insufficient value

to counterbalance the harmed suffered by defamed individuals, except in situations where a particular

privilege is warranted.83 The law assumes that free speech as a whole will not be unduly restricted by

liability because the bulk of traditional speakers – the traditional media – have enough resources and

legal savvy such that the threat of suit will not unduly deter them from reproducing information.

Online speech, in contrast, is not so narrow. The average online speaker is, essentially, the

average citizen.84 Traditional media entities are by far the minority online. Blogs alone vastly

outnumber traditional media entities: blog tracking and rating website Technorati monitors 112.8

million blogs,85 and it is doubtful that number encompasses all blogs. Added to this are speakers such

as individuals with personal home pages, posters on online discussion boards, news aggregators, and a

host of other examples. In comparison, there were approximately 43,000 magazines86 and 10,000 daily

newspapers87 in print worldwide as of 2005 – and not all of these publications have an online presence.

To put those numbers in perspective, the country of Iran alone is home to 60,000 routinely updated

blogs.88

When applied to the realm of online speech, the assumptions made by traditional reproduction

83 See section II(b) of this paper, supra.84 For instance, blogs “are typically run by small, unincorporated individuals.” Sean P. Trende, “Defamation, Anti-

SLAPP Legislation, and the Blogosphere: New Solutions for an Old Problem,” 44 DUQ. L. REV. 607, 608 (2006).85 http://www.technorati.com/about/ (last accessed April 04, 2008).86 IBM Institute for Business Value, Paper, “The End of Television as We Know It,” p.3 (2006) (available at http://www-

935.ibm.com/services/us/index.wss/ibvstudy/imc/a1023172?cntxt=a1000062) (citing unnamed International Federation of the Periodical Press report).

87 World Association of Newspapers, Report, “World Press Trends 2006” (final ed.) (Jan. 2007) (available at http://www.wan-press.org/IMG/doc/UPDATE-WPT2006-2-Final.doc); World Association of Newspapers, “Newspaper Growth Defies Conventional Wisdom,” http://www.wan-press.org/article12949.html (Feb. 06, 2007) (noting that the number of “paid-for” daily newspapers exceeded 10,000 for the first time; however, the combined number of paid-for and free daily newspapers is nearly identical, according to the statistics from “World Press Trends 2006.”).

88 John Kelly & Bruce Etling, Paper, “Mapping Iran's Online Public: Politics and Culture in the Persian Blogosphere,” The Berkman Center for Internet & Society at Harvard Law School, Research Publication No. 2008-01 at pg. 2 (available at http://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/Kelly&Etling_Mapping_Irans_Online_Public_2008.pdf).

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law are false. Online reproduction as a class has more value to the public dialogue than does traditional

reproduction, even when the reproduction is defamatory.89 Equally importantly, speech as a whole

would suffer greatly if online reproduction liability were the rule, because the citizens that make up the

majority of online speakers are far more likely than traditional media entities to self-censor their speech

for fear of lawsuit.90

b. THE UNIQUE BENEFITS OF ONLINE SPEECH AND ONLINE REPRODUCTION

Immunity from liability for online reproduction is appropriate first and foremost because online

reproduction offers significant value to society even when defamatory. Defamatory traditional

reproduction, though generally considered to be of little value, is valuable enough to warrant protection

in certain circumstances;91 this is only more true of defamatory online reproduction. In order to fully

consider this point, it is worth exploring both the benefits of online speech as a whole and the particular

benefits of online reproduction.

The fact that the Internet has fundamentally expanded and enriched the realm of human

communications is so well-recognized that Congress has codified it into law.92 Online speech has not

merely expanded the public dialogue – it created the public dialogue as we know it today. The Internet

has produced unique forms of speech that offer unprecedented depth, breadth, diversity, timeliness,

connectivity, community-building, and wide-ranging access both in terms of citizens' ability to engage

in speech activities and their ability to obtain information.93

The Internet allows for the dissemination of views and issues lacking the popular interest to

support publication in mainstream media publications,94 and it allows for the dissemination of views

89 See sections III(b) through IV of this paper, infra.90 See section IV of this paper, infra.91 See section II(b) of this paper, supra.92 47 U.S.C. § 230(a)(1-3) (“The Internet] represent[s] an extraordinary advance in the availability of educational and

informational resources to our citizens.” ) (“The Internet ... offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”).

93 See generally DAN GILLMOR, WE THE MEDIA (paperback ed.) (2006).94 See Susan W. Brenner, “Criminalizing 'Problematic' Speech Online,” 11 No. 1 J. INTERNET L. 3, 3 (2007) (“Speech that

would never have been published in an era when publication venues were dominated by the mainstream media (MSM)

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from speakers who previously had no outlet for their speech. Though the ubiquity of citizen speech

makes it easy to forget, it was not long ago that there was little opportunity for the speech of ordinary

citizens to reach the public at large in any meaningful way. Citizens could do little else other than

“stand on a corner and rant, post a sign, or write a newsletter, or pen a letter to the editor.”95 Now, any

citizen with access to the Internet can disseminate their views near-instantaneously in a format that

allows for global access. Conversely, any citizen with Internet access can seek out the views of other

citizens at will.

Online reproduction is inextricably intertwined with these speech benefits. The Internet

community is a linking and quoting culture; online communications are based in large part on the

process of spreading information from other sources. In particular, commentary on third-party speech

and action is the lifeblood of the online public dialogue.96

Online commentary97 builds an immediate and robust public discussion around events. Once a

single actor introduces a piece of information into the online realm, online speakers begin to discuss

and disseminate it. They post links to the information on forums along with their opinions on the

matter. They cut-and-paste portions of the information directly into their blog posts, allowing them to

comment on each portion while providing the original alongside for reference. Through reproduction,

online speakers can undertake an in-depth critique of information confident that any reader unfamiliar

with the topic can familiarize themselves with the information in a matter of moments.

The “cut-and-paste” and “linking” styles of commentary are unlike anything that has existed

before. Traditional examples of commentary, such as op-ed columns and letters to the editor, are

can be widely disseminated by anyone who is so inclined.”). See also section IV(c) of this paper, infra.95 WE THE MEDIA at 46.96 See WE THE MEDIA at 194 (“'Most blogs involve linking to someone else's work and then commenting on it.'”) (quoting

Glenn Reynolds, professor of Internet law at the University of Tennessee and an influential political blogger as “Instapundit”).

97 The term “online commentary” here encompasses a varied series of online speech activities that utilizes reproduced content as a tool to inform public discourse. Online commentary occurs when citizens use the Internet to create a discussion around the statements of others. There ar countless variations online commentary, with new forms of technology and new types of online speech activities opening up new variations continuously.

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woefully inadequate analogues. These allow only a trickle of public sentiment to infiltrate the media

world and offer little capacity for back-and-forth discussion.

Despite the online medium's premium on speed, online speech and reproduction also offers the

opportunity for more depth of commentary and discussion than the traditional media in some

situations. On issues that do not require timely action, online speakers can devote time to additional

research not possible under the deadline pressures of the traditional media.98 Online speakers can take

advantage of the ease of communication to collaborate with other speakers in order to produce detailed

content. This is true of “newsworthy” topics as well as topics ignored by the traditional media.99 The

increased accessibility allows individuals with particularlized knowledge on specific subjects to discuss

those subjects for the benefit of all.100

For an example of online commentary in action, imagine a citizen who reads a local newspaper

article presenting accusations that her neighbor has engaged in illicit activities. The citizen is sure her

neighbor is innocent, and she has evidence. In the pre-Internet era, she could do little but alert the

newspaper and hope that it would print a follow-up article, issue a correction or retraction, or perhaps

allow her to write a letter to the editor. The public dialogue on the subject was one-sided and subject to

the newspaper's decision on how to proceed. The public's input generally was relegated to

neighborhood gossip.

