The Internet allows a unique form of communication, unlike any other before it.  Never in history have so many people had direct access to information or to each other. The time and money required to communicate with millions has been drastically reduced. Like Gunter’s printing press, the Internet promises to revolutionize the way we communicate. Even under the most robust constitutional protections, the proliferation of one’s speech was always limited to the number of ears that heard it or the number of eyes encountered upon its transcription. The Internet allows almost anyone, to transmit their message across the world to thousands, even millions, of people almost instantly at almost no distribution cost. The new media has brought with it new meaning to the term “market place of ideas.” “…[A]ny person or organization with a computer connected to the Internet can ‘publish’ information.”   In doing so, the author of Internet news group postings is unencumbered by the usual editorial processes involved with conventional medial sources. Those posting to a news group or news bulletin service, aided only in the distribution of the message, are effectively taking up the roles of reporter, editor, publisher and some would even argue distributor.  The number of news groups, bulletin boards, and news agencies has exploded in recent years. It takes very little resources for one to set up there own web page or bulletin service on the web and assume the role of a publisher or bulletin board owner.

The new technology has, thus far, has resulted in little consideration of its relationship defamation law .  But the Supreme Court’s comparisons of the amateur Internet web site proprietor to that of “a pamphleteer” and “a town crier” raise unique issues about how this new medium should be regulated, if at all.  Like the printed newspaper in its infancy, the Internet new stand is flooded with dubious sources and suspect news. In all the fever over the proper breadth of First Amendment protections, unique problems with applying the tort of injurious falsehood to the web have received relatively little attention.   Yet, since New York Times v. Sullivan first recognized them to be at odds, any discussion of first amendment protections and its limits, necessarily implicates the remedies available for defamation and disparagement plaintiffs.

Defamation, Disparagement, Slander, and Libel

Although the terms “libel” and “slander” are commonly thought of together under the general umbrella of defamation, the two have distinct origins.  Before the invention and proliferation of the printing press, slander was first recognized as an civil action available to victims of spoken defamation at common law.  Libel came along later, as a criminal action most often employed to punish critics of government and religion.  Eventually, libel joined slander in common law and today remains a civil cause of action. In the context of today’s modern media forms, it is the permanence and tangible nature of libel that is best used to distinguish it from slander.
Yet, the distinctions between the two are today are becoming more trivial and both prior actions fall within the tort of defamation. A separate tort of disparagement was available specifically where the statement resulted in injury to one’s title to land or chattles and encompasses damages done to any pecuniary interest.  Defamation suits were strictly the domain of the state civil courts, baring diversity jurisdiction, until the supreme court decided New York Times v. Sullivan.

New York Times v. Sullivan:

The Supreme Court first entangled defamation with the first amendment protection of free speech  when it decided New York Times v. Sullivan.  The Sullivan court found the first and fourteenth Amendments made necessary, to create a new precedent where defamation is considered “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, an that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”  Prior to the Sullivan case, the court had considered libelous statements to lie within a “well-defined and narrowly limited class of speech, the prevention and punishment of which have never been though to raise any Constitutional problem.”  In Sullivan, a Montgomery, Alabama city commissioner, in charge of the city police force, claimed to be libeled by a New York Times story charging the police with abusive behavior.  Although the court found factual inaccuracies to exist in the New York Times story, the court rebuked the notion that a finding of falsity alone revokes the constitutional protections available to a publisher.  Thus, the “actual malice” test was fist applied to defamation  when the Sullivan court concluded “The Constitutional guarantee’s require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless demonstrated with clear and convincing evidence that the statement was made with “actual malice.”  “Actual malice,” defined by the Court, to be demonstrated by a showing that the defendant proceeded with either knowledge of falsehood or with reckless disregard of whether a statement was false or not.  The court rejected the commissioner’s libel claim holding “the Constitution delimits a State’s power to award damages for libel in actions brought by public officials against critics of their official conduct. Since this is such an action, the rule requiring proof of actual malice is applicable.”

