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 Johann Gutenberg's printing press, the Internet has revolutionized the way we communicate. Defamation law to the present was created without the vision of the ease of communication the Internet has afforded.

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 that encountered the printed copies. The Internet allows almost anyone, to transmit a message across the world to thousands, even millions, of people almost instantly at almost no incremental distribution cost. This new medium 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." 1

In doing so, the author of Internet news group postings is unencumbered by the usual editorial processes involved with conventional media sources. Those posting to a news group or news bulletin service or Web page, aided only in the distribution of the message, are effectively taking up the roles of reporter, editor, publisher and some would even argue distributor.2 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 roles, simultaneously, of a publisher, editor and author.

The new technology has, thus far, has resulted in little consideration of its relationship defamation law.3 The Supreme Court's comparisons of the amateur Internet web site proprietor to "a pamphleteer" or "a town crier" raise unique issues about how this new medium should be regulated, if at all.4 Like the printed newspaper in its infancy, the Internet newsstand is flooded with dubious sources and suspect news. In all the furor over the proper breadth of First Amendment protections, unique problems arise when applying the tort of injurious falsehood to the Web.5  Ever since New York Times v. Sullivan first recognized them to be at odds, any discussion of First Amendment protections and their limits, necessarily implicates the remedies available for defamation and disparagement plaintiffs.6 

Although the terms "libel" and "slander" are commonly thought of together under the general umbrella of defamation, the two have distinct origins.7 Before the invention and proliferation of the printing press, slander was first recognized as a civil action available to victims of spoken defamation at common law.8 Libel came later, as a criminal action most often employed to punish critics of government and religion.9 Eventually, libel joined slander in common law and today remains a civil cause of action. In the context of the media used today, it is the permanence and tangible nature of libel that is best used to distinguish it from slander.10

The distinctions between the two are today are becoming more trivial. 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 chattels and encompasses damages done to any pecuniary interest.11 Originally, suits were strictly the domain of the state courts, baring diversity jurisdiction.  That all changed when the Supreme Court decided New York Times v. Sullivan. 

The Supreme Court first entangled defamation with the first amendment protection of free speech12 when it decided New York Times v. Sullivan.13 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."14 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."15

In Sullivan, a Montgomery, Alabama city commissioner, in charge of the city's police force, claimed to be libeled by a New York Times story charging the police with abusive behavior.16 Although the Court found factual inaccuracies to exist in the New York Times story, the court rejected the notion that a finding of falsity alone revokes the constitutional protections available to a publisher.17 Thus, the Court's new "actual malice" test was fist applied to defamation18 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."19

In the Butts and Walker cases the Supreme Court first considered the impact of the Sullivan 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."22 Butts 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. The defendant's article claimed that Butts had made the team's play book and strategies available to the opposing Alabama coach.23 Walker was a former soldier turned political activist.24 He 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.25

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."26 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."27 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 Sullivan.28

The plurality opinion in Rosenbloom v. Metromedia, Inc. extended the Sullivan privilege to defamation of at least some private persons who have come to be involved in matters of "general or public interest"29 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."30

 The Court subsequently revealed the limits to a publisher's Constitutional privilege, and preserved a narrow niche for defamation in the Gertz case31.  Elmer Gertz represented the family of a youth killed by a Chicago police officer in their civil action against the officer.32 Gertz, later, brought libel action against Robert Welch Inc., the publisher of American Opinion33, for an article it published proclaiming Gertz to be a 'Leninist' and 'Communist-fronter" involved in a conspiracy to frame the officer involved and discredit local law enforcement officials nationwide.34 The Supreme Court found the assertions made in the American Opinion article "contained serious inaccuracies."35 In addition, the Court found the managing editor made no effort to discover whether the charges made against Gertz, by the freelance author of the article, were reasonably defensible as true.36 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.37 Retracting the plurality pronouncements in Rosenbloom, the Gertz court declined to hold the Sullivan 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."38 The case was decided on a narrow five to four majority. 

It has been difficult to categorize the players in defamation cases taking place over the Internet. 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 were unlikely to burden service providers with "publisher status."39 Then, the Prodigy case announced that Internet service provider could not automatically be excluded from publisher liability.40  Congress intervened in 1996 with passage of the Communications Decency Act. Section 230 of the Communications Decency Act, a provision unaffected by ACLU v. Reno41, prohibits Internet service providers from being treated as publishers.42

  Thus, in Zeran v. America Online, the Supreme 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.43

Because the new media is changing the way news is gathered and distributed the definitions of "publisher", "distributor", "reporter" and  "editor" are also changing.  In light of the Zeran decision, Internet service providers are no longer occupying the role of editor or publisher. It has become much easier for one person to occupy all of three categories simultaneously and yet possess the capacity for distributing his "news" or opinions to more than a few hundred local readers. The Web page creator is clearly a publisher.  Its not so clear that "editor" really means anything here and the "distributor" is the Web itself.