But our citizen has more options. Immediately after reading the article she puts up a blog post

that scrutinizes the newspaper's evidence. She quotes passages from the article and offers a point-by-

point refutation. Soon, as many community members have learned about her information as had read

the news article – some who have read the blog themselves, some who have heard about it from others,

and some who have read about it in the resulting comments on the newspaper's web site.

98 WE THE MEDIA at 139.99 Lidsky, 49 DUKE L.J. at 897 (“The Internet allows people to transcend the limits of geography in order to find those

with similar interests, and no topic is too obscure to generate Internet discussion.”).100 D. Wes Sullenger, “Silencing the Blogosphere: A First Amendment Caution to Legislators Considering Using Blogs to

Communicate Directly With Constituents,” 13 RICH. J.L. & TECH. 15, 67 (2007) (“Blogs democratize journalism by letting the People speak. This results in dissemination of expert opinions the public otherwise would not hear.”).

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Regardless of whether the community members believe the citizen or the newspaper, a more

comprehensive and connected public dialogue arises about the issue. Though the net result is an

increase in the dissemination of the defamatory material, the public is much better able to determine the

truth of the accusations than when the newspaper article was their sole reference. As Justice Holmes

famously said, “the best test of truth is the power of the thought to get itself accepted in the competition

of the market.101 With online speech, the public can achieve a healthy competition of ideas that

previously was unavailable when there was little middle ground between person-to-person contact and

traditional media broadcast.

It is true that the above example sits on the rosier side of the spectrum of Internet speech; a

reproducer just as easily could have heaped additional defamatory accusation upon the target

individual. This choice of example was intentional: under a strict interpretation of traditional

reproduction law, the Good Samaritan in the above example would be just as liable for defamation as

the newspaper that printed the defamatory article and the reproducer that added further insult. In such

a case, all discussion on an issue is suspended and the defamatory content lingers until a court of law

refutes it.

Suppression of public discussion is the central harm of online reproduction liability. Liability

for traditional reproduction is not as problematic, because it has less suppressive effect on speech. As

the following subsection discusses, the characteristics of online speech and speakers are such that

reproduction liability will and does have an unacceptable restrictive effect on citizens' right to speak.

c. FUNDAMENTAL DIFFERENCES BETWEEN ONLINE AND OFFLINE SPEAKERS

As mentioned above, traditional reproduction law assumes controversies generally will arise

101 Abrams v. U.S., 250 U.S. 616, 630 (1919) (“[T]he ultimate good desired is better reached by free trade in ideas ... [thus] the best test of truth is the power of the thought to get itself accepted in the competition of the market.”) (Holmes, J., dissenting). See also Sullivan, 376 U.S. at 270 (“The First Amendment, said Judge Learned Hand, ‘presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be, folly; but we have staked upon it our all.’”) (quoting United States v. Associated Press, 52 F.Supp. 362, 372 (S.D.N.Y. 1943)).

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around the speech of traditional media speakers. Traditional reproduction law thus features a balancing

of free speech and defamatory harm based upon the minimal extent that the threat of liability would

restrict the speech of traditional media entities. But if we accept that the totality of online speakers is

composed differently from the totality of traditional media speakers, we must also accept that liability

might affect online speech differently than traditional speech. Compared to the average traditional

media speaker, the average Internet speaker is both less likely to be capable of satisfying traditional

reproduction law's requirements without suffering undue burden and more likely to be dissuaded from

speaking because of the threat of suit.

1. ABILITY TO ASCERTAIN THE DEFAMATORY NATURE OF SPEECH

Under traditional media law, reproducers are treated essentially the same as original speakers

because they “adopt” third-party statements as their own when they choose to reproduce them.102 This

reflects the editorial practices of the traditional media, where reproduced speech typically goes through

a review process carried out by media professionals before publication. Traditional media entities

make an effort to ascertain the truth of a statement – or, alternatively, they make an effort to ascertain

the trustworthiness of the statement's source or the original publisher. Once they are satisfied, they

reproduce the statement with their implied assurance of the statement's truth. Opponents of

reproduction immunity argue that online speakers are equally capable of making such

determinations.103 For several reasons, however, it would be an undue burden to require online

reproducers to make such determinations.

In general, traditional media outlets produce material well in advance of publication. Few

substantive newspaper articles are completed without a buffer of at least a number of hours –

102 KENT D. STUCKEY, 2 INTERNET AND ONLINE LAW 32 (1996) (“Having reproduced and disseminated the defamatory statements with knowledge of what they say, print publishers are characterized by the courts as 'republishers' who have 'adopted' the statements as their own.”) (citing Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1298 (D.C. Cir. 1988)).

103 See, e.g., Troiano, 55 AM. U. L. REV. at 1479-80 (“[D]etermining what is and what is not a defamatory statement is mainly a matter of common sense. Because bloggers individually choose what information to publish on their blogs, bloggers could easily control what information to omit based on a message's defamatory nature.”).

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sometimes a day or more – before printing, not counting the time during which the article is being

developed. Magazine articles and books may be completed months before they are published. This

gives an ample amount of time for editing, research, and contemplation, each of which increases the

amount of investigation into truth and defamatory character available before publication. Traditional

speakers typically also have the benefit of editors and other “second and third set[s] of eyes,” which

lowers the risk of publishing defamatory information.104 The average online speaker, in contrast,

typically operates on an abbreviated timeline. The lack of editorial bureaucracy allows citizens to

respond to events in a uniquely timely manner, but it also reduces the opportunity for investigation into

the truth of statements they reproduce. Requiring online reproducers to engage in a traditional-media-

like editorial process would do much to curtail the immediate dialogue that arises because of online

speech.105

Even if required to do so, online speakers as a class could not manage the “Herculean

assignment” of verifying the facts contained in every piece of information they plan to reproduce.106

Defamation claims are based upon assertions that are problematic only if false, but it rarely will be

practical for a citizen speaker to independently verify facts contained in third party statements. In this

way, citizens are extreme examples of the “small publications” that we do not expect to independently

verify statements they republish from reputable services.107 Defamatory nature is difficult enough to

ascertain for professional media organizations, which invest a considerable amount of time and money

into preventing and fighting defamation suits. For the average citizen, the burden is even higher.

One can consider this issue in the context of negligence, which is generally the minimum

requirement for defamation liability.108 A traditional media entity could be found negligent if it failed

104 WE THE MEDIA at 193-4 (quoting First Amendment lawyer David L. Marburger).105 Barrett, 146 P.3d at 525 (Ca. 2006).106 Id. (“Requiring [online reproducers and speakers] to account for the nuances of common law defamation, and all the

various ways they might play out in the Internet environment, is a Herculean assignment that we are reluctant to impose.”).

107 See discussion of the wire service defense, section II(b)(3) of this paper, supra.108 A speaker must at least negligently disseminate a defamatory statement under the Gertz standard for defamation

targeted at private individuals. See Gertz, 418 U.S. 323.

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to contact the original source of a statement, seek out additional sources, judge the trustworthiness of

these sources, conduct further investigation into the events surrounding the statement, or otherwise

attempt to ascertain the truth of the statement. To consider an average online speaker negligent for not

undertaking such activities would be simply ludicrous. Few individuals have the time or resources to

engage in such activities at all, much less to do so before reproducing any content on a blog or forum.