The Butts and Walker Cases:

In the Butts and Walker cases the Supreme Court first considered the impact of the New York Times decision on libel actions instituted by persons who are not public officials, but who are ‘public figures’ and involved in issues in which the public has a justified and important interest.”  Butt’s was an athletics director, and former head coach, of the University of Georgia’s football team who brought a libel action against Curtis Publishing Co. for an article it published claiming that Butt’s had made the team’s play book and strategies available to the opposing Alabama coach.  Walker, a former soldier turned political activist,  initiated a libel action against a reporter and Associated Press after a news dispatch stated that Walker had led the violent resistance to the enforcement of court ordered desegregation at the University of Mississippi.  Considering the cases in a consolidated opinion, the Supreme Court, concluded that while “…libel action of the present kind cannot be left entirely to state libel laws, unlimited by any overriding constitutional safeguard, but that the rigorous federal requirements of New York Times are not the only appropriate accommodation of the conflicting interests at stake.”  Justice Harlan announcing a view held by four members of the court and concurring with the majorities judgment, thus, suggested an intermediary standard of protection be created for the “public figure” plaintiff in defamation suits where “a ‘public figure’ who is not a public official may also recover damages for a defamatory falsehood whose substance makes substantial reputation apparent, on a showing of highly unreasonable conduct constituting an extreme departure form the standards of investigation and reporting ordinarily adhered to by responsible publishers.”  However, Harlan’s differentiated standard did not carry the majority of the court. The rest of the court decided the difference between a “public figure” and “public official” was insufficient to require a softening of constitutional barriers erected in New York Times.

The plurality opinion in Rosenbloom v. Metromedia, Inc. extended the New York Times privilege to defamation of private persons where the statements concern matters of “general or public interest”  Rosenbloom, the owner of an adult book store, brought a defamation suit against a Philadelphia radio station for statements made regarding the raid on his business, and his arrest on obscenity charges. Here, the Supreme Court chose to apply the New York Times “actual malice” standard to  “all discussion and communication involving matters of public or general or public concern,” even where defendant is found to be neither a “public official” nor “public figure.”

The court revealed the limits to a publisher’s Constitutional privilege, and preserved a narrow niche for defamation in the Gertz Case .  Elmer Gertz, represented the family of a youth killed by a Chicago police officer in their civil action against the officer.  Gertz, later, brought libel action against Robert Welch Inc., the publisher of American Opinion , for an article it published proclaiming Gertz to be a ‘Leninist’ and ‘Communist-frontier” involved in a conspiracy to frame the officer involved and discredit local law enforcement officials nationwide.  The Supreme Court found the assertions made in the American Opinion article “contained serious inaccuracies.”  Additionally, the Court found the managing editor made no effort to discover whether the charges made against Gertz were reasonably defensible as true.  The court, looking to the factual question of whether Gertz was a “public figure” or “public official” found him to be neither for the purpose of the controversy in question.  Retracting the plurality pronouncements in Rosenbloom, the Gertz court declined to hold the New York Times standard to private plaintiffs, even where the issue is one of public concern, instead concluding “that the States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual. “The extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate state interest to a degree that we find unacceptable.”  The case was decided on a narrow five to four majority.

The Media Privilege and the Internet:

It has been difficult to categorize the players in this new media. The majority of the first Internet defamation cases that arose had almost exclusively dealt with the status of the Internet access providers.  Early on it appeared that courts would be unlikely to burden service providers with “publisher status.”  Then, the Prodigy case announced that Internet service provider could not automatically be excluded from publisher liability.   Congress intervened in 1996 with passage of the Communications Decency Act. Section 230 of the Communications Decency Act, a provision unaffected by ACLU v. Reno , prohibits Internet service providers from being treated as publishers.   In Zeran v. America Online, the court found that America Online was not a “publisher” despite having paid Mr. Drudge to write new stories and funding the web cite where such stories would then appear.   The new media is changing the way news is gathered and distributed and simultaneously the definitions of “publisher”, “distributor”, “reporter” and  “editor.” It has become much easier for one person to occupy all of these categories simultaneously and yet possess the capacity for distributing his “news” or opinions to more than a few hundred local readers. Alternately, the big media agent, perhaps in avoidance of liability, can effectively divide the titles and tasks of “publisher” and “author” to all but eliminate it as a single notion capable of liability.  This was the strategy successfully employed by America Online in the Zeran suit.

More recently, publicly traded corporations have increasingly been complaining of “cyberlibel” (online libel)  More often than not the claims are made against anonymous posters on web bulletin boards.  Their identities revealed by force of subpoena.

Public and Private Figure Distinctions on the Internet

 The distinction between the private figure and public figure is blurred in the Internet  media.  Does one become a public figure by merely using the web alone?  Does the frequent use of a bulletin board where the defamatory statement appeared qualify one as a public figure for the limited purposes of the topics discussed therein?  One of the reasons often articulated for even having the public figure distinction was that public figures have greater access to the offending media for rebuttal.  Can that still be said of defamation occurring over the Internet where virtually anyone can communicate cheaply with virtually anyone else?  Should there even be differing degrees of fault imposed on public and private figures?