After the Oakmont decision, the Matt Drudges of the world have no editorial barriers.  No news editor, mindful of the publication's integrity, filters the information before it is published.  Similarly, the author is not constrained by the normal incremental economic costs of publication and distribution.  It costs the New York Times a lot of money to add a page to an edition.  Space has always equaled money in the printed medium.  Likewise, time is money in the broadcast media.  Neither time nor space is of limited quantities, in the same way, on the Internet.  Adding 2000 more words to a news story posted on the Web does not significantly increase its publication costs.  While the time of viewers is limited, Internet cites don't have airing times.  Assuming access is not prevented by an equipment or software failure, Web pages "air" twenty four hours a day, seven days a week and 365 days a year.  Thus, the Internet's publishers are hardly constricted by incremental costs as are their counter parts in other media.

Alternately, the big media agent, 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.44

More recently, publicly traded corporations have increasingly been complaining of "cyberlibel" (online libel).45 More often than not the claims are made against anonymous posters on web bulletin boards.  Their identities revealed by force of subpoena.

Disparagement of corporations is rampant on the Web.  Every company from Wal-Mart to Ford has web sites dedicated to telling fellow consumers why they "suck"46 Consumers are able, like never before, to cheaply and effectively express their dissatisfaction and frustration to each other.  For the reader there is no way of knowing whether the horror stories posted are testimony of facts that actually occurred or merely a saboteur.  A competitor could disparage anonymously posing as a dissatisfied customer.  The fraud is much more easily perpetrated on the Web. 

The Internet not only allows everyone to be a publisher, but an anonymous publisher.  It is relatively easy to publish on the Internet without revealing one's identity and thereby minimizing the publisher's exposure to lawsuit.  Following the Communications Decency Act of 1996, service providers found license to closely guard the identity of their subscribers.  While subpoena is still available to the plaintiff forcing the ISPs to reveal what it knows about a user, sophisticated users are able to hide their identity on the web.  Readers are unlikely to attach as much weight to anonymous statements made on the Internet.  Nevertheless, a defendant may never be identified.  More likely to cause problems than the anonymous defamer is the defamer who misrepresents their identity.  By pretending to be a publisher of credibility the defamer can, at least temporarily, damage the reputation two people: the defamed and the author they are impersonating.

 Jurisdiction may also prove to be troublesome for the private person defamed over the Internet.  Following the Supreme Court's decision in Gertz, the Court has reserved the remedies available to private citizens in defamation suits to the states.  States differ in their defamation law, especially where applied to private citizens not burdened by 1st Amendment limitations.  Should the posting of defamatory statements on the web received by citizens of another state constitute sufficient minimum contacts for the foreign state to have jurisdiction?  In the case of New York Times v. Sullivan less than 40 copies of the issue containing the offensive advertisement were known to have been circulated in the entire state of Alabama. With the Internet, it isn't unthinkable to have a case where the plaintiff lives in one state, the defendant in another, and the injury occurred in yet another.  Diversity of the parties makes the case proper capable of being heard in a federal district court, but the issue would remain: Which state's law should be applied?

The distinction between the private and public figure is blurred in the Internet medium.  Does one become a public figure by merely using the Web?  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 the purposes of 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, is 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.  Surely, 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 is 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 his own web page and air messages in 92 countries!47  Does one become a public figure simply by posting a Web page.

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. Is Matt Drudge now sufficiently famous to be considered a "public figure" should he be defamed?  By posting his news articles on the Web, has Drudge interjected himself into a controversy of public concern for each topic he has written an article about?

Injury in fact, where defamation is concerned, rests in one's reputation suffering within a community.  It is very difficult to show how a bond trader in New York is injured by a newspaper distributed among Sherpa's in Nepal in which an article appears alongside a photo; the caption declaring him to be a cannibal.  Or is it? Suppose the bond trader in New York is an avid rock climber in his spare time and has been planning a trip to Nepal for years only to find when he gets there no guides will take him.  For some reason, unbeknownst to the bond trader, the Sherpas don't want anything to do with him.  Community isn't easy to define and it isn't always geographically constrained.  With the Internet there's no reason why it will ever be solely a geographic place again.  Many people now spend more hours a day communicating with people in other countries, across oceans than with their next door neighbor.  But the Internet should be thought of as merely displacing our notion of community but expanding it.