Worse, the average online speaker likely does not know the intricacies of defamation law, so she would

not know to take these precautions in any case.109

Because of these factors, online reproduction liability would force online speakers to refrain

from reproducing or discussing any third-party statements they could not back up with their own

evidence. Online speakers would tend to restrict their treatment of third-party statements to those they

can independently determine are factually true or that are so non-controversial as to negate the

likelihood of defamation claims. The result would be an unacceptable restriction of speech with great

costs to the public dialog.

2. DEFAMATION LIABILITY'S ENHANCED SUPPRESSIVE EFFECT ON ONLINE SPEECH

Given the complexities of defamation law, any defamation lawsuit is “a daunting and expensive

challenge.”110 The peculiarities of defamation law allow juries to award large judgments without proof

of any harm.111 Because of the high costs involved in even the initial stages of legal proceedings,112 the

mere threat of a lawsuit may have as much deterrent effect on speech as the fear of an adverse

109 Jennifer L. Peterson, “The Shifting Legal Landscape of Blogging,” 79-MAR WIS. LAW. 8, 10 (2006) (”[B]loggers ... almost universally are not ... familiar with basic legal issues.”).

110 Barrett, 146 P.3d at 525.111 Gertz, 418 U.S. at 349 (“Juries [in defamation cases] may award substantial sums as compensation for supposed

damage to reputation without any proof that such harm actually occurred. [This] compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms.”).

112 To give an example, researchers as long as 20 years ago estimated the average attorneys' fees for media defamation suits to be from over $90,000 to as high as $150,000, though smaller publishers' fees tend to fall in the lower range. See Roselle L. Wissler, “Media Libel Litigation: A Search for More Effective Dispute Resolution,” 14 LAW & HUM. BEHAV. 469, 472 (1990) (“Attorneys' fees to defend a media libel suit are estimated to average $96,000.”); Seth Goodchild, “Media Counteractions: Restoring the Balance to Modern Libel Law,” 75 GEO. L.J. 315, 322 (1986) (“[L]egal fees are estimated to average $150,000 per defamation case.”) (“The chief [chilling effect] culprit is extensive discovery involving an in-depth examination of a defendant's editorial process.”).

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judgment.113 The punitive or deterrent effects of these costs sometimes are the primary motivation for

plaintiffs to file suit; a favored tactic of defamation plaintiffs is to burden defendants with an

“unnecessarily protracted and tangential” discovery process intended more to punish than to produce

information.114 Fear of such burdens produces a “cloud of censorship” that leads speakers to report less

aggressively or to avoid controversial topics.115

Litigation is as not as much of a burden on traditional media speech, given that professional

media speakers are better positioned to both avoid the risk of litigation and to deal with it when it

comes.116 Large media entities often will include litigation expenses in their budget in addition to

having in-house counsel who have experience with defamation law. Individual speakers within

traditional media entities have a certain amount of protection from fear of suit because they operate

under the knowledge that lawsuits against them almost certainly will be handled by their

113 Washington Post v. Keogh, 365 F.2d 965, 968 (D.C. Cir. 1966) (granting summary judgment to defendant newspaper in libel action) (“[The] threat of being put to the defense of a lawsuit . . . may be as chilling to the exercise of First Amendment freedoms as fear of the outcome of the lawsuit itself.”); Barrett, 146 P.3d at 525 (“We reject the argument that the difficulty of prevailing on a defamation claim mitigates the deterrent effect of potential liability.”); McEvoy, 17 HASTINGS CONST. L.Q. at 505 (“Although most observers agree 'that the probability of an adverse judgment is small,' the price of [defamation lawsuits] can be very high, not only in terms of attorney's fees and general litigation expenses, but also through the disruption of families, physical illness and emotional upheaval.); Goodchild, 75 GEO. L.J. at 315-6 (1986) (“Because defamation cases [are] so expensive to defend, the possibility of high defense costs ... exerts significant pressure on news organizations to engage in self-censorship rather than risk incurring staggering legal fees.”).

114 See Herbert v. Lando, 441 U.S. 153, 205-206 (1978) (“Plaintiffs' pretrial maneuvers [in defamation cases] may be fashioned more with an eye to deterrence or retaliation than to unearthing germane material.”) (Marshall, J., dissenting).

115 M. Linda Dragas, Comment, “Curing a Bad Reputation: Reforming Defamation Law,” 17 U. HAW. L. REV. 113, 121-2 (“An increase in lawsuits seeking damages ... could hobble the media and have a chilling effect on freedom of expression. The cloud of self-censorship might hover ominously over newsrooms, potentially resulting in less aggressive reporting and in the avoidance of controversial topics.).

116 Sarah Trombley, “Visions and Revisions: Fanvids and Fair Use,” 25 CARDOZO ARTS & ENT. L.J. 647 (2007) (“[A large corporation] may be able to withstand a lawsuit by a major media conglomerate – the ordinary citizen cannot.”) (discussing aggressive copyright suits' chilling effect on citizens' speech and creative expression).

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organizations.117 Even so, the threat of suit has some deterrent effect on the media;118 the effect is

exacerbated when applied to less powerful speakers.119

One can conceptualize the preclusive effect of defamation liability as a continuum. At one

extreme are the largest media entities, who are the least dissuaded by the threat of suit. These speakers

may choose to shelve speech only when it seems blatantly defamatory; otherwise they will err on the

side of reproduction so long as the resulting lawsuits do not surpass whatever level of expense they find

acceptable. This results in the dissemination of a wide scope of controversial speech. Smaller

traditional media entities will set the bar somewhat lower – for instance, refusing to reproduce some of

the more contentious examples of content that could be defamatory if false. The key variable for these

speakers may be the amount of corroborating evidence available, such as the number of sources who

can corroborate the statement. Farther down the continuum, as media entities get smaller and have

fewer resources, entities likely will decrease their cutoff level of risk for a statement's defamatory

nature and increase their requirement of supporting evidence, correspondingly reducing the amount of

controversial speech that they disseminate.

117 Indeed, it is exceedingly rare that a publication does not cover the cost of actions against its representatives. For example, see the public outcry that arose when a judge mandated that neither USA Today nor anyone else could pay reporter Toni Locy's fines after Locy refused to reveal the identity of her sources in an investigation. This was the first time a judge ever has ordered that an employer could not pay a reporter's contempt fines. See David Ardia, “CMLP Joins Other Media Organizations to Oppose Contempt Order Against Journalist in Anthrax Case,” Citizen Media Law Project, March 12, 2008, http://www.citmedialaw.org/blog/2008/cmlp-joins-other-media-organizations-oppose-contempt-order-against-journalist-anthrax-case (discussing Hatfill v. Mukasey, No. 03-01793 (D. D.C. March 07, 2008) (order holding defendant Locy in contempt for refusal to reveal sources)). In the interest of full disclosure, note that this paper's author has been and is at the time of publication a volunteer, clinical student, or part-time employee of the Citizen Media Law Project.

118 The Supreme Court has discussed defamation suits' chilling effect on media defendants in the following cases (see Lidsky, 49 DUKE L.J. at n.173): Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991); Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990); Harte-Hanks Communications v. Connaughton, 491 U.S. 657 (1989); Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986); Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985); Keeton v. Hustler Magazine, Inc., 465 U.S. 770 (1984); Wolston v. Reader's Digest Ass'n, 443 U.S. 157 (1979); Hutchinson v. Proxmire, 443 U.S. 111 (1979); Herbert v. Lando, 441 U.S. 153 (1979); Time, Inc. v. Firestone, 424 U.S. 448 (1976); Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974); Old Dominion Branch No. 496, Nat'l Ass'n of Letter Carriers v. Austin, 418 U.S. 264 (1974); Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971); Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971); Time, Inc. v. Pape, 401 U.S. 279 (1971); Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971); Greenbelt Coop. Publ'g Ass'n v. Bresler, 398 U.S. 6 (1970); St. Amant v. Thompson, 390 U.S. 727 (1968); Curtis Publ'g Co. v. Butts, 388 U.S. 130 (1967); Rosenblatt v. Baer, 383 U.S. 75 (1966).