 One should not become a “public figure” by use of the Internet alone seems logical at first.  None of us would consider ourselves, in the lay sense of word, to be publicly recognizable by our Internet use.  But we are.  Each of us, as users of this great enabling technology, are also enabling other people to learn about us.  Whether intended or not the mere use of the Internet makes much of one’s life public in ways that the use of television or printed materials never made possible.  Could you imagine if the television was watching you back, tracking what you watched and when, even knowing who watched it with you?  Although the Internet doesn’t allow anyone to peer into your living room (unless you set it up to do so) it does reveal data that is essentially you in nutshell.  Privacy is shrinking right along with the world; made smaller by the Internet.  People are capable of learning more about you by a search of the web than your neighbor might learn from peering faithfully out his window and occasionally nosing through your trash.  Like it or not, the Internet is making all of our lives more public.  However, some people are more interesting than others.   No doubt, people made famous by other media are also more exposed when using the web.  More people want to know what’s in Michael Jackson’s closet of skeletons than the average law professor at the University of Iowa, but both are, nonetheless, available for inquiry.  If you think of the Internet kind of like billion television stations all airing simultaneously those fifteen minutes are a lot easier to come by if you want them.  Virtually anyone can set up their own web page and have their web page sewn into the meta-tag hopper and wham your airing in 92 countries!

While most of us are just out there nailing up web pages and hoping for as many hits as possible, there are those who have truly become famous in the Internet media.  Matt Drudge, for example, became a household name, known for his expose reporting on the Internet that beat the papers to the punch.   Thus, it is possible for a person to become widely recognizable to the public, even famous, through the Internet media alone.

It is even easier for one to become a “public figure” for limited purposes on the Internet.  Simply making postings on a web site about a topic relative to the defamation, some would argue, amounts to the necessary interjection on oneself into a controversy.  By expressing one’s opinion, one is unwittingly raising the requisite degree of fault necessary to prevail in a liable action.

An argument for one standard applying to all Internet users who are not Political Figures

 The Rosenbloom distinction between public and private figures has always proven difficult to apply, it may now be untenable where the web is concerned.  Each of begins to look more like a public figure when a web user.  We’re all out there and we all have access to the media at a minimal cost and without editors.  Access to the media is much more available to Joe Public than ever conceivable with print, radio, or television.  Thus the average person’s ability to rebut an offensive statement is really only limited by her ability to reach the exact audience that received the defamatory statements.  Of course, credibility is and always will be at the heart of the issue.  Just as people are more likely put more stock in what Barbra Walters and Hugh Downs have to say to television’s popular long-running documentary program “20/20” than if the same pronouncements of fact where made by Geraldo, so too will credibility be vested in some Internet cites to a greater degree than others.  Trust must be earned on the Internet.  “You can fool all the people some of the time, and some of the people all of the time, but you can’t fool all the people all the time.”    With the lightning quick reflexes of the electronic herd, the misguided are not fooled for very long.  Well researched reporting of integrity is quickly sifted from the bullocks by those who rely on sound information in their decision making.  Meanwhile, there will always be those who crave bogus information for its own (perhaps entertainment) sake.  For those people the Enquirer and Weekly World News live at the news stand and a myriad of similar news sites live in cyberspace.  The question with these sources remains: “Does anyone really rely on them as reporting truth or are they purely entertainment?”
 