Millions of people who never would have communicated with each other via the telephone or by mail are now finding each other on the web.  A lady, living in Phoenix, Arizona, who's fanatic about parrots can easily find others around the world with similar interests.  The odds of two people, separate by thousands of miles, meeting before the advent of the Internet is slim to none. Yet, a chat room for parrot lovers makes it possible for the fanatic in Phoenix to meet a parrot breeder from Switzerland and three others with whom she now does regular business.  Thus, the Internet allows anyone who has access to it, access to virtually any other person with access.  Add a common interest and they begin to find each other familiar; becoming members of a community through their regular contact over the Internet.  Community is a fluid notion on the Internet, capable of transcending the notions that existed just twenty years ago.

Each of us begins to look more like a public figure when a web user.48  We're all out there and we all have access to the media at a minimal cost and without editors.  Access to the media and each other directly 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.  Integrity must still 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."49   With the lightning quick reflexes of the electronic herd, the diligent but misguided are not fooled for very long.  Those who rely on sound information in their decision making quickly sift well researched reporting of integrity from the bullocks.  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 newsstand and a myriad of similar news sites live in cyberspace.  The question with defamation appearing in these sources will remain: "Does anyone really rely on them as reporting truth or are they purely entertainment?" 50

There is careful balance to be struck between creating an Internet that is free, robust, and uncensored and one that protects private individuals from injurious falsehood by demanding accountability of defamers.  This country has always had a deep, almost religious commitment to free speech.  The Internet allows more speech by more people.  J.S. Mill would have us believe that this is always good.  The "market place" of ideas is entrusted with the task of fettering out the unreliable, unsupported, and just plain illogical statements.  But, clearly, defamatory statements  are, in fact, relied upon and injuries do occur.  The "market place" is inefficient and incapable of offering remedy to the victim of injurious falsehood beyond the eventual embrace of what it judges to be truth.  Integrity of a source is much more difficult for Internet users.  Authors are more easily kept anonymous and sources more easily veiled than with prior media.

1 Reno v. ACLU, 929  F. Supp. 824, 843 (E.D. Pa. 1996)

2  Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997)

3  "New technologies always have created wrinkles in defamation law. For example, the advent of broadcast television caused a dilemma over what to call defamation over the airwaves: Was it slander, or libel? In an earlier day telegraph operators faced liability questions of a different sort: Were they required to transmit telegrams that appeared defamatory, and if so, were they liable for the contents?"  R. Hayes Johnson, Jr., Note: Defamation in Cyberspace: A Court Takes a Wrong Turn on the Information Superhighway in Stratton Oakmont, Inc, v. Prodigy Services Co. p.614.

4 Id at 870.

5 "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.

6  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).

7 See Generally W. Prosser, Handbook of the law of Torts    (4th Ed. 1971).

8 MARC A. FRANKLIN & ROBERT L. RABIN, TORT LAW AND ALTERNATIVES 876 (6th ed. 1984).

9  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).

10  See W. Prosser, Handbook of the law of Torts § 111, at 737 (4th Ed. 1971).

11 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."

12  Its application to the state of Alabama via the 14th Amendment.

13  See Generally New York Times v. Sullivan 376 U.S. 254, (1964).

14 Id. at 272.

15 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).

16 New York Times at 254.

17 New York Times at 272.

18 Although earlier applied in disparagement cases.

19 New York Times at 280.

20 Id.

21 Id.

22 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.

23 Id at 135.

24 "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.

25 Curtis Publishing Co. at 139.

26 Curtis Publishing Co. at 154.

27 Curtis Publishing Co.  at 154. Citing Sulzberger, Responsibility and Freedom, in FREEDOM OF THE PRESS FROM HAMILTON TO THE WARREN COURT 409, 412.

28 See separate opinions of Chief Justice Warren, Curtis at 164; Justices Black and Douglas, Id at 170; Justices Brennan Id. at 172-73.

29 Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971).

30 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)

31 Gertz v. Welch 418 U.S. 323.

32 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.

33 A monthly publication associated with the John Birch Society.

34 Gertz at 326.

35 Gertz at 326.

36 Gertz at 327.

37 "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.

38 Gertz at 345-46.

39 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.)

40 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.)

41 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.

42 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."

43Zeran v. America Online 129 F.3d 327 (1997).

44 Zeran v. America Online at ___.

45  Lisa M. Nijm 21 J. Legal Med. 223

46See e.g. www.Walmartsucks.com and www.Fordsucks.com.

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

49 Abraham Lincoln.

50 Cf. Hustler Magazine v. Falwell, 485 U.S. 46 (1988).