119 Lidsky, 49 DUKE L.J. at 890-1 (“Media defendants identify litigation costs as a primary source of the chilling effect, and these costs will fall even more heavily on ... nonmedia defendants .... [N]onmedia defendants are unlikely to have enough money even to defend against a libel action ....”).

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At some point along the continuum, the fear of suit combined with a lack of resources begins to

prevent the reproduction of speech that may not seem defamatory at first glance.120 Given the unsettled

nature of defamation law, it can be difficult to predict what sorts of statements could result in liability.

Past a certain point on the continuum the likelihood of liability becomes irrelevant. Defending a

lawsuit in any capacity is a significant burden on these speakers; the more risk-averse among their

number will choose not to reproduce any speech at all for fear of suit if faced with a general standard of

reproduction liability.

For speakers at this farther end of the continuum, even obviously meritless defamation claims

will chill the average online speaker's speech.121 Allegedly wronged individuals take advantage of this

fact by using lawsuits to threaten online speakers.122 A particularly troubling example is the growing

phenomenon of plaintiffs who file defamation suits aimed specifically at suppressing citizens' speech.

Known as Strategic Lawsuits Against Public Participation (“SLAPPS”), these suits use the threat of

burdensome litigation as weapons against speech with which the filers disagree.123 These suits have

proven to be effective as a tool for punishing and preventing speech.124

120 See n.122, infra.121 Barrett, 40 Cal.4th 33, 57-8 ([E]ven when a defamation claim is 'clearly nonmeritorious,' the threat of liability

'ultimately chills the free exercise of expression.') (citing Baker v. Los Angeles Herald Examiner, 42 Cal.3d 254, 268 (1986)). See also Time, Inc. v. Hill, 87 S.Ct. 534, 542-3 (1967)

122 For background, visit the Citizen Media Law Project's database of legal threats and legal actions against online speakers at http://www.citmedialaw.org/database. In many cases the threatened citizen chose to remove the speech rather than face suit, even when the claims obviously were non-meritorious. Also see WE THE MEDIA at 195 (“[T]hreats against bloggers abound. [And] [c]ommenters on Internet forums have had [even] more trouble.”).

123 Danielle M. Conway-Jones, “Defamation in the Digital Age: Liability in Chat Rooms, on Electronic Bulletin Boards, and in the Blogosphere,” SK102 ALI-ABA 63, 87 (2005) (“Strategic Lawsuit against Public Participation are lawsuits that 'masquerade as ordinary lawsuits' but are brought to deter common citizens from exercising their political or legal rights or to punish them for doing so.”) (quoting Batzel v. Smith, 333 F.3d 1018, 1023-24 (9th Cir. 2003)).

124 Mark Jackson, Note, “The Corporate Defamation Plaintiff in the Era of SLAPPs: Revisiting New York Times v. Sullivan,” 9 WM. & MARY BILL RTS. J. 491, 492 (2001) (“Intimidation lawsuits have become a major weapon in the corporate arsenal. Using defamation suits against civic-minded citizens, groups, and publishers, corporations have drastically squelched citizen and news media involvement. In this way, the defamation suit has become a tool to ward off public criticism and oversight.”); M. Linda Dragas, Comment, “Curing a Bad Reputation: Reforming Defamation Law,” 17 U. HAW. L. REV. 113, n.51 1995 (“Increasing numbers of Strategic Lawsuits Against Public Participation (“SLAPPs”) indicate that governmental and nongovernmental plaintiffs recognize the intimidating power of filing libel suits against the media and private citizens who voice opposition to their actions.”); Bill Johnson's Rests., Inc. v. NLRB, 461 U.S. 731, 740-41 (1983) (“A lawsuit no doubt may be used as a powerful instrument of coercion or retaliation . . . . [and] the chilling effect upon willingness to engage in protected activity is multiplied where the complaint seeks damages . . . .”).

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Defamation law does little to protect speakers from this abuse of the law.125 Some states have

enacted so-called anti-SLAPP legislation, which allows defendants to dismiss some meritless suits at an

early point in the litigation process.126 Anti-SLAPP statutes also sometimes allow defendants to

recover costs and fees from plaintiffs after successfully obtaining dismissal.127 However, only 24 states

currently have anti-SLAPP statutes128 and there is no federal anti-SLAPP statute.129 The existing

statutes are plagued with exceptions that render them less useful.130 While anti-SLAPP statutes may

help some defendants to dismiss suits in the early stages, they do little to alleviate the chilling effect

arising from the cost of even those early stages of suit.131

The chilling effect of suit is compounded further by differences between online and offline

speech. Because online speech becomes accessible from anywhere in the planet as soon as it hits the

Internet, the law has difficulty determining which jurisdictions are appropriate for a given online-

speech-focused dispute. Plaintiffs looking to further punish defendants can take advantage of this by

engaging in forum shopping.132 Facing suit in foreign jurisdictions can exacerbate online speakers'

ignorance of defamation law by forcing them to cope with differences between their home jurisdiction's

law and the law of a different state or country. It also entails increased expenses because of the cost of

defending a suit outside one's jurisdiction, including travel costs and lost wages due to increased time

away from home.

Similarly, plaintiffs can use the legal process to strip online speakers of their ability to engage in

125 Seth Goodchild, “Media Counteractions: Restoring the Balance to Modern Libel Law,” 75 GEO. L.J. 315, 316 (1986) (“[D]efamation law ... provides little protection from nuisance suits.”).

126 Conway-Jones, SK102 ALI-ABA at 87. See, e.g., Cal. Civ. Proc. Code § 425.16 (allowing defendants claiming protection against SLAPP suits to ask for a special motion to strike on the pleadings); Mass. Gen. Laws Ann. Ch. 231 § ((allowing a similar “special motion to dismiss”).

127 See, e.g., Cal. Civ. Proc. Code § 425.16; Mass. Gen. Laws Ann. Ch. 231 § 59H. 128 Daniel M. Waggoner, “A Post-Borat Reprieve on Reality-Based Programming,” 25-FALL COMM. LAW. 1, 20 (2007).129 See Trende, 44 DUQ. L. REV. at 639 (calling for federal anti-SLAPP statute as a possible solution to the problem of

nuisance suits).130 See LAWRENCE SOLEY, CENSORSHIP, INC. 95-102 (2002) (comparing various anti-SLAPP statutes).131 See Sharlene A. McEvoy, “The Big Chill”: Business Use of the Tort of Defamation to Discourage the Exercise of First

Amendment Rights, 17 HASTINGS CONST. L.Q. 503, 503 (1990) (“While many of these actions fail at the earliest stages of the civil process, they have the effect of chilling public participation.”).

132 See WE THE MEDIA 197-99.

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anonymous speech.133 The ability to speak anonymous is a key benefit of online speech, because it

allows citizens to engage in speech activities that they would not otherwise have undertaken due to fear

of reprisal – such as criticisms of the government, corporations, or their workplace. The existence of

online reproduction liability and permissive subpoena procedures would allow plaintiffs to discover the

identity of online speakers without valid defamation claims.134 Absent protection from such meritless

revelation, the chilling effect suit will suppress the benefits of online speech. As the following section

shows, many other differences between online and offline speech provide evidence as to why only a

standard of absolute immunity would prevent these chilling effects.