  Id at 870.
  “Nevertheless, there are categories of communication and certain special utterances to which the majestic protection of the First Amendment does not extend because they “are no essential part of any exposition of ideas, and are of such slight social values as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Bose at 504 quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).  “Libelous speech has been held to constitute one such category, see Beauharnais v. Illinois, 343 U.S. 250 (1952)” Id. at 504.
   See Isuzu Motors Ltd. v. Consumers  Union of United States, Inc. 1999 WL 819700,*5(C.D. Cal)citing Bose Corp. v.Consumers Union of the United States, Inc., 466 U.S. 485 (1984) also Blatty v. New York Times Co., 42 Cal.3rd 1033, 1045 (1986).
  See Prosser, torts, also cited in Acton’s Article
  MARC A. FRANKLIN & ROBERT L. RABIN, TORT LAW AND ALTERNATIVES 876 (6th ed. 1984).
   See W. Prosser, Handbook of the law of Torts § 111, at 737 (4th Ed. 1971). See also Curtis Publishing Co. v. Associated Press, 388 U.S. 130, 150 (1967).
   See W. Prosser, Handbook of the law of Torts § 111, at 737 (4th Ed. 1971).
  See 1987 Duke L. J. 727:
“Although drawing distinctions between specific examples of disparagement and defamation can sometimes be difficult, the theoretical distinction between the two torts is clear: disparagement actions protect property interests while defamation actions protect only reputation. Recent developments in constitutional law have affected defamation as they exist at common law to the elements of disparagement demonstrate that the two torts have always differed significantly. Both torts have always required a derogatory publication and have had substantially the same common law privileges.”
   Its application to the state of Alabama via the 14th Amendment.
   See Generally New York Times v. Sullivan 376 U.S. 254, (1964).
  Id. at ___.
  See Patricia Nassif Fetzer, The Corporate Defamation Plaintiff as Fist Amendment “Public Figure”: Nailing the Jellyfish, 68 Iowa L. Rev. 35, n22 (1982) quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-2 (1942).
  New York Times at 254.
  New York Times at 272.
  Although earlier applied in disparagement cases.
  New York Times at 280.
  Id.
  Id.
  Curtis Publishing Co. v. Associated Press, 388 U.S. 130, 133 (1967),  “The modern history of the guarantee of freedom of speech and press mainly has been one of a search for the outer limits of that right.” See Id at 148.
  Id at 135.
  “Walker was a private citizen at the time of the riot and publication.  He Had pursued a long and honorable career in the United States Army before resigning to engage in political activity, and had, in fact, been in command of the federal troops during the school segregation confrontation at Little Rock, Arkansas, in 1957.
  Curtis Publishing Co. at 139.
  Curtis Publishing Co. at 154.
  Curtis Publishing Co.  at 154. Citing Sulzberger, Responsibility and Freedom, in FREEDOM OF THE PRESS FROM HAMILTON TO THE WARREN COURT 409, 412.
  See separate opinions of Chief Justice Warren, Curtis at 164; Justices Black and Douglas, Id at 170; Justices Brennan Id. at 172-73.
  Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971).
  Rosenbloom at 44.  Justice Black, while concurring in the result, asserted once again, that the media should have unqualified immunity from libel even where defamatory statements made with prior knowledge of there falsehood.  Id. at 62. Meanwhile, Justices Marshall, Stewart, and Harlan all thought that the plurality in Rosenbloom had gone too far in expanding the constitutional privilege to actions brought by private citizens.  See id at 69 (Harlan , J., dissenting) See also Id at 79 (Mashall, J., dissenting)
  Gertz v. Welch 418 U.S. 323.
  Gertz v. Welch 418 U.S. 323, 325 (1974).  Note: Nuccio was eventually convicted of second degree murder in a separate, criminal case.  Gertz took no part in the criminal prosecution nor did he discuss the case in public or before the press.
  A monthly publication associated with the John Birch Society.
  Gertz at 326.
  Gertz at 326.
  Gertz at 327.
  “Respondent’s characterization of petitioner as a public figure raises a different question. That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.  In either case such persons assume special prominence in the resolution of public questions.” Id at 351.
  Gertz at 345-46.
  See Cubby, Inc. v. Compuserve, Inc., 776 F. Supp. 135, 140-42 (S.D.N.Y. 1991) (Compuserve found to be a distributor rather than a publisher and therefore not liable for defamatory statements over which it has no editorial control.)
  See Stratton Oakmont, Inc. v. Prodigy Services Co., No. 31063/94, 1995 N.Y. Misc. LEXUS 229, at *6-*10 (N.Y. Sup. Ct. May 24, 1995)  (holding Prodigy to publisher liability where Prodigy had advertised itself as the “family Internet provider” and sought to impose editorial control over its news groups.)
  While first amendment infringement concerns caused the court in ACLU v. Reno to declare unconstitutional some provisions of the Communication Decency Act, other provisions of the Act were left unaffected by the decisions. Specifically, section 230 establishes that no Internet provider shall be considered a ‘publisher’, where not the source of the defamatory content.
  See 47 U.S.C.A. 230(c)(1) : “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”
  I need to look this up again and put cite in here.
  Zeran v. America Online at ___.
   Lisa M. Nijm 21 J. Legal Med. 223

  See Web page of Nick Johnson of the University of Iowa’s College of Law

  Abraham Lincoln.
  See Fawell v. Flint   (need site here)