IV. THE NEED FOR A BRIGHT-LINE RULE OF IMMUNITY

Chilling effects can be prevented, without undue harm to allegedly defamed parties, through a

standard of culpability sufficiently high to immunize the activity except where the activity has little or

no redeeming constitutional value.135 As discussed the preceding section of this paper, online

reproduction has significant constitutional value even when defamatory because of its benefits to the

public dialogue. Since online reproduction has value even when defamatory, absolute immunity is

appropriate.

Because the chilling effect on online speech arises from the threat of suit, rather than from the

suit itself, absolute immunity is the only way to ensure that valuable speech is protected. So long as

plaintiffs have exceptions to allege when bringing suit, the suit can proceed to at least the early stages,

entailing significant burden upon the defendant. Contrariwise, immunity would preclude this

opportunity. Prospective plaintiffs then would be on notice that their suit would have no chance of

survival. Few plaintiffs would undertake the burden of suit themselves with this knowledge,

133 Lidsky, 49 DUKE L.J. at 889 (“[L]ibel suits may chill simply by threatening to reveal the identities of those who speak their minds online. [I]nternet users will come to recognize the ease with which their online anonymity can be stripped simply by the filing of a libel action, and they will censor themselves accordingly.”).

134 See id.135 Universal City Studios, Inc. v. Reimerdes, 111 F.Supp.2d 294, 340 (S.D.N.Y., 2000), affirmed by 273 F.3d 429 (2d.Cir.,

2001) (describing the immunity rationale under defamation law in order to show the appropriateness of a similar rule for copyright actions).

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particularly given the possibility of sanctions filing obviously meritless claims.

With this basic principle in mind, the remainder of this section will discuss various ways in

which immunity could be limited and will show why each of them would unduly restrict the online

dialogue.

a. PROFESSIONAL VERSUS NON-PROFESSIONAL SPEAKERS

Given that the argument in favor of immunity focuses to such an extent on the differences

between professional and non-professional speakers, some might propose a standard that would

immunize citizen online speakers while leaving liability in place for online speakers who represent the

traditional media. However, debates over shield laws,136 open records laws,137 and other speech-related

legal issues have shown that legal distinctions between professional and non-professional media are

unworkable.138 There is not and likely never will be a feasible bright line distinction between these

classes of speakers. As a result, any attempt to condition reproduction liability on the speaker's

professional status would further the chilling effect because it would make it difficult for a wide range

of online speakers to predict whether immunity would extend to them, leading them to restrict their

speech activities.

Previous approaches to speaker distinction have looked to the percentage of income a speaker

receives from speech activities or139 the speaker's affiliation with media entities.140 None of these

formulations have achieved widespread support. One problem is that they are based on the outdated

136 See generally Mary-Rose Papandrea, “Citizen Journalism and the Reporter's Privilege,” 91 MINN. L. REV. 515 (2007) (arguing for a journalist shield law definition of “journalist” based upon the individual's speech activities rather than identity or vocation).

137 See generally Zrinka Rukavina, Note, “Re-pressing the Internet: Journalists Battle for Equ al Access,” 13 DEPAUL-LCA J. ART & ENT. L. 351 (2003) (examining various definitions of “the press” or “journalist” in the context of open records laws).

138 Lidsky, 49 DUKE L.J. at 907 (“A media/nonmedia distinction would draw unsound and unworkable status distinctions among speakers ....”) (discussing a reverse scenario in which only professional speakers would receive certain First Amendment protections).

139 See, e.g., DEL. CODE ANN. tit 10, § 4320(4) (1999) (shield law statute covering individuals who make their “principal livelihood by ... obtaining, or preparing information for dissemination” and individuals who spend at least 20 hours per week engaging in those activities).

140 See, e.g., ARIZ. REV. STAT. ANN. § 12-2237 (2003) (shield law statute covering “[any] person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper, radio or television station ....”).

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view that there is a class of speakers – the media – whose speech is easily distinguishable from the

speech of ordinary citizens.141 More recently commentators have been arguing for standards based

upon the speakers' actions rather than their profession or income.142

At best, accepting any of these tests would result in a standard in which classifications would

require an evidence-intensive court determination of the speaker's status. If percentage of income is set

as the determining factor, it is easy to imagine situations that would present problems. For instance,

consider a regular USA Today contributor who has a day job as an attorney and merely writes in her

spare time. If affiliation with a traditional media entity is the key, the same contentious decisions

would arise around which speakers and entities would be covered; consider online-only publications

that have a full-time staff and significant influence in the media.143 An action-based standard would

entail a difficult, case-by-case determination of which activities constituted protected speech. The

added litigation over this issue would increase the burden involved in reproduction suits. Worse, it

would strip the immunity protection of its ability to preclude chilling effects on speech by allowing

essentially any defamation claim to continue at least until a determination of professionalism is made.

At worst, such a standard might cause courts to institute a “sliding scale” determination of

reproduction liability. If so, each individual speaker would fall somewhere on the continuum of

professionalism, necessitating a balancing of factors unique to every case. This idea might seem to

have benefits: it would allow a determination of liability more in keeping with the individual speaker's

level of sophistication and resources. However, such a standard would change reproduction liability

into a tumultuous cloud of possible classification in which no speaker would know how to situate

141 This idea is troublesome in its own right, as failing to treat online individuals as valuable speakers could lead to a number of other restrictions on free speech. See generally Papandrea, 91 MINN. L. REV. 515; Lidsky 49 DUKE L.J. at 907.

142 See note 136, supra.143 For example, Slate magazine (www.slate.com), a The Washington Post Company online-only publication, has

approximately 40 staffers. The site receives over five million unique visitors per month and regularly is referenced by traditional publications. Data on staffers and unique visitors was taken from Slate's “Who we are” (www.slate.com/id/117517/) and “Advertising info” (www.slate.com/id/2078020/) pages and was current as of May 09, 2008.

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themselves. The highly subjective sliding scale process would leave classification up to the whim of

the court and the ability of opposing counsel to spin the facts one way or the other. Speaker

classification could end up as a mirror of the vague public figure doctrine – courts could find that

certain speakers are not professional media speakers generally but are acting as one in a given scenario,

or that speakers discussing certain “public interest” topics should receive a more professional-media-

like level of protection as compared to other topics.144 The net result would be a greater amount of

chilled speech, given that speakers would be left to guess how liability might affect them.

A rule treating all online speakers the same is the only standard that is both workable in practice

and capable of protecting speech from undue suppression. A determination of whether disputed content

was or was not published online requires only the most cursory analysis. Restricting liability to offline

sources reducing the possibility of chilling speech to minimal levels, as it makes liability possible only

for speakers with the means of publishing offline speech. The vast majority of speakers with that

capability are professional media organizations or other speakers that are better equipped to deal with

litigation and historically have been expected to maintain a higher level of control over their content.

Commentators point out that an online/offline distinction – the distinction that likely will result

under the CDA – would grant immunity to speech reproduced online but allow liability for identical

reproduction offline.145 For instance, a print newspaper article would be subject to liability while the

online version of that same article on the newspaper's website would be immune. As disconcerting as

that idea may sound at first, it is an equitable result. Liability arising from printed publications has

significantly less deterrent effect on speech as a whole, given that it typically will affect only

professional media organizations with the expertise and resources to handle such situations.

Categorically immunizing online reproduction reflects the differing balance of equities involved in

144 For more discussion on the inappropriateness of subject matter or topic distinctions, see subsection c of this section, infra.

145 Troiano, 55 AM. U. L. REV. at 1468-9 (“[Immunity would] allow[] information that could not be published in a newspaper to be purposefully placed on a blog with no repercussions.”)

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online speech while respecting historical protections for individuals defamed by offline media.

b. FORM OF REPRODUCTION

Online reproduction's unique benefits to the public dialogue provide the strongest argument in

favor of immunity.146 A seemingly logical compromise, then, would be to immunize reproductions that

offer these unique benefits – namely, online commentary – while retaining the traditional media

standard for forms of online reproduction that mimic traditional methods of reproduction. Thus, point-

by-point refutation of defamatory quotes would be protected, while exact reproduction of an entire

defamatory news article with no additional content would not. This would seem to preserve the new

form of online dialogue while punishing only the sort of duplicate production that traditional media law

denies protection. However, distinctions based upon level of commentary are equally as unworkable as

distinctions based upon type of speaker and thus would entail a similar chilling effect on speech.

First, the question would arise as to what forms of speech qualify as “commentary.” Attempting

to define commentary would entail a value judgment about speech: we necessarily would ask what

kinds of statements offer sufficient opinion or analysis to qualify for protection. Such a judgment

would involve the danger that cruder examples of commentary would be passed over in favor of more

palatable speech, or that in-depth analysis would be privileged over gut reactions to current events –

results that would degrade online speech's grant of wide access to a speedy public dialogue.147

More importantly, commentary is of value even in its most reactionary or minimal forms. One

can analogize to the seminal First Amendment case Cohen v. California:148 imagine an online speaker

who posts a link to third-party defamatory content accompanied by the statement, “What the [insert

favorite expletive]?” Crude, yes, and probably not representative of serious contemplation, but it

146 See section III(b) of this paper, supra.147 Current defamation law already holds the danger of singling out less-mainstream speech for punishment. See Gertz,

418 U.S. at 349 (“Additionally, [defamation law] invites juries to punish unpopular opinion ....”) (citing the doctrine of presumed damages as a cause of this fact).

148 430 U.S. 15, 25 (1971) (holding that the phrase “Fuck the Draft” emblazoned on a jacket was protected First Amendment speech).

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expresses an emotional reaction to a statement that carries significant cognitive force.149 In their own

way, these expressions are an honest and valuable part of the public dialogue.

A commentary-based standard would be problematic even if it were implemented in a way that

did not discriminate between forms of speech. Reproductions with no appended commentary at all still

carry an inherent level of commentary. The message implicit in a reproduction is, “I think you should

be aware of this.” The discussion board user who replies to a topic by linking a news article adds to the

dialogue even if she does not comment further, because the reproduced content becomes part of the

pool of information from which the discussion draws. Further, a standard that exempts only speech

that includes a minimum amount of commentary would ignore the communal benefits of online speech.

While some reproducers may merely pass on a given piece of content, the fact that they have done so

will inject the content into the online dialogue, opening the material up for others' commentary.

Finally, the legal uncertainty that would arise from a commentary-based standard again would

produce an unacceptable chilling effect on online speech. Online speakers would face another

complicated factor in predicting their likelihood of liability, making them more likely to self-censor.

Parties with non-meritorious claims could use the commentary test as another way to ensure that the

case may proceed through the early stages of suit.

c. SUBJECT MATTER OF REPRODUCTION

The most common exceptions to defamation liability revolve around the subject matter of

speech.150 Statements concerning public figures, matters of public concern, and similar “public interest”

subjects receive special protection under the First Amendment,151 which first and foremost defends the

peoples' ability to maintain a robust dialogue on issues of government and society.152 Proponents of

149 See id.150 See section II(b) of this paper, supra.151 For instance, public figure plaintiffs must prove that defendants published defamatory material with “actual malice” in

order to prevail, while private figures must prove mere negligence. See Sullivan, 376 U.S. 254 (establishing actual malice standard for public figure plaintiffs in defamation actions); Gertz, 418 U.S. 323 (establishing negligence standard for private figure plaintiffs).

152 See Sullivan, 84 S.Ct. at 720 (“[T]hat freedom of expression upon public questions is secured by the First Amendment

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online reproduction liability might attempt to dismiss immunity at the outset by arguing that existing

privileges related to these subjects already protect the online speech that has value. However, the very

concepts of public figure and public concern are antiquated notions that have little application to the

online speech environment.153 Attempting to condition online liability on these conceptions would

further the chilling effect on speech.

Individuals may become public figures through their position or through action that inserts

them into public controversy.154 Exposure of oneself to criticism in the context of issues of public

concern is part of life in a civilized community – doubly so in one that places a premium on the

freedom of speech.155 This only becomes more true as technology increasingly links individuals

together. The question of what amounts to public controversy or matters of public concern, however, is

a “source of persistent confusion.”156 A useful way to conceptualize these doctrines is to relate them to

“newsworthiness” as it applies to media entities.157 The problem is that newsworthiness has taken on

an entirely different meaning in the online context.

For a topic to be “newsworthy” in the traditional media, it must be considered worthwhile

enough to warrant coverage. This consideration takes into account some combination of the public's

interest in receiving the information and the media entity's interest in making a profit. The entity

has long been settled by our decisions. The constitutional safeguard ... ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’) (qouting Roth v. United States, 77 S.Ct. 1304, 1308 (1957)).

153 Perzanowski, 94 CAL. L. REV. at 833 (“The public figure doctrine has become an anachronism. Current First Amendment protections for defamation defendants are centered on a simplistic and antiquated conception of the communications environment....”); Peterson, 79-MAR WIS. LAW. at 10 (“By their nature, blogs may not fit within the private/public framework that the U.S. Supreme Court constructed for defamation law more than 30 years ago.”).

154 See Curtis Pub. Co. v. Butts, 388 U.S. 130, 155 (1967) (ruling that plaintiff Butts became a public figure due to his position as athletic director of a public university and that plaintiff Walker became a public figure due to “purposeful activity amounting to a thrusting of his personality into the ‘vortex’ of an important public controversy....”).

155 Time, Inc. v. Hill, 385 U.S. 374, 388 (1967) (“Exposure of the self to others in varying degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential incident of life in a society which places a primary value on freedom of speech and of press.”).

156 Perzanowski, 94 CAL. L. REV at 868.157 Even though newsworthiness seems to be the essential characteristic of public concern and public controversy, the

Supreme Court explicitly has denied any exact correlation. The Court equated the two in Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971), but repudiated that concept in Gertz, 418 U.S. 323, and subsequent cases. However, the Court has advanced no contrary formulation for the concepts of public concern and public controversy. If the two concepts are not synonymous with newsworthiness – which remains to be seen – they nonetheless are closely related enough for the purposes of this discussion.

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devotes its limited amount of resources to those topics that have the highest value under this metric.

Subjects that are not desirable enough to warrant treatment from traditional media speakers are not

considered newsworthy.

On the Internet, however, a piece of information is “newsworthy” if even one person believes it

is worth discussing. There is no scarcity of print space or audiovisual time online nor any other barrier

preventing speakers from producing or reproducing information regarding anything that interests

them.158 Correspondingly, citizens now can find information regarding nearly anything that interests

them, which is a tremendous benefit to the public dialogue. The concept of a scope of newsworthy

topics defined by traditional media entities – or, worse, by courts – is contrary to the very nature of

online speech.159

The breakdown of newsworthiness signals the breakdown of the public figure doctrine. As the

scope of newsworthy topics expands toward infinity, an individual's insertion into less-traditionally

newsworthy ventures warrants his classification as a public figure or temporary public figure. Beyond

a certain point, the “public figure” concept loses its meaning.160

To return to an earlier example, accusations about a citizen’s allegedly illicit activities might not

have been considered to be of public concern under traditional standards. Due to the weaker public

concern or controversy element, reprinted accusations against the citizen might thus have failed to

qualify for protection under the actual malice standard for public figures. However, it is an abuse of

semantics to suggest that such accusations of wrongdoing are not matters of concern to some members

158 This is not to say that online speakers do not utilize any form of “newsworthiness” judgment. Speakers still choose to limit the scope or amount of discussion in order to make their speech more coherent or attractive. Discussion also still is limited by the amount of time that a speaker is willing to devote to speech activities. However, these are lower barriers than the newsworthiness concerns of the traditional media; given the sheer number of online speakers, little will go undiscussed.

159 See Lidsky, 49 DUKE L.J. at 896 (“The mainstream media no longer have the power to exclusively define what is 'news' ....”).

160 Obviously this discussion has serious implications for the public figure and public concern doctrines in defamation law as a whole. However, the question as to what effect such an evolution of these doctrines would have on defamation liability for original statements is beyond the scope of this paper. The unique benefits of online reproduction, the possible harm to these benefits arising from reproduction liability, and the decreased ability of reproducers to ascertain the defamatory nature of statements are sufficient to allow a separate standard of liability on this issue.

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of the public – for instance, those who are close to the accused individual, or those who allegedly have

been harmed by his activities.

In the pre-online era, it made sense to afford extra protection to individuals such as the accused

local businessman because they did not have much opportunity to rebut the media's accusations.161

Traditional defamation law sensibly took for granted that the defamer typically would be the much

more powerful party.162 Much like citizens who wanted to disseminate their views, accused individuals

generally had no way of reaching a large audience. In the context of online speech, this assumption is

false.163 Defamed individuals typically have a similar ability to speak online as do their accusers.164

An individual accused by a blogger can respond on her own blog, comment on the accusing blog, post

a reply to a forum where she was accused, or perhaps even ask the blogger to retract or correct his

statements.

Any fear that online reproduction unchecked by a public/private figure distinction would result

in the undue dissemination of private matters are overstated. Online speakers will reproduce

information they think is worth disseminating and online information consumers will seek out the

information they find is worth obtaining. Matters thus generally will remain within the localized

sphere in which they belong. Local accusations of illicit activity, for instance, will become a part of the

discussion among the local community; it is unlikely that others will consume that information to any

161 Along with intentional insertion into public controversy, this is one of the two reasons why the Supreme Court distinguishes between public and private figures. See Gertz, 418 U.S. at 362-3 (holding that the actual malice requirement is not appropriate for private individuals because they “do[] not have the same degree of access to the media to rebut defamatory comments [as do public figures]”); Curtis Pub. Co., 388 U.S.at 155 (“[Public figures have] sufficient access to the means of counterargument to be able ‘to expose through discussion the falsehood and fallacies' of the defamatory statements.”) (quoting Whitney v. People of State of California, 274 U.S. 357, 377 (1927) (Brandeis, J., dissenting)).

162 Jennifer Meredith Liebman, Recent Development, “Defamed by a Blogger: Legal Protections, Self-Regulation, and Other Failures,” 2006 U. ILL. J.L. TECH. & POL'Y 343, 364 (“[C]lassic libel cases such as [Sullivan] were decided on the theory that the tort of libel protected a weaker victim of defamation from a powerful defamer.”).

163 See Liebman, 2006 U. ILL. J.L. TECH. & POL'Y at 364 (“In terms of online media ... the defamer is not necessarily the more powerful party. [L]aws designed to protect what is assumed to be the weaker, injured party, from the powerful defamer may not serve their purposes when financial resources of the parties are taken into consideration”).

164 Peterson, 79-MAR WIS. LAW. at 10 (“Unlike traditional means of publication ... [the Internet] can help level the playing field for private and public figures.... Indeed, both private and public figures have the same means and access, at least on the Internet, to counter false statements.”).

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appreciable extent. Occasionally matters may attract attention from an audience beyond the typical

sphere of interest, but the fact that it attracts a wider audience is evidence that the material is of wider

public concern.165

After the preceding subsections of this paper it bears little explication that conditioning liability

on the subject matter of the reproduction would have a chilling effect on speech. Allowing such a

condition would force online speakers to make a determination of an individual's public or private

status before choosing to reproduce content targeted at that individual, which would be an

insurmountable barrier to some speakers. It would give prospective plaintiffs one more loophole

through which they could bring meritless cases to at least the early stages of suit.

d. KNOWLEDGE AND NOTICE

The preceding arguments have made much of the idea that it would be prohibitively difficult for

online speakers as a class to determine whether third-party speech is defamatory. However, the unique

character of online reproduction requires a bright-line rule of immunity even where online speakers

have notice that the content may be defamatory and even where online speakers know the content is

defamatory.

It is well-established that notice liability for producers or reproducers of third-party statements

would have a chilling effect on speech.166 This discussion has arisen most often in situations where a

website or other Internet service provider has hosted third-party content,167 though the concept applies

165 See Sableman, Mark, “Fair Comment, The 'Brightest Jewel in the Crown of Law,' as Protection for Free Speech and Against Abusive SLAPP Suits,” 61 J. MO. B. 132, 138 (“'[T]he public is entitled to pass an opinion on everything which in any way invites public attention.'”) (emphasis in the original) (quoting dictum in Diener v. Star-Chronicle Publishing Co., 132 S.W. 1143, 1149 (Mo. 1910)).

166 See Zeran, 129 F.3d at 333 (“[L]iability upon notice has a chilling effect on the freedom of Internet speech.”); H. Brian Holland, “In Defense of Online Intermediary Immunity: Facilitating Communities of Modified Exceptionalism,” 56 U. KAN. L. REV. 369, 395 (2008) (“Under traditional liability rules, intermediaries may be forced to adopt a least-common-denominator approach, resulting in overly broad restrictions on expression and behavior. A modified distributor-with-knowledge approach ... similar to that employed by the DMCA, may produce the same type of chilling effect.”).

167 See, e.g., Id. ("[N]otice-based liability for interactive computer service providers would provide third parties with a no-cost means to create ... lawsuits. Whenever one was displeased with the speech of another party ... the offended party could simply 'notify' the relevant service provider, claiming the information to be legally defamatory.”).

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equally to online reproducers. Since reproducers typically will not be in a position to judge the truth or

falsity of the reproduced statements, it will be difficult if not impossible for them to ascertain whether

they would be susceptible to liability if they refuse to remove the content following notice.168 If such

parties face liability when they do not remove content following notification, they will tend to remove

the content regardless of the validity of the notice.169 Thus, parties displeased with reproduced speech

will be able to effect the speech's removal regardless of whether their complaints have merit.170

Abuses of notice-based schemes in other areas of online communications law have proven that these

chilling effects occur.171

A rule that imposed liability when the reproducer suspects or even knows the third-party

material was defamatory similarly is inappropriate. As established by the fair report and neutral

reportage privileges, there can be merit in reproducing defamatory speech even with knowledge of its

defamatory character because the fact that the speech was made can be newsworthy in itself.172 This is

even more true of online speech, which features commentary and discussion about controversial

allegations that have benefits to the public dialog that exceed the value of traditional reproduction.

Additionally, a knowledge-based standard again would increase the chilling effect of suit. Such

a standard would entail a fact-intensive determination of the defendant's mental state. Any plaintiff

could allege that the defendant knew the matter was defamatory in order to ensure that the suit made it

168 For the reasons why it is difficult for online speakers to make such determinations, see section III(c) of this paper, supra. Contra Troiano, 55 AM. U. L. REV. at 1479 (“[A]sking a blogger to remove defamatory content from the blogger's comment section is ... not burdensome, for a blogger should not knowingly allow defamatory content on his site, even if the blogger did not initially select the content for publication.”).

169 Zeran, 129 F.3d at 333 (“Because service providers would be subject to liability only for the publication of information, and not for its removal, they would have a natural incentive simply to remove messages upon notification, whether the contents were defamatory or not.”).

170 See Barrett, 146 P.3d at 525 (“Notice-based liability for service providers would allow complaining parties to impose substantial burdens on the freedom of Internet speech by lodging complaints whenever they were displeased by an online posting.”).

171 A recent study found that the DMCA takedown provisions were “commonly being used . . . to create leverage in a competitive marketplace, to protect rights not given by copyright (or perhaps any other law), and to stifle criticism, commentary and fair use.” Jennifer M. Urban & Laura Quilter, “Efficient Process or 'Chilling Effects'? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act,” 22 SANTA CLARA COMPUTER & HIGH TECH. L.J. 621, 687 (2006).

172 See sections II(b)(1) and II(b)(2) of this paper, supra.

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to the early stages. Because of these factors, the benefits of online reproduction and the increased

chilling effect of litigation makes reproduction of defamatory speech even with knowledge worth

protecting.

V. DEFAMED INDIVIDUALS' ABILITY TO SEEK REDRESS

It is inevitable that online reproduction immunity in some cases will restrict defamed

individuals' ability to seek redress for the harm they have suffered. Given the value of online

reproduction even when defamatory, this should not affect the inquiry under the First Amendment.173

However, it is worth noting that while reproduction immunity impairs defamed individuals ability to

seek redress, it does not do so unduly.

Reproduction immunity in no way affects defamed individuals' right to seek redress against the

original defamer and to have her named cleared in court. The availability of these remedies means that

the defamed individual will have some means of redress regardless of the ability to sue reproducers.

Some commentators have argued that originators of defamatory statements should be liable for

additional harm caused by reproductions of their statements as well;174 if such a standard were

instituted, the defamed individual would have the opportunity to receive compensation for all

disseminations of the defamatory material without pursuing reproducers.

Some commentators argue that online reproduction immunity places an undue restriction on

defamed individual's right to seek redress because of a purported difficulty in bringing online speakers

to justice. The premise is that ill-intentioned online actors typically are “far beyond the reach of

conventional law.”175 If the original speaker cannot be found and reproducers are immune, the

173 See discussion of exceptions to defamation liability in section II(b) of this paper, supra, none of which take into account any variation in harm suffered by the defamed individual.

174 See, e.g., Del Medico, 31 FDMULJ 1409, 1440 (2004) (“[T]he original publisher is rightly held liable for actual damages for third party publication.”)

175 Doug Lichtman & Eric Posner, “Holding Internet Service Providers Accountable,” 14 Sup. Ct. Econ. Rev. 221, 226 (2006) (discussing originators of malicious computer code); Thomas H. Koenig & Michael L. Rustad, “Rebooting Cybertort Law,” 80 WASH. L. REV. 335 (2005) (“Consumers have the right to pursue primary wrongdoers through tort litigation, but this is rarely a realistic option because the typical cybercriminal finds it easy to default by disappearing ....”).

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argument holds, the defamed individual has no way of seeking justice.176

These fears are overstated.177 Nearly all online information is traceable to some extent,178 and

technological innovations are only making this easier.179 Further, the court system makes it easy for

aggrieved parties to subpoena Internet Service Providers and other parties for information regarding the

identity of an online speaker.180 So-called “John Doe” lawsuits allow plaintiffs to file suit before they

know the identity of the defendant, allowing them to utilize the legal process to find the correct

speaker.181

Similar fears about the ability to seek justice against original speakers equally are overstated.

For instance, a related issue is the problem of jurisdiction – the Internet can allow individuals to

defame foreign citizens while remaining safely outside the foreign nation's legal reach. However,

governments have begun to develop methods of applying liability in such cases.182

Two of these fears are more valid. One is that original speakers are more likely to be judgment-

proof and thus will not be able to compensate defamed individuals.183 Because online speakers tend to

be individual citizens, it is true that some will not have the means to satisfy damage awards. The other

fear is that some speakers might go to extremes to publish anonymously, such as by using only public

176 Holland, 56 U. KAN. L. REV. at 392 (“[The inability to find originators] creates a situation in which significant individual harms cannot be legally deterred or remedied ....”) (describing the arguments of proponents of reproduction liability).

177 Holland, 56 U. KAN. L. REV. at 392 (“These fears are either misplaced or overstated. [I]t is not clear that a significant number of bad actors are beyond the reach of the law.”)

178 Katharine Q. Seelye, “Snared in the Web of a Wikipedia Liar,” N.Y. TIMES, Dec. 4, 2005, (“'[D]efamation [is] easily pursued through the courts because almost everything on the Internet [is] traceable ....'”) (quoting Stanford law professor and cyberspace expert Lawrence Lessig) (available at http://www.nytimes.com/2005/12/04/weekinreview/04seelye.html).

179 Holland, 56 U. KAN. L. REV. at 392 (“Advances in technology are making it increasingly possible to locate and identify bad actors online, such that online anonymity is difficult to maintain.”).

180 Lidsky, 49 DUKE L.J. at 889 (“Once a complaint is filed, it is a simple matter to get a subpoena to force the ISP to divulge the anonymous defendant's identity.”); Seelye, http://www.nytimes.com/2005/12/04/weekinreview/04seelye.html, (“'[S]ubpoenas [are] not that hard to obtain.'”)(quoting Lawrence Lessig).

181 See generally Lidsky, 49 DUKE L.J. 855 (discussing John Doe suits).182 Holland, 56 U. KAN. L. REV. at 393 (“[W]here the bad actor is identified but is found outside the jurisdiction, sovereign

governments have developed methods for resolving disputes to permit the direct extraterritorial application of domestic law ....”); Jack L. Goldsmith, “Against Cyberanarchy,” 65 U. Chi. L. Rev. 1199, 1232-37 (discussing methods for resolving conflicts between sovereign governments).

183 See Koenig, 80 WASH. L. REV. at n.268.

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computers, providing false identifying information in order to access the computer, and revealing no

real identifying information along with the defamatory online speech. A variation of this could be that

online speakers will use such methods in order to create a fake original post, which they then can

reproduce with impunity. However, defamation law has been short of examples of such occurrences

thus far.184

These final two concerns are the strongest arguments against online reproduction immunity.

For the forseeable future, it is possible that some defamed individuals will go uncompensated if

defendants cannot pay damages or if speakers use online-specific evasive tactics get around the law.

As unfortunate as this may be for defamed individuals in what few exceptions may occur, these

extreme examples are not enough to counterbalance the benefits of online reproduction that would be

lost by a standard of reproduction liability.

VI. CONCLUSION

Online reproduction, like online speech as a whole, is distinct from speech that exists in the

traditional media environment. It holds benefits to the public dialogue beyond those of traditional

reproduction, and those benefits are so compelling that they have constitutional value even when

defamatory. Online reproducers also are distinct from traditional media speakers. The characteristics

of the average online reproducer – in other words, the average citizen – make their speech susceptible

to suppression by the mere threat of litigation.

The need to protect the public dialogue created by online speech and online reproduction makes

appropriate a standard of absolute immunity for online reproduction of defamatory third-party speech.

Whether this occurs under the CDA or new legislation or by the efforts of the common law is

irrelevant. The law must recognize that online speech is a fundamentally new form of communication

184 Plaintiffs have failed to locate online tortfeasors in at least one case, though it was not a defamation action. Doe v. GTE Corp., 347 F.3d 655, 656 (7th Cir. 2003) (noting that the original sellers of illicit online videos “defaulted or were dismissed when they could not be located or served.”).

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and that the First Amendment – and society itself – will not tolerate attempts to hold it back.

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the web difference: a non-cda-230 rationale against...

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